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.
Separation and divorce brings many challenges, especially when there are children involved. 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.
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.
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.
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 which examines the situation of both parents. There are six different formulas used to calculate the child support amount.
In most cases, the annual amount of child support will be calculated using Formula 1, the Basic Child Support Formula 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
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 percentage | Equal to number of nights a year | Equal to number of nights a fortnight | Care level | Cost percentage |
| 0-13% | 0-51 | 1 | Less than regular care | 0% |
| 14-34% | 52-127 | 2-4 | Regular care | 24% |
| 35-47% | 128-175 | 5-6 | Shared care | 25% plus 2% for every percentage point over 35% of care |
| 48-52% | 176-189 | 7 | Shared care | 50% |
| 53-65% | 190-237 | 8-9 | Shared care | 51% plus 2% for every percentage point over 53% of care |
| 66-86% | 238-313 | 10-12 | Primary care | 76% |
| 87-100% | 314-365 | 13-14 | More than primary care | 100% |
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 income | Cost of 1 child | Cost of 2 children | Cost of 3 or more children |
| $0 to $42,695 | 17c for each $1 | 24c for each $1 | 27c 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 |
| Combined child support income for one year | Cost of 1 child | Cost of 2 children | Cost of 3 or more children |
| $0 to $42,695 | 23c for each $1 | 29c for each $1 | 32c 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 |
| Combined Child Support income for one year | Cost of 2 children | Cost of 3 or more children |
| $0 to $42,695 | 26.5c for each $1 | 29.5c 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 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 dollars in child support to Mary each year, which works out to roughly $136 dollars 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.
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.
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.
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.
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.
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 BFA 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 entering into a BFA, 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.
With around 48% of divorces involving children under 18 years old in Australia, creating a co-parenting plan that minimises the negative effects of separation for children still living at home is crucial.
Parenting plans can be complex and require patience, understanding and often, a helping hand.
At Daykin Family Law, our expertise surrounding parenting plans and disputes has helped us get recognised as one of Brisbane’s leading lawyers in parenting and children matters in 2023 and prior years.
We’ve used our knowledge and expertise to create a guide that will help you create a parenting plan, tips for some of the best communication strategies, and to help prepare you to navigate any potential challenges.
What Is Co-Parenting? - Meaning And Benefits
Co-parenting can be understood as a shared parenting arrangement where separated or divorced parents work together to raise their children. It involves communication, collaboration, and mutual decision-making, focusing on your children’s well-being and best interests. There are a range of benefits when parents can successfully co-parent including:
- Provides children with stability and a sense of security.
- Reduces conflict exposure, benefiting children’s emotional health.
- Encourages both parents to remain actively involved in their children’s lives.
- Helps children maintain strong relationships with both parents.
When creating a co/parenting plan, it may be best to ensure compliance the Family Law Act (Cth) 1975, depending on your circumstances. Agreements can be recorded in a Parenting Plan under the Act or consent orders, as some examples.
The Legal Framework Of Co-Parenting In Australia
Australia’s approach to co-parenting after separation is governed by the Family Law Act (Cth) 1975, which prioritises the best interests of children in all parenting decisions.
Under this framework, co-parenting arrangements are encouraged as a means to ensure children have meaningful relationships with both parents post-separation when it is safe to do so.
This Act outlines the responsibilities and rights of parents, stressing the importance of children’s safety and emotional well-being.
It advocates for shared responsibilities and duties, focusing on the best interests of the child as the paramount consideration.
In Australia, the Family Law Act also supports flexible arrangements, catering to the diverse needs of different family structures.
With this in mind, you’re now ready to create your co-parenting plan.
Guide To Developing A Co-Parenting Plan
The most important step in creating a parenting plan or co-parenting plan is to prioritise the needs and well-being of your children above all else. Every decision and discussion should be centred on what is best for them. To ensure your parenting plan achieves this goal, it’s crucial to approach these conversations with openness and a willingness to understand each other’s perspectives if it is safe to do so. Here are some examples:
Co-Parenting Plan Element | Specifics to Include |
Living Arrangements |
|
Time Arrangements |
|
Education Plans |
|
Healthcare Arrangements |
|
Extra-curricular Activities |
|
Parenting Styles and Values |
|
Travel and Vacations |
|
Communication Guidelines |
|
Financial Responsibilities (see note at the end of this table) |
|
Dispute Resolution |
|
Process for Revising the Plan |
|
Special Considerations |
|
Transition Guidelines |
|
For certain financial responsibilities relating to child support to be binding and enforceable, these may need to be recorded in a Limited Child Support Agreement or Binding Child Support Agreement.
