After an agreement has been reached, you may sometimes run into issues with trying to understand the terms of an agreement and how it applies, especially in relation to a child’s care. After intense litigation and/or negotiations, it can be difficult at times to communicate with your former partner in a way that focusses on your child’s wellbeing and this difficulty in communicating can potentially lead to further conflict.

Tracing all the way back to the 1980s, parenting coordination has played a crucial role in helping separated parents to target this issue by improving their co-parenting relationship and assisting parents to manage any issues that come up in relation to a child’s living or care arrangements in a way that captures a child’s needs and best interests. 

Who are parenting coordinators?

Parenting coordinators are generally highly specialised individuals who have a strong understanding of the family law system as well as extensive experience in working with families that have a high level of conflict or animosity. They often have a background in practising family law, family dispute resolution or preparing family reports, etc. 

When do you usually see parenting coordination take place? What happens?

Parenting coordination is a process that is usually ordered by the Court or consented by both parents after a final agreement has been reached on a child’s care arrangements. The process starts off by the separated parents taking steps to officially engage the parenting coordinator to act in relation to their matter. After this takes place, an initial consultation takes place between the parenting coordinator and the parents to gain an understanding of the individual circumstances surrounding a family, assess the issues of concern held by either parent or formulate an action plan. Following this, a parenting coordinator may arrange joint sessions between parents to assist with implementing an agreement with respect to a child’s care and building a healthy environment which reduces a child’s exposure to conflict.

The process itself may take place in person or via video or telephone conference, and the parenting coordinator essentially focuses on reducing a child’s exposure to conflict by:

  • Educating parents on how to best communicate with each other and make decisions together in a way that is primarily focused on a child’s needs;
  • Putting forward strategies to assist with managing any dispute between parents in relation to the implementation of any agreements reached with respect to a child’s care; 
  • Assisting parents to understand the impact of a child’s exposure to ongoing conflict;
  • Helping parents to adapt to the ongoing needs of a child; and
  • Providing resources and/or necessary referrals, alongside doing other things necessary to best assist parents with respect to co-parenting and/or understanding a child’s needs considering a family’s unique circumstances.

Is parenting coordination similar to mediation?

No. Although parenting coordination is a type of dispute resolution, the key aim of parenting coordination is to educate separated parents on how to best resolve any disputes arising from the implementation of existing agreements with respect to the child’s care. This contrasts with mediation, where the key aim is to assist both parents and/or parties to reach agreement. 

Another key difference is that parenting coordination is generally a non-confidential process which means that a parenting coordinator may be called upon to prepare a report or provide evidence in Court after receiving a request from either parent and/or by the Court to do so whereas mediation takes place in a confidential setting.

Parenting coordination is also an ongoing process as opposed to mediation which generally is a one-off session or sometimes series of sessions in complex cases.

How long does parenting coordination take place for?

Generally, parenting coordination can range from anywhere from a couple of appointments to up to around two years. It is also not unusual for parents to touch base with parenting coordinators to resolve an issue in dispute arising from the implementation of an agreement regarding a child’s care even after a period of two years.

What type of situations would benefit from parenting coordination?

Parenting coordination is used in situations where an agreement has already been reached with respect to a child’s care arrangement, however, a high degree of conflict or animosity is still prevalent between the parents and cause the following:

  • Parents may find it challenging in order to make a decision together with respect to a child’s care;
  • Parents may need assistance with discussing modifications to an agreement with respect to a child’s care having due regard to a child’s ongoing needs and age, after final agreement has been reached;
  • Parents may struggle with communicating with each other for a range of issues, including any hostility, etc; or
  • Parents may find it difficult to implement or follow the terms of a Court order or parenting plan with respect to a child’s care arrangement.

Parenting coordination is not appropriate for situations where it is likely that the process may threaten a child’s and/or parent’s safety. 

Still not sure what is right for your situation? Get in touch with a family lawyer today

Daykin Family Law can provide expert advice on your options and the best course of action with respect to any issues that you may face whilst co-parenting with your former partner. Whilst an agreement may have been reached, engaging a family lawyer or seeking advice does not technically mean further litigation. Each scenario is unique, and we can assist you throughout this journey.

The Family Law Act 1975 governs the division of superannuation in Australia during a divorce or separation. Under this law, superannuation is treated as a type of property, and its division is managed within the same framework used for other assets, like real estate or bank accounts. This means that, in the event of a marriage or de facto relationship breakdown, superannuation can be included in the property settlement process. 

The Family Law Act allows for superannuation to be divided through a “superannuation splitting order,” making it possible to transfer a portion of one spouse’s superannuation to the other as part of an equitable property settlement. Dividing superannuation fairly ensures that both parties have financial security and stability moving forward.

Impact on Retirement

Splitting superannuation during a divorce can affect each party’s retirement plans. A reduction in superannuation savings may mean that both individuals need to reassess their retirement goals and financial stability in the long term. For some, dividing super may necessitate building additional retirement savings, adjusting financial plans, or considering other investment options.

Is Super Split 50/50 in a Divorce?

One of the most common misconceptions about superannuation in divorce is that it’s automatically split 50/50 between both parties. Superannuation does not have a default equal division. Each case is assessed individually, and the outcome depends on a range of factors, rather than a simple split down the middle. The last step in the property settlement process is justice and equity.  This may lead to a split other than 50/50, depending on the circumstances of each separated couple.

Factors Considered in Division

When determining how superannuation will be divided, the court considers various aspects. These can include the duration of the marriage, financial contributions each party made to the marriage, and any non-financial contributions, parenting and homemaking. Additional factors include the future needs such as age, health, and future earning capacity of each party, primary care of children under 18 years, as well as their relevant individual needs moving forward. The goal is to ensure that a just and equitable outcome, taking into account the entirety of their circumstances, rather than strictly following a formulaic split.

Super Division Example Scenarios

Scenario 1: Sarah and Tom were married for 25 years. Throughout their marriage, Sarah stayed home to raise their children, while Tom was the primary breadwinner and contributed significantly to his superannuation. Given Sarah’s limited superannuation balance and her reduced earning capacity due to years outside the workforce, the court may award her a share of Tom’s superannuation to balance her future financial security.

Scenario 2: Emma and Jack were married for three years, with both contributing equally to their super funds and each having an equal amount of super. They have no children, and both have similar incomes and future earning potential. In this situation, Emma and Jack may retain the entirety of their respective superannuation balances as part of settlement which may be part of achieving a just and equitable outcome.

Scenario 3: Claire and Matt were married for 10 years. Matt accumulated most of his superannuation before the marriage, while Claire’s superannuation contributions primarily occurred during the relationship. The court may consider a division that acknowledges Matt’s pre-marriage contributions and in effect focuses only on superannuation accumulated during their time together.

Legal Framework

Superannuation Splitting Order

A superannuation splitting order is a court order that directs the division of a portion of the superannuation balance held by a superannuation fund from one spouse to the other. Either spouse can apply for this order, and it forms part of the overall property settlement process.  The split goes from “super to super”, not from “super to cash” unless superannuation release requirements are met for example.

To obtain a superannuation splitting order, the value of the superannuation fund must be assessed, which often requires information from the superannuation fund itself. Once a value is determined, the court can issue an order specifying the amount or percentage of superannuation to be transferred to the other spouse’s superannuation fund. It’s worth noting again that the superannuation remains in the fund until retirement age or until eligible release, as it cannot be accessed immediately.

Consent Orders

In some cases, couples are able to reach an agreement on how to split their superannuation without requiring lengthy court proceedings. If both parties agree on the terms of the superannuation division, they can apply for consent orders, which are legally binding agreements approved by the court. 

Consent orders allow couples to avoid the formal court process, offering a more straightforward and less costly approach. To apply for consent orders, couples must submit their agreement to the court for review, along with evidence that the agreement is fair and equitable. Once approved, the consent orders become legally enforceable, and the superannuation fund is directed to split the super as agreed.

Another option to record an agreement which includes superannuation splitting is to record it in a Binding Financial Agreement.  Both parties need independent legal advice and there are strict legal requirements that must be met for such agreements.

