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.
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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
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.
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 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 $44,762 | 17c for each $1 | 24c for each $1 | 27c for each $1 |
| $44,762 to $89,523 | $7,610 plus 15c for each $1 over $44,762 | $10,743 plus 23c for each $1 over $44,762 | $12,086 plus 26c for each $1 over $44,762 |
| $89,523 to $134,285 | $14,324 plus 12c for each $1 over $89,523 | $21,038 plus 20c for each $1 over $89,523 | $23,724 plus 25c for each $1 over $89,523 |
| $134,285 to $179,046 | $19,695 plus 10c for each $1 over $134,285 | $29,990 plus 18c for each $1 over $134,285 | $34,915 plus 24c for each $1 over $134,285 |
| $179,046 to $223,808 | $24,171 plus 7c for each $1 over $179,046 | $38,047 plus 10c for each $1 over $179,046 | $45,658 plus 18c for each $1 over $179,046 |
Income over $223,808 Costs don’t go up past this cap | $27,304 | $42,523 | $53,715 |
Children aged 13 or older
| Combined child support income for one year | Cost of 1 child | Cost of 2 children | Cost of 3 or more children |
| $0 to $44,762 | 23c for each $1 | 29c for each $1 | 32c for each $1 |
| $44,763 to $89,523 | $10,295 plus 22c for each $1 over $44,762 | $12,981 plus 28c for each $1 over $44,762 | $14,324 plus 31c for each $1 over $44,762 |
| $89,524 to $134,285 | $20,142 plus 12c for each $1 over $89,523 | $25,514 plus 25c for each $1 over $89,523 | $28,200 plus 30c for each $1 over $89,523 |
| $134,286 to $179,046 | $25,513 plus 10c for each $1 over $134,285 | $36,705 plus 20c for each $1 over $134,285 | $41,629 plus 29c for each $1 over $134,285 |
| $179,047 to $223,808 | $29,989 plus 9c for each $1 over $179,046 | $45,657 plus 13c for each $1 over $179,046 | $54,610 plus 20c for each $1 over $179,046 |
Income over $223,808 Costs don’t go up past this cap | $34,018 | $51,476 | $63,562 |
Children of mixed ages
| Combined Child Support income for one year | Cost of 2 children | Cost of 3 or more children |
| $0 to $44,762 | 26.5c for each $1 | 29.5c for each $1 |
| $44,762 to $89,523 | $11,862 plus 25.5c for each $1 over $44,762 | $13,205 plus 28.5c for each $1 over $44,762 |
| $89,523 to $134,285 | $23,276 plus 22.5c for each $1 over $89,523 | $25,962 plus 27.5c for each $1 over $89,523 |
| $134,285 to $179,046 | $33,347 plus 19c for each $1 over $134,285 | $38,272 plus 26.5c for each $1 over $134,285 |
| $179,046 to $223,808 | $41,852 plus 11.5c for each $1 over $179,046 | $50,134 plus 19c for each $1 over $179,046 |
Income over $223,808 Costs don’t go up past this cap | $47,000 | $58,639 |
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 $99,841 per year, and Mary makes $59,841. Now let’s go through the formula step by step.
Identify the child support income for each parent.
The self-support amount is defined as taxable income minus one third of the MTAWE (Male Total Average Weekly Earnings). The self-support amount will be the same for both parents. In 2025, the MTAWE is $89,523, meaning the self-support amount is $89,523 / 3 = $29,841.
| Bob | Mary | |
|---|---|---|
| Taxable Income | $99,841 | $59,841 |
| Self-support amount | $29,841 | $29,841 |
| Child support income | $70,000 ($99,841 – $29,841) | $30,000 ($59,841 – $29,841) |
Bob’s child support income is $70,000 and Mary’s is $30,000.
Calculate the combined child support incomes.
$70,000 + $30,000 = $100,000
Calculate each parent’s income percentage.
Bob: ($70,000 / $100,000) x 100 = 70%
Mary: ($30,000 / $100,000) x 100 = 30%
Determine each parent’s percentage of care.
Bob cares for the child 3 nights each fortnight, while Mary cares for the child the remaining 11 nights. Bob is a regular carer, and Mary is the primary carer.
Determine the cost percentage.
Using the standard cost percentage table, Bob’s cost percentage is 24% and Mary’s is 76%.
Calculate each parent’s child support percentage.
Bob: 70% – 24% = 46%
Mary: 30% – 76% = -46%
Since Mary’s child support percentage is negative, she will receive child support.
Work out the cost of each child.