Communication Strategies For Successful Co-Parenting
Effective communication stands at the heart of successful co-parenting. It lays the foundation for mutual understanding, problem-solving, and decision-making, all crucial in maintaining a healthy environment for your children. Here are our key strategies to enhance communication in a co-parenting arrangement:
Establish Clear Communication Channels
Decide on the most effective and consistent ways to communicate, be it through emails, texts, or phone calls. Utilising co-parenting apps can also streamline communication, keeping it focused and organised. This is of course on the basis it is safe to do so.
Adopt A Business-Like Tone
Approach communication with a professional and respectful tone can assist. This helps in keeping discussions objective and focused on your children’s needs, rather than personal grievances.
Engage In Active Listening
Make a conscious effort to listen and understand the other parent’s perspective. Acknowledging their views does not always require agreement, but it fosters a collaborative environment.
Choose Your Battles Wisely
Not every disagreement needs to escalate. Determine which issues are worth discussing and which can be let go in the larger interest of your children.
Plan Regular Check-Ins
Schedule regular discussions to review how the co-parenting plan is working and address any emerging issues. This can prevent small problems from becoming larger conflicts.
Utilise Professional Support When Needed
In situations where communication becomes challenging, don’t hesitate to seek help from mediators or counsellors. They can offer guidance and strategies to improve dialogue.
Remember, effective co-parenting communication is not about winning arguments but about working together for the best outcomes for your children. By prioritising respectful and clear communication, you pave the way for a more harmonious and effective co-parenting journey.
Navigating Challenges And Conflicts In Co-Parenting
Handling challenges and conflicts is an inevitable part of co-parenting. If these obstacles are not managed effectively, they can impact not only the parents but also the children involved. Here are some strategies to navigate these difficulties:
- Acknowledge and respect differences in parenting styles and perspectives
- Focus on collaborative problem-solving over dwelling on the problem
- Keep children out of conflicts
- Seek professional guidance when conflicts become unmanageable or safety is an issue
- Develop a conflict resolution plan to handle disagreements
- Regularly review and adjust your co-parenting plan as your situations change
Remember, the goal in co-parenting isn’t to avoid conflicts altogether, but to handle them in a way that maintains respect, focuses on solutions, and prioritises your children’s best interests. By adopting these strategies, co-parents can create a stable and positive environment for their children.
Should I Involve A Lawyer During The Co-Parent Planning Process?
Deciding whether to involve a lawyer during the co-parenting planning process is a significant consideration for many parents. Some of the benefits a family lawyer can bring include:
Legal Expertise
Lawyers bring an understanding of family law that is crucial in drafting a parenting plan. They ensure that your agreement is not only fair but also complies with legal standards.
Objective Perspective
Emotions can run high during the planning of co-parenting arrangements. Lawyers provide an objective viewpoint, focusing on the best interests of the children and helping to navigate sensitive discussions.
Ability To Identify Potential Issues
Experienced lawyers can foresee potential problems and address them in the planning stage, which can prevent misunderstandings and conflicts in the future.
Ensuring Enforceability
For a co-parenting plan to be legally enforceable, it often needs to meet specific legal criteria. A lawyer can ensure that all necessary elements are included depending on how any agreement is to be recorded (such as a Parenting Plan or Consent Orders).
Assistance With Mediating Disputes
If disagreements arise during the planning process, lawyers can engage mediators or liaise with the other parent or lawyer, helping to find amicable solutions that serve all parties involved.
While involving a lawyer in the co-parenting planning process is not mandatory, their involvement can bring legal assurance, clarity, and peace of mind, making the process smoother and more effective for everyone involved.