Steps to Take When Dividing Superannuation

Valuing Superannuation

The valuation process can vary depending on the type of superannuation fund, such as accumulation funds, defined benefit schemes, or self-managed super funds. Each type of fund has different rules and methods for determining its value. For example, accumulation funds are typically valued based on their current balance, whereas defined benefit schemes may require actuarial assessments due to their complexity. Engaging the superannuation fund to obtain a valuation can help both parties understand the true worth of this asset, forming a strong foundation for equitable negotiations or court orders.

Seeking Financial Advice

Dividing superannuation can have long-term financial impacts. Consulting with financial advisors or superannuation specialists can provide valuable insights into these implications, helping each party make informed decisions. A specialist can advise on tax consequences, potential impacts on retirement plans, and ways to adjust financial strategies post-division. 

Legal Representation

Involving a family lawyer is important when dividing superannuation, especially if complex issues or disputes arise. A family lawyer experienced in superannuation matters can guide you through the legal requirements, ensuring compliance with the The Family Law Act 1975  and protecting your interests. Lawyers play a key role in drafting and/or filing necessary documents, obtaining consent orders or drafting a Binding Financial Agreement as an example, or applying for superannuation splitting orders. 

How Daykin Family Law Can Help

With years of experience in family law, Daykin Family Law is here to guide you through the process with clarity and compassion, ensuring you feel supported and informed every step of the way. We take the time to explain your options and work with you to find the best solution for your unique situation. If you’re looking for advice on superannuation division, reach out to our team today.

We are often asked about the process of child custody mediation by our clients. With years of experience as family lawyers, we understand that going through a divorce is tough – for you, your ex-partner, the children, and the wider family. When emotions are high and the future is uncertain, there can be a significant amount of conflict that arises in the decision-making process, leading one or both partners to find themselves unable to compromise or reach a decision in the best interests of the children.

In Australia, as discussed in our recent child custody blog, the Family Law Act 1975 (Cth) emphasises that first and foremost, couples should not use the Courts where possible and instead engage in child custody mediation before escalating to the Court. Even where a parenting order application is made through the Court, the applicant will most likely be obliged to demonstrate that they have attempted to resolve their differences before having the Court intervene.

Custody is no longer a term used by the Family Law Courts, opting instead for terms associated with what time a child spends with each parent and what communications they will have. If it is safe, both parents are encouraged to play an active role in their children’s lives for the benefit of their wellbeing.  However, it can be difficult to come to an agreed decision on issues such as health, living arrangements, finances, and education.

When parents can’t agree during child custody discussions, that’s where a mediator comes in. A family lawyer can organise for an experienced Family Dispute Resolution Practitioner to facilitate discussions between both parties in an impartial, calm manner. The goal of mediation in custody cases is to come to an agreement approved by both sides that can be turned into either a Parenting Plan or approved by the Courts in a formal Consent Order if required.

Mediators are not there to make judgments or take sides. They are engaged to essentially chair a meeting between both parties and facilitate proactive discussion in a safe, controlled environment that allows a resolution to be reached that is in their children’s best interests.

How do I go about getting a mediator?

There are several options for child custody mediation. The most cost-effective is the use of the Family Relationship Centres, Family Relationships Australia, or other public and community-based services. These services can assist parents in discussing the issues and potentially writing up a new Parenting Plan. Legal representatives are not permitted in this process, however.

Private child mediation services also exist, usually at a higher cost. Your family lawyer can attend and represent you throughout the mediation. This can be helpful to receive advice on the spot regarding the law relating to your particular matter, your rights, and the impact of any proposals. A solicitor can then draft the agreement terms on the day if it is appropriate, usually to be formalised soon after.

Going to court is usually avoided and when undertaken is usually expensive. Friendly mediation allows you to come to an acceptable resolution swiftly and cost-effectively.

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When isn’t mediation appropriate?

Sometimes, mediation isn’t an appropriate course of action, particularly in circumstances involving family violence. In such cases, the support of a lawyer can assist in effectively dealing with challenging cases to ensure your interests are protected. If there are allegations of abuse, your lawyer can advise whether the case should proceed in Court instead of with a mediator.

Should I seek legal advice before going into child custody mediation?

The most effective mediation happens when both parties have sought legal advice about their circumstance beforehand. You are much more likely to be prepared, to understand the probable outcomes, your options, and how a Court might deal with your matter. By figuring this out in advance, and understanding your legal position, both parties are more likely to be more informed and will have considered in advance of negotiations what they are or aren’t willing to compromise on.

Your lawyer can come to mediation sessions and advise you as the session progresses. Sometimes mediation can become heated or tense when sensitive and important issues are addressed and having your lawyer with you ensures you have your say and your interests and those of your children are prioritised throughout.

How to approach mediation

Preparation is key to effective mediation.  With the support of your lawyer, you can approach mediation with more of an open mind, ready to listen and to develop a mutually satisfactory agreement.  Remember to keep your children and their best interests in mind and be aware of the impact of conflict on them.  Importantly, it’s best to approach mediation as a place to solve parenting problems rather than bring up any other marital issues.

Mediation in custody cases isn’t always smooth sailing, but by remembering that you are there to find a solution for your children and listening to the advice of your lawyer and the guidance of the mediator, you are much more likely to reach a settlement that works for both of you.

What can be resolved in mediation?

The most common topics that are discussed and resolved in child custody mediation are things like living arrangements or relocation, child support, health issues, education, religion, how time will be split between parents and how school holidays will be spent, overseas travel, and the division of payments for things like after-school activities.

What is the process of mediation?

When a mediator is appointed, each parent is normally invited to a pre-mediation meeting separately to establish whether the case is suitable for child custody mediation.  If you have appointed a lawyer, they will advise you whether this is the case and what available options there are.

Both parties can then be asked to prepare a short statement to bring to the initial session, outlining what they hope to achieve from mediation.

Each mediation session can run for a shorter period, such as around three hours, or even a full day.  In some cases, it can take several sessions to resolve some of the more significant issues.  This is expedited if both parties come prepared and willing to compromise.

If no agreement can be reached in mediation, then a certificate will be issued by the mediator.  Either parent can then file for parenting proceedings in the Court.  Such a certificate will also be issued if a genuine effort isn’t made by one parent to resolve the dispute, if a parent fails to attend, or for another relevant reason.

I am considering child custody mediation, what should my next steps be?

Where possible, it would be prudent to speak to a family lawyer who can help you understand your options before appointing a mediator. Daykin Family Law is expertly skilled in children’s and parenting matters including child custody mediation, and works closely with psychologists, social workers, and mediators to help you and your family stay out of Court wherever possible.  We can recommend a suitable mediator for your matter and assist in inviting the other parent to mediation.

At Daykin Family Law, we place a high importance on assisting clients to reduce conflict and maintain respect in the co-parenting relationship after separation as much as possible.  Shannon Daykin is an experienced Family and Divorce Lawyer.  An Accredited Family Law Specialist, Shannon was recently named a Leading Family & Divorce Lawyer (Recommended, Brisbane) and a Leading Parenting & Children’s Matters Lawyer (Recommended, Queensland) in the prestigious Doyle’s Guide 2018 and 2019.  In 2019, Daykin Family Law was named in the Doyle’s Guide as a Leading Family & Divorce Law Firm (Recommended).

We give you expert legal advice on the most appropriate and cost-effective course of action for you and your family.  Contact us at (07) 3338 5645 to make an appointment for a fixed fee initial consultation today.

Co-parenting can refer to the shared responsibility of raising a child by both parents, even after separation or divorce. In the context of family law, co-parenting ensures that both parents continue to play an active role in their child’s life, despite the breakdown of their relationship. It prioritises the child’s best interests, ensuring that they receive care, guidance, and support from both parents.

An Example of Healthy Co-Parenting

Two parents, Sarah and Mark, who have recently separated but share care of their 8-year-old son, Liam. They both agree on a parenting plan that allows Liam to spend weekdays with Sarah, as she lives closer to his school, and weekends with Mark.  Both parents treat each other with respect and courtesy.