Bob and Mary have one child aged 9. With a combined child support income of exactly $100,000, they fall within the $89,524 to $134,285 bracket. The cost calculation is $14,324 plus 12 cents for each dollar their combined child support income exceeds $89,523.
Calculation:
$100,000 – $89,523 = $10,477
$10,477 x $0.12 = $1,257.24
$14,324 + $1,257.24 = $15,581 (rounded)
The annual cost of their child is $15,581.
Calculate child support amount.
Bob’s payment is calculated as follows:
$15,581 x 46% = $7,167 annually
This means Bob must pay $7,167 per year in child support to Mary, approximately $137.83 per week.
For the latest details on minimum and maximum child support payments and specific conditions, parents should directly refer to Services Australia for accurate and up-to-date guidelines.
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.
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 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.
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.
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 |
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Education Plans |
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Healthcare Arrangements |
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Extra-curricular Activities |
|
Parenting Styles and Values |
|
Travel and Vacations |
|
Communication Guidelines |
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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.
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 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.
Divorce or separation can be a challenging time for anyone, especially when it comes to dividing property and finances. As one of the most significant issues to consider during the legal process, property settlement after divorce or separation can cause a great deal of stress and uncertainty. However, understanding the ins and outs of divorce property settlements can help you achieve the best possible outcome for yourself and your family.
In this article, we cover some handy things to know about property settlement after divorce including the legal framework, and the factors that influence property division, and we also look at an in-depth example. Our aim is to provide you with the information and resources you need to navigate this complex area of family law with confidence.
At Daykin Family Law, we believe that a comprehensive understanding of divorce property settlements is essential in achieving a fair and just outcome for all parties involved. If you’re in the Brisbane area, contact us today to speak to our property settlement lawyers.
How Does Property Settlement Work?
Property settlement in the context of a relationship breakdown can be a complex and emotionally charged process. It can involve the division of assets, financial resources, superannuation, and debts between two parties following the end of their relationship.
If you separated from your de facto partner after 1 March 2009, you may have the right to apply for a property settlement and/or maintenance under the Family Law Act.
How To Reach A Property Settlement Agreement
Negotiating a property settlement can be stressful and complicated. Hence, you might consider engaging a lawyer to assist in negotiations with your former partner. Even if you choose not to use a lawyer for the negotiation process, it’s crucial to seek legal advice before signing any agreement. Importantly, this advice should come from a lawyer who hasn’t previously advised your ex-partner.
Ideally, both parties should aim to reach an agreement about the division of property. This agreement can then be formalised into a court order, known as a consent order, which must be adhered to. Another option for a legally enforceable and binding agreement is to enter into a Binding Financial Agreement.
If an agreement cannot be reached, you have the option to apply to the court for property orders, which will dictate how the property should be divided.
Before applying to the court, certain pre-action procedures must be undertaken. Family dispute resolution services are available to help you reach an agreement. Family Relationship Centres might also offer assistance, particularly in cases where children are involved, though they are unable to provide legal advice. We often refer clients to private mediators, and work with a number of highly respected mediators in our field.
For any financial difficulties arising during this process, a financial planner or a financial counsellor can offer guidance. Don’t hesitate to seek professional advice to ensure your rights and interests are well protected.
Can A Property Settlement Agreement Be Changed?
Once lodged with the court, property settlement agreements via Consent Orders can be altered in only defined ways, unless both parties agree to the changes. Please note that even if you both consent, the court will not enact an order unless deemed ‘just and equitable’, essentially meaning appropriate for both parties.
For advice on varying or amending Consent Orders when there is no agreement to do so, contact us to discuss whether you may have grounds and any options.
How To Calculate Property Settlement
The Family Law Act essentially prescribes a four-step procedure to calculate property settlement in divorce, after it is established that it would be just and equitable to have a property settlement. Let’s break down these steps.
Step 1: Identification and valuation
The first step involves identifying and valuing all the property from the relationship or marriage, which also includes debts. It’s important to remember that this includes not just property and assets acquired during the relationship, but also those obtained before or after the marriage (or relationship).
Step 2: Consideration of contributions
The second step is to consider what each person has contributed to the relationship. These contributions could take various forms:
- Earnings from employment or businesses
- Savings accumulated during the relationship
- Gifts and inheritances received
- Property owned before the relationship began
- Improvements made to any property
- Contributions as a homemaker and parent
All these contributions, among others, can be taken into account to ascertain both parties’ entitlements.