Other Co-Parenting Resources And Support Systems
While there are numerous counselling services, support groups and educational materials you can use to help navigate co-parenting, below are some links that might help when you feel like you need 3rd party support:
- Relationships Australia provides relationship support services for individuals, families and communities contact
- Australian Psychological Society can provide listings of qualified therapists and psychologists specialising in family matters.
- Family Relationship Advice Line is a national telephone service that helps families affected by relationship or separation issues, including information on parenting arrangements after separation
A suitably qualified family lawyer can help advise on the next steps that need to be taken.
Looking For Help With Your Co-Parenting Plan?
In summary, effective co-parenting requires thoughtful planning, clear communication, and sometimes, the guidance of legal professionals.
By carefully considering each step and seeking the right support, you can lay a strong foundation for a positive co-parenting journey.
If you’re navigating the co-parenting process and need expert legal advice, Daykin Family Law is here to help.
Contact us on 07 3852 5490 or via our online contact form to ensure your co-parenting plan is comprehensive, appropriate, safe, and tailored to your family’s unique needs.
Questions about the process of child custody mediation are often asked by our clients. We all know 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) suggests first and foremost that couples do 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 mediation, that’s where a mediator comes in. Your 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, to facilitate proactive discussion in a safe, controlled environment that allows a resolution to be reached which 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 to discuss the issues and potentially write up a new Parenting Plan. Legal representatives are not permitted in that 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 not usually a preferable course of action and is usually an expensive one. Mediation allows you to come to an acceptable resolution swiftly and cost-effectively.
When isn’t mediation appropriate?
Sometimes, mediation in custody cases 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.
Navigating family disputes can be overwhelming, with emotions and legal complexities making the journey challenging. However, family law is not only about legal battles; it’s also about preserving relationships while addressing concerns and goals, and this is where collaborative practice can help.
Collaborative practice is a process of dealing with these complex issues in a way that focuses on co-operating towards a desired outcome. It really shines when it comes to family law, as it values empathy, understanding, and mutual respect over adversarial interactions.
What is Collaborative Practice?
Collaborative practice, also known as collaborative law, emphasises the importance of co-operative negotiations in family law matters, over traditional methods, that can be more adversarial.
With collaborative practice, separating couples and their lawyers engage in family-focused discussions, aiming for mutually acceptable settlements through transparent and confidential negotiations. They generally enter a binding agreement to avoid litigation, ensuring a commitment to constructive dialogue.
This approach is holistic in nature, and not only involves lawyers but also jointly retained neutral experts where necessary, promoting a comprehensive resolution that considers the well-being of the entire family, rather than focusing solely on individual rights or adversarial tactics.
It’s not just lawyers who sit at the table: therapists provide emotional support, financial planners give economic insights, forensic accountant experts can assist with complex valuation issues and child specialists offer perspectives centred on the well-being of the children, as some examples. This ensures that every facet of a family dispute, whether emotional, financial, or legal, is addressed with the depth and care it deserves.
One of the leading bodies promoting collaborative practice in Australia is the Queensland Association of Collaborative Practitioners, and Shannon Daykin, the Director at Daykin Family Law, is a proud member. So believe us when we say we believe in this approach!
With that out of the way, let’s look at the core values of collaborative law a bit closer.
The Core Values of Collaborative Law
When looking at collaborative law as defined by the Australian Institute of Family Studies, there are a few core values that can be identified.
Voluntary Disclosure
Both parties agree to openly share all relevant information, ensuring there’s no room for hidden agendas or surprises. This creates an atmosphere of trust, essential for constructive dialogue.
Solution-Based Approach
The focus remains squarely on finding solutions that work for everyone involved. Instead of a zero-sum game where one party’s gain is another’s loss, collaborative practice seeks outcomes where all parties can feel heard and validated.
Mutual Respect
Even in disagreements, collaborative practice prioritises respect. Recognising the intrinsic value of each individual’s perspective and feelings fosters a more constructive environment for resolution.
Engagement of Professionals
Depending on the complexity and nature of the dispute, other professionals such as financial advisors, child specialists, or counsellors might be engaged to provide a balanced solution.
Commitment to Avoid Litigation
Both parties, along with their respective lawyers, enter into a binding agreement that they’ll abstain from resorting to litigation while engaged in the collaborative process. This commitment ensures that every effort is channelled towards negotiation and consensus.