To ensure consistency, Sarah and Mark communicate regularly about Liam’s schoolwork, discipline issues, extra-curricular activities, and any health concerns. Even though they live in separate homes, they make decisions together about Liam’s education and healthcare as some examples, ensuring he has a stable and supportive environment. Both parents attend Liam’s school events and share the responsibility of transportation, without involving him in any disagreements they might have.

This approach allows Liam to benefit from the care and involvement of both parents while maintaining a sense of routine and security.  

Legal Considerations when it comes to Co-Parenting

In Australia, co-parenting comes with significant legal responsibilities. Under the Family Law Act 1975, if a parenting order is in place providing for joint decision-making about major long-term issues, then both parents must make certain important decisions about their child’s upbringing together. These decisions can include matters like education, healthcare, and religious upbringing. However, joint decision-making about major long-term issues does not necessarily mean equal time spent with the child, as this is determined by what is in the best interests of the child.

It can be useful for parents to formalise parenting arrangements, either through a Parenting Plan or applying for a Parenting Order, to avoid misunderstandings and ensure that everyone involved knows their responsibilities.

  •  A Parenting Plan is a written agreement between the parents, which can be flexible but is not legally enforceable. 
  • A Parenting Order by consent is made by the court with the agreement of both parents and is legally binding and enforceable. 

For families facing disputes or complex situations, seeking legal advice can be helpful. Daykin Family Law offers expert guidance to help parents reach fair, legally sound parenting arrangements that take into account the best interest of the child. With a focus on minimising conflict and prioritising the child’s well-being, Daykin Family Law ensures that families can navigate co-parenting with clarity and support.

Co-Parenting and Child Support

Financial responsibility is a crucial aspect of co-parenting, and both parents are expected to contribute to the costs of raising their child, even after separation. Child support is designed to help cover essential expenses such as schooling, healthcare, and daily living costs. The amount each parent contributes typically depends on factors such as income, the number of children, and the time spent with each parent.

It’s important to ensure that child support arrangements are appropriate and meet the child’s needs. For more details on how child support is calculated and what obligations co-parents may have, you can read our blog on How Much is Child Support in Australia?. Understanding these financial responsibilities helps create a stable environment for the child, ensuring their well-being is always prioritised.

Parents can also enter into private agreements regarding child support. Read more about this option.

Tools and Tips for Successful Co-Parenting

Maintain Open Communication

Clear, respectful, and regular communication is key to ensuring both parents stay informed about their child’s needs and activities. Use email, messaging apps, or scheduled calls to keep conversations focused and constructive.

Use Co-Parenting Apps

Several apps are designed to help manage co-parenting logistics, such as shared calendars, expense tracking, and communication. Apps like OurFamilyWizard and 2Houses can assist in organising schedules and keeping everything documented for smooth communication and understanding.

Create a Consistent Routine

Consistency is important for children, especially after a separation. Creating a structured routine for your child that is upheld in both households can lead to co-parenting success. This includes meal times, bedtimes, and school activities. Consistency reduces stress for the child and helps them adjust to the new family dynamics.

Set Boundaries

While co-parenting requires communication, it’s essential to set clear boundaries about each other’s personal lives. Respecting these boundaries ensures a more harmonious co-parenting relationship, allowing both parents to focus on their child’s needs.

Seek Mediation When Necessary

Disagreements are bound to happen, but when they become difficult to resolve, consider seeking mediation. Family mediation provides a neutral space where parents can address conflicts and come to mutually beneficial agreements.

For more insight on how to go about successful co parenting see our article on Co-Parenting Essentials: Effective Strategies That Work.

When You Should Seek Legal Advice When Co-Parenting

While co-parenting can often be managed amicably, there are certain situations where seeking legal advice is necessary to ensure the best outcome for both parents and children.

Disagreements on Parenting Arrangements

If parents are unable to agree on where the child will live, how much time they will spend with each parent, or other key issues, legal advice can help resolve disputes. A family lawyer can guide you through dispute resolution processes such as mediation, or assist in drafting a Parenting Plan or applying for a Parenting Order.

Concerns About Child Safety

If there are concerns about your child’s safety due to family violence, neglect, or abuse, it’s crucial to urgently seek legal help immediately. Family lawyers can assist in applying for court orders to ensure the child’s protection, including urgent applications if needed.

Changes in Circumstances

If there has been a significant change in circumstances – such as relocation, changes in employment, or health concerns, that affects existing parenting arrangements, seeking legal advice can help you navigate the necessary adjustments or amendments that may need to be proposed or applied for in relation to court orders.

Breach of Parenting Orders

If the other parent is not following the agreed Parenting Plan or court-ordered arrangements, legal action can be necessary. A lawyer can help with enforcement of the existing orders, negotiate new terms, or take necessary legal action to ensure compliance in some circumstances.

Relocation or Travel Disputes

If one parent wishes to relocate or take the child overseas, and the other parent does not agree, legal advice should be sought. This ensures that any moves comply with family law.

Daykin Family Law

Seeking legal advice ensures that your parental rights are protected and that the arrangements you make are in the best interests of your child. At Daykin Family Law, our experienced family lawyers are here to provide guidance and support throughout the co-parenting process, helping you reach legally sound solutions that work for everyone involved. Get in touch with ShannonDaykin and her team today!

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In this article, we look at how long divorce takes in Australia. 

Divorce can be a complicated process to navigate as it requires extensive legal procedures and paperwork. While the standard divorce process in Australia usually takes a few months to be finalised after submitting an application, the total duration of divorce proceedings and everything that they entail can vary significantly as many factors come into play.

Let’s take a closer look at the factors that influence how long a divorce takes. 

Factors That Influence the Duration of a Divorce

The legal framework in Australia provides certain guidelines and timelines for divorce, but individual cases can vary widely in their duration. The average divorce takes around 3-4 years from separation to a finalised settlement

It’s also important to note the distinction above between the divorce itself, which is simply the legal severance of the marriage, and everything else that it entails such as devising property settlement, calculating child support, determining spousal maintenance etc. While the actual time between filing for divorce and having a divorce order issued by the court usually only takes several months, the rest of the proceedings may take much longer.

Divorce is usually granted in two steps: 

Step 1: Court order

If all the requirements are met and the court is convinced that adequate provisions have been set for any children involved in the relationship, a court order will be issued. However, it’s crucial to recognise that a period of time must usually pass before the order takes effect.

Step 2: Finalising the Divorce

Following the issuing of the initial court order, there is a standard waiting period. The divorce order generally becomes absolute 1 month and 1 day after the order is made, marking this date as the official divorce date. However, there are circumstances where the court might have compelling reasons to delay the granting of the divorce beyond this timeframe.

Common Delays in the Divorce Process

  • Disputes Over Child Custody or Property: If the parties cannot agree on these matters, the court may need to step in, which can extend the process by several months or even years.
  • Non-Response to Divorce Papers: If one party fails to respond to the divorce application, the process can also be delayed. The court may require additional hearings or documentation before proceeding.
  • Unable to Serve Papers: If you struggle to serve your spouse with sealed copies of the divorce application, this will also delay the process. This is only relevant if you make a sole application for divorce.
  • Missing or Incorrect Documentation: Filing incomplete or incorrect paperwork can lead to delays as the court will not process the application until all required documents are submitted.
  • If the other party objects: This can significantly delay the process by requiring additional hearings or evidence to address the disputes.

Now let’s look at the full timeline and process of separation, divorce proceedings, and all other relevant factors to get a more comprehensive picture of the duration between the initial separation, the finalised divorce, and property settlement.

The Process and Timeline of Separation and Divorce Proceedings in Australia

While each situation may have unique circumstances, there are general procedures in place that influence how long divorce takes in Australia to ensure fairness and due diligence.