Step 3: Future needs factors
The third step involves considering other factors outlined in the law, such as:
- Each person’s future earning capacity
- Age and health of each person
- Care and financial support for children
- Responsibility for looking after other people
- The length of the relationship
It’s important to note that the law does not consider who left the relationship when deciding what a fair division of property is. It aims to ensure the division is just and equitable, given the totality of the circumstances. A party’s conduct rarely has relevance in property settlement matters, but this can occur in certain circumstances.
Step 4: Court’s decision
Finally, the court will decide the exact division of the property. The court’s main concern is essentially ensuring that the division of property is just and equitable in all circumstances. This means that the court will look at all the information presented, apply the law, and make a decision that it considers appropriate.
Remember, while these steps provide a general framework, the exact process can vary depending on the specific details of each case. It’s highly recommended to seek expert legal advice to ensure your rights and interests are properly represented and protected in a property settlement.
Divorce property settlement example
Consider a divorce scenario involving Alex and Jamie where they have attended a mediation and reached an agreement on how to divide their property.
We’ll simplify the 4-step property settlement process to help illustrate how they came to their agreement and what the outcome was.
Step 1: Asset identification
Alex and Jamie’s financial picture is as follows:
Assets:
- Savings: AUD $50,000
- Shared home: AUD $1,000,000
- Alex’s car: AUD $20,000
- Other assets: AUD $10,000
- Total: AUD $1,080,000
Liabilities:
- Outstanding mortgage: AUD $150,000
- Total: AUD $150,000
Superannuation:
- Alex: AUD $80,000
- Jamie: AUD $70,000
- Total: AUD $150,000
Given these figures, the net value of the couple’s combined assets is calculated as follows:
Assets – Liabilities + Superannuation = Net Asset Pool
$1,080,000 – $150,000 + $150,000 = $1,080,000
Alex and Jamie have total net assets amounting to $1,080,000. We call this “the property pool” or “the matrimonial property pool” for example.
Step 2: Evaluate contributions
Next, the contributions each party has made to the relationship, both financial and non-financial, need to be evaluated.
Neither Alex nor Jamie owned any property prior to marriage. While their superannuation holdings are different, their earnings have been relatively similar. Therefore, their financial contributions may be considered around equal. However, Jamie, who has taken on the role of primary caregiver for their two children, has contributed more in the sphere of homemaker and parenting. Recognising this, they agree that Jamie should receive an additional 2.5% in the final division on the contributions step.
Step 3: Assess future needs
With two children who still need care, an adjustment in favour of the primary carer is warranted.
While Alex will be involved in the children’s lives, the parties agree that Jamie, as the primary carer, will receive an additional adjustment of 2.5%.
Step 4: Justice and equity
The parties agree to consent orders that have the effect of both of them retaining super, selling the home and both Jamie and Alex receiving a sum of money (in addition to the other items they each own). See more on this below.
The proposed settlement is arguably just and equitable, given they will each retain super of fairly similar amounts and cash to move forward.
The outcome
After taking into account the entire process, Alex is allocated 45% of the net assets, and Jamie is allocated 55%. This was achieved by agreement.
Jamie and Alex have agreed that there will be no superannuation splitting. They will each retain their respective superannuation entitlements as part of property settlement.
They expect to receive approximately $820,000 once the house is sold and all sale-related costs (including marketing costs) are paid. When you take out the sale costs, the total net pool comes down to $1,050,000 in total.
Therefore, the effect of the settlement is that Jamie will receive $577,500 (55% of $1,050,000), and Alex will receive AUD $472,500 (45% of $1,050,000).
It is agreed that Jamie will keep the cash savings of $50,000, other assets of $10,000 and her super of $70,000. To achieve a property settlement split of 60% overall on these figures, Jamie needs to receive the sum of $447,500 from the house sale. Her overall property settlement entitlement is then as follows:
$50,000
+ $10,000
+ $447,500
+ $70,000
577,500 (55%)
It is then agreed that Alex will keep his car worth $20,000 and his super of $80,000. Alex will receive the rest of the net sale proceeds, totalling $372,500. His overall property settlement entitlement is then as follows:
$20,000
+$80,000
+$372,500
$472,500 (45%)
The above is an example of how the property settlement process can be stepped out, showing you a global approach to dividing property after the breakdown of a marriage. The above does not constitute legal advice. Every situation and circumstances are different, and entitlements can vary. Expert advice is needed to ascertain what is best for you, and how best to achieve your goals.
Daykin Family Law can help you with your property settlement
Here at Daykin Family Law, we aim to guide you through property settlement and divorce, providing expert legal advice tailored to your specific situation. Remember, navigating this process effectively is key to securing your financial future post-divorce. Contact us today for professional assistance in achieving the most beneficial outcome for you.