Through these central principles of understanding and cooperation, collaborative practice offers an alternative to the often aggressive dynamics of traditional legal proceedings.
Collaborative Practice in Family Law and Divorce
This co-operative practice is especially valuable in family law matters such as divorce and separation. A divorce, by nature, can be contentious and heavy with emotions. However, applying the principles of collaborative law to divorce proceedings promotes an environment where both parties strive for a collective solution.
Instead of courtrooms, decisions surrounding the divorce are made in collaborative meetings, ensuring both parties have a voice. There’s less confrontation, often leading to better, more sustainable outcomes. This approach ensures a fair resolution in terms of tangible assets and financial matters but also a careful navigation of emotional and psychological aspects associated with divorce.
Benefits of Collaborative Practice
Using collaborative practice to resolve disputes can significantly influence not just the immediate outcome, but also the long-term well-being of all involved. When dealing with disputes through Collaborative Practice, it offers a range of benefits that make it a compelling choice for many, such as:
Client Empowerment and Control
Unlike the unpredictable nature of court proceedings, Collaborative practice places the power squarely in the hands of the individuals involved. Clients are active participants, shaping the course of discussions and decisions. This empowerment instils a sense of ownership and commitment to the resolutions reached.
Positive Environment for Children
In family disputes, especially those involving children, the overarching goal is often to ensure their well-being and shield them from undue stress. Collaborative practice, with its emphasis on dialogue and understanding, ensures that children are spared the brunt of adversarial confrontations. Their needs and emotions are prioritised, ensuring a more nurturing environment amidst the upheaval.
Cost-Effective and Efficient
The prolonged nature of traditional litigation can be both time-consuming and financially draining. In contrast, collaborative practice, by sidestepping court battles, often results in quicker and more cost-effective resolutions. The collaborative approach emphasises direct communication, which can lead to swifter consensus and lower costs in the long run.
Preservation of Relationships
Family disputes, if handled combatively, can leave a lasting effect on relationships. Collaborative practice strives to prevent estrangements. By fostering mutual respect and understanding, it encourages parties to move past their differences, preserving familial ties. This becomes especially important in situations where ongoing interactions, such as co-parenting, are inevitable.
Fostering of Mutual Respect
By treating each perspective with dignity and value, collaborative practice allows for more harmonious interactions. Over time, this approach can help replace animosity with understanding, leading to more sustainable resolutions.
Collaborative Practice at Daykin Family Law
If you are going through a family dispute and are seeking a resolution-centric approach, Daykin Family Law is here to guide and support you. Our expertise in collaborative law ensures you’re not just represented but also understood, respected, and empowered. Contact us today for guidance on collaborative methods for any family law-related concerns, and whether this may be right for you and your family.
On October 11, 2023, the Queensland Government, under the leadership of the Palaszczuk administration, marked a significant milestone in the battle against domestic, family, and sexual violence by introducing landmark legislation that will make coercive control a criminal act in Queensland.
The bill, known as the Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Bill 2023, comes in the wake of recommendations from Queensland’s Women’s Safety and Justice Taskforce.
In a public statement, the QLD Government stated that the offence of coercive control in Queensland will carry a maximum sentence of 14 years in prison, and criminalises the actions of an adult under the following conditions:
- the person is in a domestic relationship with another person;
- the person engages in a course of conduct against the other person that consists of domestic violence occurring on more than one occasion;
- the person intends the course of conduct to coerce or control the other person; and
- the course of conduct would, in all the circumstances, be reasonably likely to cause the other person harm (with ‘harm’ defined in the Bill to mean any detrimental effect on the person’s physical, emotional, financial, psychological, or mental well-being, whether temporary or permanent).
At this stage, the new coercive control laws in QLD won’t come into effect until 2025, but this Bill still represents a significant step forward in addressing domestic violence in the state.
What is Coercive Control?
Coercive control is commonly understood as a form of domestic abuse where one individual consistently exercises power and dominance over another through behaviours that intimidate, threaten, or undermine the victim.