  • Initial application: Once you’ve decided to legally end your marriage, the first step is to file an application for divorce. This can be a sole application (filed by one party) or a joint application (filed together by both parties).  A sole application will need to be served on the other party in a specific way and a further document will need to be filed.
  • Mandatory waiting period: In Australia, there’s a mandatory 12-month separation period before the court considers your divorce application. This means that from the time you and your partner decide to separate, you must wait at least 12 months before you can file for divorce. 
  • Response and possible mediation: Once the application has been filed and served (in case of a sole application), the other party has 28 days (if they’re in Australia) or 42 days (if they’re overseas) to respond. If disagreements arise — for instance, disputes over the date of separation or arrangements for children — mediation may be suggested. Mediation can extend the duration of the divorce process, as it involves meetings, discussions, and potentially multiple sessions to arrive at mutual agreements.
  • Final hearing and judgement: After all the above stages are completed, the divorce will progress to a final hearing. In many cases, especially for joint applications, you may not need to attend court. The judicial officer will review the evidence, ensure all criteria are met and, if everything is in order, grant the divorce. Once the divorce is granted, there is a further wait of one month and one day before the divorce becomes final, as outlined above. 

While the procedure might seem straightforward and sequential, each step can carry emotional, logistical, and legal significance. And though the timelines may vary depending on individual circumstances, understanding the general outline ensures you’re better prepared for the journey. 

How Long Does Property Settlement Take?

Beyond the emotional turbulence of a divorce, the practical implications concerning assets, property, and finances are often significant. Property settlement is an essential aspect of many divorces, ensuring that both parties can move forward with clarity and security regarding their financial futures.

A divorce property settlement refers to the process through which assets, debts, and finances are divided between both parties after separation. This isn’t just about tangible assets like a home or bank accounts; it can also encompass superannuation, investments, and other financial interests.

Find out more about property settlement after divorce.

Much like the divorce process itself, the duration of property settlement can be influenced by several factors:

  • Complexity of assets: If the couple has multiple assets, overseas investments, or complex financial portfolios, or a business for example, valuations (and the engagement of experts) and extensive disclosure may be needed. This can cause delay in some matters.
  • Level of agreement: A mutual agreement on the division of assets can make the process swifter. If both parties agree on who gets what, it’s likely to be faster than situations where disputes arise and mediation or legal intervention becomes necessary.
  • Legal processes: Ongoing negotiations can draw matters out and cause delay, as can instituting court proceedings.  Mediation can often be an effective way to reach agreement sooner.

It’s worth noting that while the divorce might be finalised, property settlement can take place either before or after the divorce order has been made. However, it’s crucial to be aware that once a divorce order takes effect, a 12 month time limit commences for parties to file in the Court for property settlement and/or spousal maintenance, or leave may need to be sought to file out of time.  For separated de facto couples, this time limit is 2 years from the date of separation.  Such leave applications can be expensive and success is not guaranteed. Find out more about how assets are divided in a divorce

Our Divorce Lawyers Can Help You Through This Process

For more information on how long divorce takes in Australia, reach out to Daykin Family Law today.

Whether you are separating from your de facto partner or spouse, there are often many decisions to make, from the division of finances and property settlement to arrangements for child support and divorce. Our divorce lawyers are here to help you every step of the way. Shannon Daykin is an Accredited Family Law Specialist with extensive experience in all aspects of family law. Contact Daykin Family Law today to arrange a reduced fixed fee initial consultation.

Separation and divorce bring many challenges, especially when there are children involved. In fact, one of the most common questions our clients ask us is: how much is child support in Australia?

Thankfully, the Australian child support system is designed to facilitate appropriate contributions from both parents towards their children’s everyday expenses. Set formulas are used to determine how much child support a person will pay, based on several key variables, which we will outline for you. And with the median marriage lasting 9 years until separation and 13 years until a finalised divorce, know that you are not alone. 

Daykin Family Law provide personalised advice that aligns with the highest standards of Australian family law. If our article doesn’t answer the questions you have, don’t hesitate to reach out to us so we can assist you. Let us help you secure a stable financial future for your children.

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What is Child Support?

Child support is a financial obligation paid by one parent to the other, aimed at contributing to the everyday living expenses of their children following separation or divorce. Its core purpose is to ensure that children maintain a standard of living that closely resembles what they might have enjoyed had their family remained intact. This system underscores the principle that both parents bear equal responsibility for their children’s expenses and financial security and generally leads to more positive outcomes for children who are in this situation through no fault of their own.

In Australia, child support is predominantly governed by the Child Support (Assessment) Act 1989, alongside the Family Law Act 1975 (Cth) in some cases. These pieces of legislation establish the rules for assessing, collecting, and transferring child support payments, ensuring that the process is transparent, and considers the financial capacity of each parent. The Department of Human Services (DHS), through its Child Support Program, administers these laws, providing a structured approach to help parents manage their child support arrangements efficiently and equitably.

How Is Child Support Calculated?

To determine the child support amount, the DHS uses a child support assessment formula that examines the situation of both parents. There are six different formulas used to calculate the child support amount, which can be difficult to understand – but that’s OK, we’re here to help! 

In most cases, the annual amount of child support will be calculated using Formula 1, the Basic Child Support Formula. This formula is used for single child support assessments where only the parents provide care for the children and neither parent has another child support assessment case.

How to Calculate Your Child Support

Let’s look at the steps to calculate child support. After outlining the initial steps, we go through an example with Bob and Mary and their child support costs for their 9-year-old daughter – jump to this if you want a more concrete explanation! If we use the Basic Child Support Formula as provided by the Australian Government’s Guides to Policy, child support is calculated as follows:

1. Identify the child support income for each parent

Start by determining the child support income for each parent. You calculate this by looking at a parent’s taxable income and subtracting the amount each parent would need to support themselves individually.

2. Calculate the combined child support incomes for a total child support income

Add both parent’s child support incomes together for a total.

3. Calculate each parent’s income percentage

Divide each parent’s child support income by the total child support income to get their income percentage.

4. Determine each parent’s percentage of care

This is the amount of time each parent spends caring for the child which influences the support calculation, with more significant care responsibilities potentially reducing the financial obligation.

  • Below regular care: 0% to 13% of the time is equal to 0 to 51 nights a year or 0 to less than 2 nights fortnightly.
  • Regular care: 14% to 34% of the time is equal to 52 to 127 nights a year or 2 to 4 nights a fortnight.
  • Shared care: 35% to 64% of the time is equal to 128 to 237 nights a year or 5 to 9 nights a fortnight.
  • Primary care: 65% to 86% of the time is equal to 238 to 313 nights a year or 10 to 12 nights a fortnight.
  • More than primary care: 87% to 100% of the time is equal to more than 313 nights a year.

5. Determine the cost percentage

Based on the care percentage, use the chart to identify the extent to which each parent contributes to the child’s costs through direct care.

Care percentageEqual to number of nights a yearEqual to number of nights a fortnightCare levelCost percentage
0-13%0-511Less than regular care0%
14-34%52-1272-4Regular care24%
35-47%128-1755-6Shared care25% plus 2% for every percentage point over 35% of care
48-52%176-1897Shared care50%
53-65%190-2378-9Shared care51% plus 2% for every percentage point over 53% of care
66-86%238-31310-12Primary care76%
87-100%314-36513-14More than primary care100%

6. Calculate each parent’s child support percentage

This step involves subtracting the cost percentage from the income percentage for each parent,  to calculate the child support percentage. This determines who pays and who receives child support.

If the child support percentage is negative, this parent will receive child support.

If the child support percentage is positive, this parent will pay child support.

There may be different arrangements for different children, therefore there may be different support percentages for each child.

*Steps 7 and 8 use only the positive child support percentage.