Instead of, or in addition to, physical violence, it involves a pattern of manipulative behaviours that may include emotional, psychological, financial, and digital control, aimed at making the victim reliant on the perpetrator and restricting their independence.
The intent often is to trap the victim in the relationship and deprive them of their agency and autonomy. This recent legislation has criminalised this behaviour, recognising its significant detrimental impact on the victim’s physical, emotional, financial, psychological, or mental well-being.
Find out more about the signs of coercive control and what to do when you spot them.
How Did This New Queensland Law Come About?
This law arises from the first report released by Queensland’s Women’s Safety and Justice Taskforce which is an independent, consultative taskforce created by the Queensland Government.
The report, known as Hear Her Voice – Report One – Addressing coercive control and domestic and family violence in Queensland, was first released in 2021 and features 89 recommendations to the Queensland Government on how to reform the domestic violence service and justice systems. These recommendations were devised after listening to more than 500 submissions from predominantly women and girls regarding their experiences with coercive control.
Hear Her Voice - Hearing Queensland’s Women Loud and Clear
The Hear Her Voice report brought to light the pressing issues that many victims face when seeking help. An overwhelming number of victims recounted unsatisfactory responses when reaching out to the police for assistance with domestic violence. This raised concerns about inconsistent and inadequate training for officers handling these sensitive cases. Many victims detailed being turned away, not being believed, or having their experiences minimised by the very people who were supposed to protect them – the police.
The report found that the disconnect and inconsistency in responses had led to a decline in trust in the Queensland Police Service (QPS) among many victims of domestic and family violence. The Taskforce acknowledged that while significant investments had been made in the QPS and officers and teams were doing commendable work, cultural issues persisted, preventing the effective handling of domestic violence cases.
To address these deeply ingrained issues, the Taskforce recommended the establishment of an independent commission of inquiry into the police. This commission’s report led to a $100 million investment into a variety of reforms and initiatives to provide enhanced support and protections to those caught up in domestic violence, among which was the introduction of new laws criminalising coercive control.
What Other Changes Can We Expect?
On top of the new legislation criminalising coercive control in Queensland, the QLD Government has stated there will be:
- Enhanced intervention and better victim support: Increased resources for services to manage and reform offenders and provide additional support for survivors to ensure their safety and recovery.
- New perpetrator diversion scheme: New strategies to hold perpetrators responsible via a court-driven program directing offenders to intervention sessions.
- New aiding violence offence: Charges for those indirectly enabling domestic violence will be established.
- Tougher penalties: New aggravating factors will be introduced to further penalise domestic violence offences.
On top of this Queensland’s Women’s Safety and Justice Taskforce released a second report in 2022 titled Hear Her Voice – Report Two – Women and girls’ experiences across the criminal justice system, which is split into two volumes: volume one and volume two.
Hear her voice – Report two
Hear her voice – Report two – Women and Girls’ Experiences across the Criminal Justice System delves deep into the challenges women and girls encounter within the criminal justice system, both as victims of sexual violence and in roles as accused individuals or offenders.
Report Two outlines a strategic plan for Queensland, aiming to improve our criminal justice system, ensuring those who interact with it – whether as victims, accused, or both – receive trauma-informed care. The Queensland Government stated that it is committed to considering all 188 recommendations from the Taskforce.
What Does This Mean for You?
With these extensive changes and commitments, Queensland residents can ideally anticipate a criminal justice system more attuned to the nuanced challenges faced by victims, ensuring a more compassionate, responsive, and robust framework against domestic and family violence.
The current legislative changes are just the beginning of a broader shift towards redefining how Queensland addresses domestic and family violence.
Reach Out Against Coercive Control
If you or someone you know is being subjected to a situation of coercive control, remember that you’re not alone and there are resources available to support you. Here are some steps you can take to deal with coercive control:
- Recognise the signs: The first step is to understand the signs of coercive control. This will empower you to seek the help you need.
- Reach out: Try and talk with trusted friends and family members, or your medical practitioner or counsellor, about the situation, whether it be your own or someone close to you. If you have no one close to you that you can talk to then reach out to one or more of the following resources.
- Available resources: There are numerous dedicated hotlines available to provide immediate assistance. Here are a few key contacts:
- Relationships Australia (Queensland branch): 1300 364 277
- 1800RESPECT: 1800 737 732
- DVConnect Womensline: 1800 811 811
- DVConnect Mensline: 1800 600 636
- Sexual Assault Helpline: 1800 010 120
- Kids Help Line: 1800 55 1800
- Lifeline: 13 11 14
- Prioritise safety: If you or your children are in immediate danger, call 000 immediately. Safety should always be the top priority.
- Seek legal advice: The intricacies of legal processes can be challenging to navigate. Professional legal advice can help you understand your rights and the options available to you. At Daykin Family Law, our expert team is ready to guide you through these challenging times. Contact us today to find out how we can help.
Please remember, that every person’s situation is different. What helps one person might not be right for another. You’re not in this on your own; there are those out there ready to lend a hand and support you through it.
In this article, we look at how long divorce takes in Australia.
Divorce can be a complicated process to navigate as it requires 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 there are many factors that come into play.
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.
It’s also important to note the distinction between the divorce itself, which is simply the legal severance of the marriage, and everything else that is separate such as property settlement, child support, 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 relating to other matters 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.
There are two other common factors that may delay the actual divorce process itself:
- if you struggle to serve your spouse with sealed copies of the divorce application, although this is only relevant if you make a sole application.
- If the other party objects.
- if the application itself has any issues.
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.
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.
In this article, we look at how assets are divided in a divorce in Australia.
Navigating the challenging path of divorce is difficult enough without the added worry of how assets will be divided, which can be a mystery for many. This crucial process, often marred by emotional turmoil and tension, is of immense importance as it can significantly impact the financial stability of each party involved.
In Australia, the law provides specific guidelines in essence on asset division in the event of divorce or de facto separation. It’s a fairly complex process, more complex than many think, steeped in legislation and legal intricacies, which mandates careful consideration of several factors.
This article aims to shed some light on these factors, helping you understand how assets are divided in a divorce in Australia, and provide you with the essential knowledge to navigate this path with clarity and confidence.
What are Assets in a Divorce?
Assets that you’ll need to consider when dividing assets in a divorce include (but are not limited to):
- The family home: Often the largest shared asset between partners.
- Vehicles: Cars and any other owned vehicles.
- Businesses/entities: Ran by one or both parties, or a business interest for example.
- Investment properties: Real estate properties acquired as a financial investment.
- Financial investments: This includes shares, stocks, mutual funds, and bonds.
- Family trusts: Established for various purposes such as tax planning or asset protection.
- Personal property: This can include items like jewellery and collectibles.
- Household items: Everyday items that may hold value.
- Savings: Monies accumulated over time.
Alongside assets, you also need to consider liabilities during divorce, for example:
- Personal or car loans: Any personal or motor vehicle loans taken out during the marriage.
- Business loans: Financial obligations tied to any business owned jointly or individually.
- Home mortgage: The outstanding debt on the family home or other properties.
- Credit card debt: Financial obligations from credit card usage during the marriage.
Superannuation and other financial resources also often need to be considered as part of the net assets available for distribution.
Now, let’s look at how to split these assets in a divorce.
How to Divide Assets in Divorce
There are a few common methods used to split assets during a divorce in Australia, including.
Common Methods Used to Split Assets
- Non-legal arrangement: This is often used in amicable divorces, where both parties mutually agree on the division of assets without the need for legal documentation. However, due to the lack of legal paperwork, it leaves room for potential disputes, as one party can later approach the court for financial orders as per the Family Law Act, for example. Due to this risk, it’s not commonly recommended by legal professionals.
- Binding financial agreement (BFA): A BFA is a legally binding document that can outline matters such as how the assets should be divided between the couple. It can be signed at any stage of the relationship – before, during, or at the end. A BFA stands unless there are exceptional circumstances that warrant it being set aside. It’s essential to engage a lawyer to draft and implement a BFA. It is a requirement that both parties have independent legal advice for a BFA to be binding and enforceable.
- Consent orders: Consent orders are a prevalent method used by couples finalising their financial affairs. Both parties agree on the division of assets and submit an application to the Federal Circuit and Family Court of Australia detailing their agreement. A Judicial Registrar reviews and approves these orders, making them legally binding.