7. Work out the cost of each child

Work out the cost of each child based on the parents’ total combined child support income and by using the charts below:

Children aged 12 and under

Parents combined child support incomeCost of 1 childCost of 2 childrenCost of 3 or more children
$0 to $42,69517c for each $124c for each $127c for each $1
$42,696 to $85,389$7,258 plus 15c for each $1 over $42,695$10,247 plus 23c for each $1 over $42,695$11,528 plus 26c for each $1 over $42,695
$85,390 to $128,084$13,662 plus 12c for each $1 over $85,389$20,067 plus 20c for each $1 over $85,389$22,628 plus 25c for each $1 over $85,389
$128,085 to $170,778$18,785 plus 10c for each $1 over $128,084$28,606 plus 18c for each $1 over $128,084$33,302 plus 24c for each $1 over $128,084
$170,779 to $213,473$23,054 plus 7c for each $1 over $170,778$36,291 plus 10c for each $1 over $170,778$43,549 plus 18c for each $1 over $170,778

Income over $213,473

Costs don’t go up past this cap

$26,043$40,561$51,234

Children aged 13 or older

Combined child support income for one yearCost of 1 childCost of 2 childrenCost of 3 or more children
$0 to $42,69523c for each $129c for each $132c for each $1
$42,696 to $85,389$9,820 plus 22c for each $1 over $42,695$12,382 plus 28c for each $1 over $42,695$13,662 plus 31c for each $1 over $42,695
$85,390 to $128,084$19,213 plus 12c for each $1 over $85,389$24,336 plus 25c for each $1 over $85,389$26,897 plus 30c for each $1 over $85,389
$128,085 to $170,778$24,336 plus 10c for each $1 over $128,084$35,010 plus 20c for each $1 over $128,084$39,706 plus 29c for each $1 over $128,084
$170,779 to $213,473$28,605 plus 9c for each $1 over $170,778$43,549 plus 13c for each $1 over $170,778$52,087 plus 20c for each $1 over $170,778

Income over $213,473

Costs don’t go up past this cap

$32,448$49,099$60,626

Children of mixed ages

Combined Child Support income for one yearCost of 2 childrenCost of 3 or more children
$0 to $42,69526.5c for each $129.5c for each $1
$42,696 to $85,389$11,314 plus 25.5c for each $1 over $42,695$12,595 plus 28.5c for each $1 over $42,695
$85,390 to $128,084$22,201 plus 22.5c for each $1 over $85,389$24,763 plus 27.5c for each $1 over $85,389
$128,085 to $170,778$31,807 plus 19c for each $1 over $128,084$36,504 plus 26.5c for each $1 over $128,084
$170,779 to $213,473$39,919 plus 11.5c for each $1 over $170,778$47,818 plus 19c for each $1 over $170,778

Income over $213,473

Costs don’t go up past this cap

$44,829$55,930

8. Calculate child support amount

Multiply the positive child support percentage by the cost of the child to determine the annual rate of child support that will be paid.

These steps are designed to ensure that child support payments are equitable and reflect the financial capabilities of each parent, the needs of the child, and the practicalities of the care arrangements.

Example

Now, let’s look at an example. 

Bob and Mary are calculating their child support payments. Bob makes $98,463 per year, and Mary makes $58,463. Now let’s go through the formula step by step. 

1. Identify the child support income for each parent.

The self-support amount is defined as taxable income – one third of the MTAWE (Male Total Average Weekly Earnings). The self-support amount will be the same for both parents. In 2024, the MTAWE is $85,389, meaning the self-support amount is $85,389/3=$28,463. You can find out the MTAWE and self-support amount for a given year here

 

Bob

Mary

Taxable Income

$98,463

$58,463

Self-support amount

$28,463

$28,463

Child support income (taxable income – self-support amount)

$98,463 – $28,463 

=$70,000

$58,463 – $28,463 

=$30,000

So Bob’s child support income is $70,000 and Mary’s is $30,000

2. Calculate the combined child support incomes for a total child support income

This is very simple, we simply add each of their child support incomes. 

$70,000 + $30,000 = $100,000

3. Calculate each parent’s income percentage

For this, we divide each parent’s child support income by the combined child support incomes.

So, for Bob this would be: 

$70,000 / 100,000 x 100 = 70% 

And for Mary it would be: 

$30,000 / 100,000 x 100 = 30%

4. Determine each parent’s percentage of care

Bob takes care of the child for 3 nights every fortnight, with Mary taking charge for the other 11. This means Bob is a regular carer and Mary is a primary carer. 

5. Determine the cost percentage.

Using the table above, we can see that Bob’s cost percentage is 24% and Mary’s is 76%. 

6. Calculate each parent’s child support percentage

So for this we subtract the cost percentage from the income percentage. 

Bob: 70% – 24% = 46%

Mary: 30% – 76%= -46%

As Mary’s child support percentage is negative, she will be the one receiving child support. 

7. Work out the cost of each child

Bob and Mary only have one child, who is 9 years old. As their combined child support income is $100,000, they sit in the $85,390 to $128,084 bracket, as seen in the relevant table above. This means the cost of their child is calculated as $13,662 plus 12c for each $1 their combined child support income is over $85,389

So, we’d calculate as follows:

$100,000 – $85,389 = $14,611 

$14,611 x $0.12 = $1,753.32

$13,662 + $1753.32 = $15,415 (rounded to the nearest dollar)

This means that the cost of Bob and Mary’s child is $15,415 per year. 

8. Calculate child support amount

We’re almost there! Now we just need to multiply the cost of the child by Bob’s child support percentage as he’ll be the one paying. 

So this is $15,415 x 46% = $7,091 (rounded to the nearest dollar). This means Bob has to pay $7,091 in child support to Mary each year, which works out to roughly $136 per week. 

For the most current information on minimum and maximum child support payments, including any conditions that might apply, parents should refer directly to Services Australia. This resource provides up-to-date guidelines and tools to help parents understand their obligations and entitlements within Australia’s child support framework. The above is some general information only and is subject to change.

Looking to Understand Child Support Better?

Daykin Family Law offers specialised guidance to parents seeking to establish, adjust, or understand child support agreements. Our team of child support lawyers is dedicated to ensuring that your child support arrangements are appropriate, compliant, and structured with the best interests of your child at heart. For personalised advice that aligns with the highest standards of Australian family law, contact Daykin Family Law today. Let us help you secure a stable financial future for your children.

Services Australia Child Support Number

For questions about child support, the Services Australia Child Support Enquiry Line is available to assist. By calling 131 272, parents can access support for a range of matters, including:

  • Applying for child support
  • Registering for child support collection
  • Understanding child support calculations
  • Resolving issues related to child support payments

This helpline is a valuable resource for navigating the child support system and ensuring that obligations are met fairly and efficiently.

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What happens when your ex-husband is delaying the property settlement? Or your ex-wife? We look to address this frustrating issue and provide practical advice on how to move forward. Understanding your rights and the legal options available can help you navigate this challenging situation.

Understanding Property Settlement

Property settlement refers to the division of assets and liabilities between parties following a separation or divorce. This process ensures both parties receive a just and equitable share of property (assets, liabilities, super, financial resources). In Australia, property settlement is governed by the Family Law Act 1975, which provides a legal framework for resolving these disputes.

The goal is to reach an agreement that considers each party’s financial and non-financial contributions, as well as their future needs. This includes the value of properties, savings, investments, and any debts incurred. Achieving a just and equitable property settlement can help both parties move on and rebuild their lives post-separation.

If you are currently facing the end of a relationship and need assistance with property settlement, contact Daykin Family Law for expert guidance and support.

Legal Obligations and Timeframes

Timeframes for Property Settlement

For married couples, property settlement applications must be filed in the court within 12 months of the divorce being finalised.

For de facto relationships, the timeframe is two years from the date of separation

For applications out of time, the court’s leave must be sought.

Legal Obligations

Both parties are legally obligated to provide full and frank disclosure of financial information. This includes details of assets, liabilities, income, and any other relevant financial resources, as some examples. 

Court Involvement

If an agreement cannot be reached through negotiation or mediation, it may be necessary to involve the court. The court will consider various factors to determine a just and equitable settlement, including the contributions of each party and their future needs.

Steps to Take

  • Seek Legal Advice: Consult with an expert family lawyer to understand your rights and obligations.
  • Gather Documentation: Prepare all necessary financial documents to facilitate the process.
  • Consider Mediation: Attempt to resolve disputes through mediation before resorting to court.
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Common Reasons for Delaying Property Settlement

Financial Gain: An ex-husband, ex-wife or partner might delay property settlement to gain a financial advantage. For example, they might hope to negotiate a more favourable outcome or benefit from changes in market conditions.