- Litigation: This method is typically the last resort when former couples can’t agree on how to divide their assets. The Federal Circuit and Family Court of Australia (Division 1) and the Federal Circuit and Family Court of Australia (Division2) takes on the responsibility of deciding the division of assets, liabilities and financial resources in the event of dispute. The process can be lengthy (up to a year or more), costly, and requires regular Court attendance. It’s generally avoided unless absolutely necessary.
It’s important to remember that in the case of divorce in Australia, there is no fixed formula for asset division. It’s a misconception that assets are always divided equally; the actual division considers a variety of factors and is not a simple 50-50 split. The Court takes into account each party’s financial and non-financial contributions, the future needs of each party, and the justice and equity of the proposed division, for example. Understanding these issues can help individuals navigate the financial implications of divorce more effectively.
What to Consider When Dividing Your Assets In Divorce
In cases where negotiations fail and both parties cannot agree on property division, a Court-guided process is often necessary. It’s important to understand that divorce, which is the legal dissolution of a marriage, is a separate legal process from asset division and property settlement.
Property division can be finalised while the couple is still living together after separation or before the divorce is finalised. When the Court is involved, a five-step process is used to determine the division of assets. The substantive four steps are, briefly put:
- Valuing the assets: The initial step involves identifying and placing a value on the former couple’s assets, liabilities, and financial resources. This includes assets acquired before, during, and after the marriage. Assets can range from business interests, investments, vehicles, savings, and real estate, to even lottery winnings. Both parties’ superannuation benefits are also included in the asset pool.
- Analysing contributions: The court then evaluates the financial and non-financial contributions of both parties initially, during the relationship, and after separation.
- Assessing future needs: The future needs of both parties are considered next. This involves evaluating factors such as age, health, income, earning capacity, as well as care of children of the relationship under the age of 18 years, as some examples. The Court determines if any adjustments need to be made to the contribution-based entitlement on the future needs of each party.
- The practical effect: The final step involves the Court considering the practical impact of the property settlement on both parties to ensure that the outcome is just and equitable.
Now, let’s look at a specific example of how assets are divided in a divorce in Australia.
Example of Asset Division in an Australian Divorce
Jack and Lily are a married couple who have decided to separate. They have been married for 12 years, during which time they both worked full-time and had roughly the same annual income. They have two children, aged 6 and 9, who will be primarily living with Lily post-separation.
Their assets include:
A family home valued at $1.3 million
Savings amounting to $80,000
Two cars worth a combined value of $50,000
Superannuation: Jack’s superannuation is $200,000 and Lily’s is $180,000
Their liabilities include:
Remaining mortgage on the family home of $500,000
Car loan of $20,000
Credit card debt of $10,000
By totalling all the assets and subtracting the liabilities, we determine the net asset pool:
Total assets: $1.3m (home) + $80,000 (savings) + $50,000 (cars) + $200,000 (Jack’s super) + $180,000 (Lily’s super) = $1,810,000
Total liabilities: $500,000 (mortgage) + $20,000 (car loan) + $10,000 (credit card debt) = $530,000
So, the total net asset pool is $1,280,000 ($1,810,000 – $530,000).
Jack and Lily made equal financial contributions, but Lily took on the role as primary carer for the children in addition. Lily may, in that scenario, receive a higher percentage in her favour on the contributions step.
Lily will continue to be the children’s primary carer, so Lily may also receive an uplift on the future needs factors.
For example, let’s assume the court decides on a 60%/40% division in Lily’s favour. Lily would then receive $768,000 (60% of $1,280,000), and Jack would receive $512,000 (40% of $1,280,000).
Please note that this is a simplified example and actual asset division can be complex, depending on a multitude of factors. It’s crucial to consult with professional legal counsel, such as the team at Daykin Family Law, for guidance tailored to your specific circumstances.
Contact Daykin Family Law if You Need Help Diving Your Assets in Australia
If you’re facing a divorce in Brisbane or Wider Queensland and want more information on how assets are divided in a divorce in Australia, don’t hesitate to contact our team at Daykin Family Law. We’re dedicated to providing you with pragmatic advice to solve your issues efficiently and help you move towards the next chapter of your life.