Emotional Reasons: Emotions can play a significant role in delays. An ex-husband or wife may find it difficult to let go or may use the delay as a means of maintaining control or prolonging the connection.

Lack of Co-operation: Sometimes, delays occur simply because one party is uncooperative or unwilling to engage in the settlement process. This can sometimes stem from a lack of understanding, unwillingness to compromise, or a desire to complicate the process for the other party.

Disputes Over Valuation: If both parties cannot agree on the value of shared assets, the settlement process can become prolonged as valuations are reassessed and negotiated.

Legal and Procedural Delays: Legal complexities and procedural requirements can also contribute to delays. This might include incomplete documentation, waiting for court dates, or navigating mediation processes.

Steps to Encourage Co-operation

Open Communication: Clearly communicating honestly and openly your concerns and the impact of the delay may encourage your ex to engage in the process.

Mutual Benefits: Highlighting the benefits of finalising the settlement such as, financial independence, closure, and the ability to reinvest assets for both parties can also encourage co-operation.

Mediation: This involves a neutral third party who helps facilitate discussions and negotiations. It provides a structured environment to address concerns and reach mutually agreeable solutions. Mediation can often help in resolving disputes outside of court.

Legal Counsel: Lawyers can help guide you through the process and also communicate on your behalf, reducing direct confrontation and ensuring that legal procedures are followed.

Formal Requests: If informal attempts to resolve the delay are unsuccessful, a formal request to progress towards final settlement through your lawyer may be necessary.

Court Intervention As a last resort, applying to the Federal Circuit and Family Court for orders to essentially force property settlement is sometimes necessary.

How to Progress a Property Settlement

When your ex-partner is delaying property settlement, and all efforts to encourage co-operation have failed, it may be time to consider legal action.

  1. Consult with an Expert Family Lawyer

An expert family lawyer will guide you through the process, explain your rights, and help you understand your options. Having legal support ensures you take the correct steps from the start.

  1. File an Application with the Federal Circuit and Family Court of Australia

If delays persist, your lawyer can help you file an application with the Federal Circuit and Family Court of Australia. This application essentially asks the court to step in and make binding decisions about the division of assets. You’ll need to provide documents such as a financial statement and an affidavit outlining your case.

  1. Engage in Mediation or Conciliation

Often, the court will order both parties to attend mediation or conciliation sessions. These are opportunities to resolve the dispute with the help of a neutral third party. This step is crucial as it is an opportunity to settle without going to a trial, which can save parties financially and emotionally.

  1. Prepare for a Court Hearing

If mediation doesn’t result in an agreement, the matter will proceed to a final court hearing. Here, both parties present their arguments, and the court will decide on a just and equitable division of property. The court considers, among other things, contributions, future needs, and other relevant factors to ensure an equitable outcome.

  1. Enforce the Court’s Decision

Once the court has issued its orders, they are legally binding. If your ex-partner does not comply, further legal action may be necessary. You can apply for enforcement orders to ensure the settlement is carried out as decided by the court.

  1. Keep Detailed Records

Throughout this process, maintain comprehensive records of all communications and actions taken. This documentation can strengthen your case in court and is essential for enforcing any orders made.

The Importance of Legal Advice

Seeking legal advice ensures that your rights are protected, and the process is handled efficiently. At Daykin Family Law, our experienced team is here to guide you every step of the way, offering empathetic and clear advice personalised to your unique situation. Don’t face these challenges alone—reach out to Daykin Family Law for expert support and start moving forward with confidence.

Family law serves as a foundation in safeguarding the interests and rights of families during times of significant transitions. This branch of law deals extensively with issues that affect the core of family life, including marital arrangements, parental responsibilities, and the division of assets. 

Understanding Family Law In Australia

Family law is a critical branch of the legal system that addresses issues directly impacting individuals and families. Its primary aim is to resolve legal matters related to familial relationships, such as divorce, child custody (known as parenting arrangements), and property settlements, and more. This field of law ensures that all parties, especially children, are treated fairly and respectfully during these challenging times.

In Australia, family law governs the processes for legal separation, the dissolution of marriage, and the arrangements for parenting post-separation. It helps in defining the legal obligations and rights of family members towards each other. This framework is designed not just to settle disputes but to support the wellbeing of all family members through legally sound, equitable solutions.

Key Areas of Family Law

Family law encompasses a variety of areas each designed to address specific aspects of family dynamics and needs.

Marriage and Divorce

Regulations surrounding marriage and divorce form a significant part of family law. This includes understanding the legal requirements for entering into a marriage or relationship and the procedures for a lawful separation or divorce

Parenting and “Custody”

At the heart of family law are the children’s interests. Parenting laws detail how decisions about a child’s upbringing are made, focusing on living arrangements and child custody for both parents. This is known as parenting arrangements in Australia.

Financial Arrangements

Family law also covers financial provisions relating to spousal maintenance and child support. These laws ensure that financial responsibilities towards family members are clearly defined and upheld, providing necessary support where needed.

Property Settlements

Upon the breakdown of a relationship, property settlement decides the fair distribution of property and assets. Family law provides a framework for equitably dividing property acquired during the relationship, considering the contributions of each party and future needs.

Domestic Violence

An integral part of family law can be its role in providing protections against domestic violence. The law offers mechanisms to protect individuals and their children from abusive situations through protection orders and other legal interventions. 

The Role of Family Courts in Australia

Family courts play a pivotal role in the administration of family law, handling cases that range from marital disputes to issues concerning children’s welfare.

Family Court Structure

Australia’s family court system is known as the Federal Circuit and Family Court of Australia (Division 1) and the Federal Circuit and Family Court of Australia (Division 2). This Court replaced the former Federal Circuit Court of Australia and Family Court of Australia, established in 2021 to streamline and improve the efficiency of the legal process in family law matters.

Court Processes

The process typically begins with the filing of applications, where individuals seek judicial resolution to their family law disputes. The courts consider various aspects like the welfare of children, the justice and equity of financial settlements, among other matters. 

Decision-Making Criteria

In making parenting decisions, the court primarily focuses on what is in the best interests of the children involved.

Alternative Dispute Resolution in Family Law

In family law, not all disputes need to reach the courtroom. Alternative Dispute Resolution (ADR) methods offer families a less adversarial way to resolve conflicts. 

Mediation

Mediation involves a neutral third party who helps disputing parties discuss their issues and find mutually agreeable solutions. It’s particularly effective in family law for resolving matters concerning parenting plans and property divisions without the emotional and financial cost of court proceedings. Mediation allows families to maintain control over the outcomes, often leading to more sustainable and personalised agreements.

Collaborative Law

Similar to mediation, collaborative law involves both parties working with their respective lawyers and, sometimes, other family professionals to settle disputes out of court. Each party commits to solving the issues respectfully and transparently, aiming to reach a settlement that respects the interests of all involved, especially the children.

Benefits of ADR

Reduced Costs: ADR methods are generally less expensive than going to court due to the lower legal fees and quicker resolutions.

Privacy: ADR provides a private setting where sensitive issues can be discussed confidentially.

Less Stress: By promoting cooperation, ADR tends to be less adversarial, reducing stress and emotional turmoil for both adults and children.

Control Over Outcomes: Parties have more s

How Family Lawyers Can Help

Expert Legal Advice

Family lawyers are specialists in their field, equipped with the knowledge to provide clear, accurate advice personalised to the specifics of your case. They can help interpret the law in the context of your unique circumstances, ensuring you understand all your legal options and the potential outcomes.

Representation in Court

If your case goes to court, having a skilled lawyer to represent you is invaluable. They can present your case effectively, advocate on your behalf, and navigate the court proceedings, which can be complex and intimidating.

Negotiation and Mediation Support

Family lawyers can facilitate these discussions, ensuring that agreements are appropriate, just and equitable. They work to protect your interests while striving for amicable resolutions that serve the best interests of the entire family.

Drafting Legal Documents

From consent orders to parenting plans and financial agreements, family lawyers ensure that all legal documents are drafted accurately and comprehensively. This attention to detail helps prevent future disputes and ensures that agreements are enforceable.

Emotional Support and Guidance

Beyond just legal advice, family lawyers often provide emotional support. They understand the stress and emotional strain that family law matters can impose and strive to handle cases with empathy and respect, making the process less overwhelming.

Preventive Advice

Family lawyers can also offer preventive advice to help you avoid potential legal issues before they arise. This might include advice on pre-nuptial agreements or how to structure your finances during a marriage.

Connect with Daykin Family Law Today

Are you facing family law challenges or need expert advice on your rights and options? Reach out to Daykin Family Law for professional guidance and compassionate support. Our team of experienced family lawyers is here to help you, lead by QLS Accredited Family Law Specialist Shannon Daykin. Call us or book an appointment online and take the first step towards securing a positive resolution for you and your family. 

If you have just separated or are likely to, it is important you get advice about what will happen with custody of the children. In the world of family law in Australia, we refer to this as parenting arrangements – who a child will live, spend time and communicate with, among other things.

Most of the time, parents who have separated can agree on a parenting plan for their children.  For some, the children might live with one parent, and see the other at weekends, holidays and special days. For others, the children may effectively have two homes and spend an equal amount of time with each parent. For many, the arrangements are somewhere between.

Sadly, not all agreements can be made amicably, or there may be extenuating circumstances for which parents choose to litigate in the family court system. Litigating child matters in the courts can be particularly emotionally straining for all parties involved and it should be considered to be a last resort. That being said, it is important to understand the process and implications if you’re considering seeking custody as part of a separation. 

What is child custody?

The term ‘custody’ is no longer used by the family law courts, but still used regularly by others and in the media. In Australia, parenting arrangements fall under the Family Law Act 1975, which covers divorce and separation, property separation, parenting arrangements and maintenance. The terms ‘custody’ and ‘access’ are no longer used and have been replaced with ‘live with’ arrangements and ‘spend time with’ arrangements as preferred terms.

There is no standard care arrangement for a child following separation or divorce, but the starting point is Section 65E of the Family Law Act. This details the basis of who a child will ‘spend time with’ and who a child will ‘live with’.

The law assumes that decision making is shared amongst parents (for example decisions around religion, medical treatments, changes to where a child lives or to their name or decisions around their education), unless in circumstances of a risk of family violence or abuse. However, equal shared parental responsibility does not always mean that there is an automatic right to spend an equal amount of time with the child. This decision can be made by the Courts in the best interests of the child.

Should I go to court for child custody?

In most child custody cases, parenting arrangements can be made without the intervention from the Courts. Most family law experts recommend finding alternative ways to finding a resolution, for example mediation.  By appointing an experienced family lawyer and taking a proactive approach to litigation, it is very possible to avoid the Court or leave the court system sooner, allowing you to move on and focus on raising your children.

If you and your ex-partner cannot come to an agreed parenting arrangement and are seeking court intervention, ask yourself the following:

  • Do I want sole parental responsibility?
  • Why do I want sole parental responsibility?  Do I have a genuine concern about the other party’s ability to care for the children and/or capacity to co-parent effectively?
  • Why do I want the children to live with me?  Do I have a genuine concern about the children’s ability to adjust or the new lifestyle of my ex-partner?
  • Are my children at risk of violence, abuse or neglect? Do I have any evidence of this?

If your concerns are genuine and you cannot come to a resolution outside of the Court, you can file an application in the Family Law Courts for Parenting Orders. You should seek advice about whether any exemptions to attending family dispute resolution first apply to your circumstances. Found out more about how to calculate child support in Australia.

What is the legal process for getting child custody (parenting order)?

Before starting the process to get a parenting order, commonly referred to in the media and community at large as child custody, you should first consult with your solicitor before taking any action. You generally must be able to demonstrate that you have tried alternative methods of dispute resolution prior to filing an application, unless your situation is urgent or another exemption applies (for example it involves family violence or child abuse). 

If you were unable to reach an agreement through dispute resolution methods, then you will need to file documents with the Federal Circuit and Family Court of Australia. This includes the initiating application, affidavit(s), mediation certificate, notice of risk, and the court filing fee. 

What the court takes into consideration

The Courts’ primary focus in deciding on custody (parenting order) is what is in the child’s best interests.  The primary considerations are;

  • The benefit to the child of having a meaningful relationship with both parents
  • The need to protect children from any harm, such as family violence, neglect or physical and psychological harm

The latter is always deemed the priority of the two primary considerations.  

Other additional considerations may include;

  • The views or wishes of the child – if these are expressed
  • The relationship of child with their parents and significant others, for example grandparents and siblings
  • Parental involvement – how much time each parent has spent with the child, whether they have fulfilled their parental obligations, opportunities taken up to spend time or communicate with a child
  • The effect of any changes – such as where the child has been living or staying, practical difficulties of spending time with each parent or significant others
  • Cultural issues – for example religion
  • Any family violence issues
  • Any other issues the court deems are important to the case

Breaching a parenting order

As parenting orders are court ordered, all involved must comply with it. If a person breaches a parenting order, it is considered very serious and can result in:

  • Court-ordered participation in a parenting program
  • Changes to the existing parenting order
  • Fines
  • Court-ordered community work
  • Jail time in extreme/serious cases

What if I already have a parenting order in place and circumstances change?

If you have an existing parenting order and want to make changes, then you will need to prove to the Court that there has been a significant change in circumstances.

If both parties agree that there is a need to change the existing order and agree on the proposed changes, then you can file a draft consent order together, which the Court can then formalise without your physical presence in court. 

If there have been significant changes in circumstances but both parties cannot come to an agreement on the proposed changes to the parenting order, then you will have to essentially redo the initial process of applying for a parenting order as if it were the first time.  This is an application to vary parenting orders and expert legal advice should be sought first.

Get help with your parenting plan today

If you are going through a separation and need help with your parenting plan, our family lawyers are here to help. At Daykin Family Law, we’ve worked with hundreds of parents to come to a resolution in the best interests of their children, in and out of court.

For expert legal advice on the most appropriate and cost effective course of action for you and your family, contact us on (07) 3338 5645 to make an appointment for a fixed fee initial consultation today.

Keep in mind that extensive changes to parenting laws under the Family Law Act 1975 (Cth) will take effect from May 2024.  The information contained in this article is current as at the time of posting.  We recommend that current legal advice is obtained.

Binding Financial Agreements (BFAs) offer couples and separated couples a sense of certainty and control over their financial matters. These agreements, often set up before or during a marriage, as well as after separation, can regulate finances during the relationship and/or outline the distribution of assets and financial resources, among other things, in the event of separation or divorce. Designed to provide clarity and prevent disputes, BFAs are essential for some in planning the financial aspects of the breakdown of a relationship. Are BFAs different to prenups? No, it is just a different terminology.

What is a Binding Financial Agreement?

A Binding Financial Agreement (BFA) is essentially a written agreement between two or more parties concerning a range of matters such as the distribution of property in the event of separation or divorce, regulation of finances during a relationship and spousal maintenance as some examples. Typically BFAs are signed either before cohabitation, before marriage (prenuptial, or prenup as they are sometimes known), during the relationship, or after separation or divorce. This agreement allows couples and separated couples to manage their financial affairs without court intervention.e

For a BFA to be legally valid, specific requirements must be met. These include a full disclosure of each party’s financial situation, ensuring the agreement is entered into voluntarily without coercion or fraud etc. Both parties must receive independent legal advice before signing the agreement. This helps each individual understand their rights, the advantages and disadvantages of entering into the BFA and the effect of the BFA on their rights. The document must be in writing and signed by both parties, making it a formalised agreement recognised by Australian courts.

Not sure if you need a BFA? Check out our article that discusses if you need a Binding Financial Agreement or not.

Key Benefits of a Binding Financial Agreement

Here are a few of the benefits of signing a BFA. 

Clarity and Protection

BFAs provide clear guidelines for asset and financial management upon the breakdown of a relationship. They ensure transparency in how assets will be divided or managed, offering invaluable clarity.

Reduces Conflict

By setting predetermined terms, BFAs can help avoid emotional and financial stress from legal disputes over assets. They’re especially beneficial in relationships with significant property and assets, protecting individual interests.

Predictability

BFAs offer security and predictability, aiding in planning for potential relationship breakdowns. This feature is crucial for effective long-term financial planning, allowing informed decisions on investments and property.

Proactive 

BFAs provide a proactive strategy for managing financial relationships. They allow couples to autonomously define their financial futures and protect their assets, leading to more harmonious financial relationships.

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Can a Binding Financial Agreement Be Overturned?

Binding Financial Agreements are designed to provide stability and certainty, however, certain circumstances can lead to these agreements being challenged or even overturned which is known as being “set aside”. 

One of the grounds where a BFA may be overturned is in situations where the agreement was obtained by fraud (including non-disclosure or a material matter). This can include the concealment or misrepresentation of assets, financial resources and/or income as some examples. For example, if there is evidence that one party has failed to disclose significant assets or Trust interests at the time of signing the BFA, this could lead to a party applying to the court for orders to set the BFA aside.

Undue influence or coercion can also be other grounds for challenging a BFA, relevant to a party engaging in conduct that was, in all of the circumstances, unconscionable. This can occur when one party is pressured into signing the agreement without free will, often due to an imbalance of power within the relationship. It is important that both parties enter into a BFA willingly and without undue pressure.

If the BFA was entered into without proper legal advice, or if the legal advice provided was inadequate, this could be a basis for overturning. Australian family law mandates that both parties receive independent legal advice to ensure that they fully understand their rights and the terms of the agreement etc.

Material changes in circumstances, especially those relating to a child of the relationship and hardship, can also lead to a BFA being challenged in the Court by a party. In such an application, the Court would generally consider whether as a result of the change, the child or a party who has caring responsibility for a child will suffer hardship if the Court does not set the BFA aside.

So while BFAs provide a solid framework for managing financial relationships, they are not watertight and there are no guarantees that they won’t be challenged in certain circumstances set out in the Family Law Act 1975 (Cth). Parties entering into a BFA should ensure transparency and proper legal guidance from someone like Daykin Family Law to uphold the strength of their agreement.

The Process of Challenging a BFA

Contesting a Binding Financial Agreement in court is a process that involves several steps.

The initial step in challenging a BFA typically involves seeking expert legal advice. A family lawyer can assess the validity or strength of your claim against the BFA and legislation, and guide you through the legal process. They can help identify if there are grounds for the challenge/application to set aside a BFA, such as referred to above.

Once a valid basis for contesting the BFA is established, the next step may be to seek to negotiate with the other party to resolve the issues. This can take place via lawyers or in a mediation for example.

In some cases, a court application may be necessary. This application should detail the evidence upon which the application to set the BFA aside is made. The legal process may involve pre-trial conferences or mediation attempts to reach a resolution without a full court hearing.

If the matter proceeds to a final hearing in court, both parties will present their arguments and evidence. This stage is where the roles of legal counsel are most pronounced. Solicitors assist in the preparation of trial documents such as affidavits and Case Outlines. Lawyers (generally Barristers) for each party will make submissions, test the evidence under cross-examination of witnesses and present evidence to the court. The Judicial Officer will consider the evidence and make a decision as to whether orders should be made for the BFA to be set aside.

Case Studies: Hypothetical Examples of Overturned BFAs

To illustrate how BFAs can be challenged and overturned, let’s examine a few hypothetical scenarios. 

Scenario 1: Concealment of Assets

John and Sarah signed a BFA during their marriage, agreeing on the division of their assets in the event of separation. Years later, during a dispute, Sarah discovered that John had undisclosed investments worth a significant sum at the time of signing the BFA. Sarah sought legal advice and contested the BFA in court. The court found that the BFA was obtained by fraud due to John’s failure to make appropriate disclosure to Sarah at the time of entering into the BFA. The BFA was set aside. 

Scenario 2: Coercion and Undue Influence

Emma and Mark entered into a Binding Financial Agreement shortly before their marriage. Emma, at the time, felt pressured by Mark and his family to sign the agreement quickly. The wedding invitations had gone out and Mark presented Emma with a BFA 1 week before the wedding. Mark told her to sign it or she’ll be on the streets. Years into the marriage, when the relationship soured, Emma challenged the BFA on the grounds of unconscionable conduct by Mark. The court, upon reviewing the circumstances under which the BFA was signed, set the BFA aside.

Scenario 3: Issues with Independent Legal Advice

Liam and Chloe entered into a BFA soon after they married. Chloe spoke to a lawyer for advice and showed her the BFA before she signed it. The lawyer spent 15 minutes with Chloe and did not discuss the BFA terms with her, just BFAs generally. Chloe signed the BFA during the meeting. Later when the relationship broke down, Liam’s lawyer sent correspondence to Chloe about putting the BFA’s terms into effect. Chloe did not understand what was being put to her as she never received legal advice on the terms or what impact the BFA would have on her. The terms were harsh against Chloe and mostly favoured Liam. Chloe applied to the court for orders that the BFA was not binding, one of the reasons being that she did not receive independent legal advice under the legislation. Liam tried to argue that despite this, it would be unjust and inequitable if the BFA were not binding on the parties and he sought orders declaring that the BFA is binding on them both. Liam failed in his arguments and the court made orders as sought by Chloe.

Each of these scenarios underscores the importance of full disclosure, voluntary agreement and quality advice in the preparation and negotiation of BFAs. They also highlight that while BFAs can be binding, they are not immune to legal scrutiny and can be overturned in certain circumstances under the legislation.

How to Ensure Your BFA Stands the Test of Time

Creating a Binding Financial Agreement that endures over time and withstands legal challenges involves careful consideration, transparency, and adherence to legal standards. Here are some tips and best practices to ensure your BFA is robust and enduring:

Prioritise Full Disclosure

One of the most critical aspects of a strong BFA is the full and frank disclosure of both parties’ respective financial circumstances. This transparency minimises the risk of future disputes over undisclosed assets.

Seek Independent Legal Advice

Each party must obtain independent legal advice before entering into a BFA. This ensures that both individuals fully understand their rights and the implications of the agreement, among other things. The quality of legal advice is important also given case law on this issue.

Ensure Fairness and Reasonableness

A BFA that is heavily skewed in favour of one party may be more likely to face challenges. Crafting an agreement that is fair and reasonable for both parties can enhance its stability. Consider the future implications of the agreement, especially in scenarios like changing financial circumstances or the care of children.

Review and Update When Need Be

Circumstances change, and so might the relevance of a BFA. Regular reviews of the agreement in light of new life events, such as the birth of a child or significant changes in financial status, can ensure the BFA remains applicable and fair. Amendments can be made with the consent of both parties to reflect these changes and there are strict legal requirements to adhere to when varying the terms of a BFA.

Document the Process

Keeping a record of the negotiation and drafting process, including the advice given by legal professionals and the rationale behind decisions, can be important. This documentation can provide clarity and support the validity of the BFA if its contents are ever questioned.

Use Clear and Unambiguous Language

The wording of the BFA should be clear, concise, and free of legal ambiguities. Unclear language can lead to different interpretations, which might result in disputes. High quality legal drafting helps in ensuring the language used accurately reflects the intentions of both parties.

Family Lawyers For Binding Financial Agreements

BFAs are powerful tools. Their strength can lie in their drafting and the ongoing cooperation of the parties involved. Regular review and legal counsel can ensure that your BFA not only meets current legal standards but also reflects your changing life circumstances.

Whether you are considering if you need a binding financial agreement, need to review an existing one, or find yourself in a position where you may need to challenge or defend a BFA, seeking professional legal advice is advised. With expertise in family law and a deep understanding of BFAs, Daykin Family Law is equipped to provide you with the guidance and support you need. Shannon Daykin is a Queensland Law Society Accredited Family Law Specialist with a depth of experience in drafting and advising on BFAs, including in complex and high net wealth matters. Contact us today to ensure that your financial future is secured and managed according to the highest legal standards.

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