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.
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.
When looking at collaborative law as defined by the Australian Institute of Family Studies, there are a few core values that can be identified.
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.
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.
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.
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.
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.
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.
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:
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.
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.
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.
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.
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.
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 Queensland Government stated that the offence of coercive control will carry a maximum sentence of 14 years in in prison, and criminalises the actions of an adult under the following conditions:
At this stage the new coercive control laws won’t come into effect until 2025, but this Bill still represents a significant step forward in addressing domestic violence in the state.
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 wellbeing.
Find out more about the signs of coercive control and what to do when you spot them.
This law arises from the first report released by the 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 in regard to their experiences with coercive control.
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 towards 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 there were officers and teams 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 the new laws criminalising coercive control.
On top of the new legislation criminalising coercive control, the Queensland Government has stated there will be:
On top of this the 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, that is split into two volumes: volume one and volume 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.
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.
If you or someone you know is being subjected to a situation of coercive control, it’s crucial to 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:
Please remember, 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.
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:
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.
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.
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.
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:
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.
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.
Assets that you’ll need to consider when dividing assets in a divorce include (but are not limited to):
Alongside assets, you also need to consider liabilities during divorce, for example:
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.
There are a few common methods used to split assets during a divorce in Australia, including.
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.
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:
Now, let’s look at a specific example.
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.
If you’re facing a divorce in Brisbane or Wider Queensland and are unsure about the division of assets, 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.
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.
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.
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.
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:
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:
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.
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:
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.
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:
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:
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.
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.
Under the emotionally trying circumstances of separation and divorce, you may find yourself wondering ‘How does child support work?’. Whether you are a parent who wants to understand more about child support or someone who has received a child support assessment to pay child support to someone else, understanding how child support works is essential.
In this article, we will delve into the details of child support including what it is, how it is calculated, and other important information.
At Daykin Family Law, we guide you through the maze of child support and into your bright, new future. We are your trusted advisors in one of the most difficult times in your life. You can rely on our team of dependable, expert family lawyers to provide clear direction and steps toward meeting your goals. Contact us today to find out how we can help.
Child support is when one or both parents provide financial support to the other or a caregiver to cover the expenses related to caring for a child or children. In some cases, child support may be paid to a person other than the parents who is taking care of the children.
To determine the appropriate amount of child support, parents can either come to an agreement or seek an administrative assessment from the Department of Human Services (Child Support), or there can be a combination of the two. If a dispute arises regarding child support, it is recommended to seek legal advice – and if you need help, contact Daykin Family Law today.
To apply for Child Support by way of an assessment through the Australian Government, the simplest method is to do it online, using the Government’s Child Support Applications Service. Once you have submitted your application, it will be reviewed and you will be informed of the result.
After your application has been reviewed, you can set up self-service and handle your child support online. Before you begin the application, ensure that you meet the Eligibility Criteria. If you or the other parent resides outside Australia, you may need to apply to that country’s child support authority.
If you are afraid of negative consequences from requesting child support, you have lots of options. You can speak to a support worker through the Centrelink employment services line or visit the 1800RESPECT website for assistance, alternatively, seek legal advice and contact us today.
To establish a self-service account, you can go to the Government’s Child Support self-service page and set up a myGov account if you don’t already have one then log in to your MyGov account and select Child Support online account.
If you are unable to apply online, you can contact the Child Support Enquiry Line. If you wish to withdraw your application, you may do so before a decision has been made. You and the other parent will be notified of the outcome, as well as the amount and start date of the payments if an assessment is made.
It is generally understood that both parents share the expenses for their children, and this is determined by Child Support (Services Australia) based on the combined income of both parents and other factors. You can see how much you might have to pay, or you might receive, by using Services Australia’s online Child Support Estimator. Before making the calculation, a “self-support amount” is subtracted from each parent’s income. The parent with the higher income is generally required to pay a larger portion of the children’s costs, depending on the relevant care arrangements.
The good news is that received child support is generally not part of taxable income, and, when you pay child support, you might also be eligible for Family Tax Benefit Part A.
In order to be eligible, you must provide care for your children at least 35% of the time, you may also need to demonstrate to Centrelink that you have requested a child support assessment from the other parent unless special circumstances are present. It may be necessary to discuss this with your Centrelink social worker.
Parents who receive Family Tax Benefit Part A at a rate higher than the base amount are generally required by Centrelink to apply for a child support assessment. The amount of time you spend caring for your children, including both daytime and overnight care, will be considered by Centrelink when calculating your Family Tax Benefit Part A.
In addition, your annual household income, including the income of any new partners, as well as child support payments for each child, can impact your eligibility for Family Tax Benefit Part A.
On top of this, it can be important to file your tax returns annually because Child Support (Services Australia) and the Australian Taxation Office exchange information. If you are late in filing your tax return, your child support assessment for previous years may be affected, resulting in overpayment or underpayment of child support, which could cause financial difficulties. You may wish to seek advice from your accountant regarding these issues.
Typically, child support payments continue until the child reaches 18 years of age. However, there are certain circumstances under which the payments may cease earlier, such as if the child becomes self-sufficient, gets married or enters into a de facto or marriage-like relationship, is adopted, or passes away. In some cases, child support may be payable for a child over 18 years old.
Yes, you absolutely can. Contact us today to talk about your other options, such as a Limited Child Support Agreement or a Binding Child Support Agreement. We have other articles for you to read on such avenues.
Understanding how child support works is essential for parents to ensure that their children receive the necessary financial and emotional support they need to thrive.
At Daykin Family Law, we recognise the importance of this process and the impact it can have on your family’s future. That is why we are here to guide you through the maze of child support and into your bright, new future.
Our team of expert family lawyers in Brisbane is ready to provide you with the support and direction you need to meet your goals and protect your children’s best interests. Whether you need assistance in reaching a child support agreement, seeking administrative assessment, or resolving a dispute, we are your trusted advisors.
Contact us today to find out how we can help you navigate this challenging time and secure your family’s future.
In this article, we cover everything you need to know in regard to how to get a divorce in Australia.
Making the decision to get divorced can be incredibly difficult. It can involve a lot of emotional turmoil, as everyone involved is grappling with feelings of sadness, guilt, and uncertainty about their future.
The complexity of the decision can also be compounded by the presence of children, financial concerns, and the need to untangle shared assets and debts. Furthermore, the perceived societal stigma attached to divorce can make it even harder for individuals to come to terms with the decision and move forward with the process.
Ultimately, the decision to divorce is a deeply personal one and should be made after careful consideration and ideally with the support of loved ones and professionals such as counsellors, as well as family lawyers like Daykin Family Law.
At Daykin Family Law, we guide you through the maze of divorce & separation and into your bright, new future. We are your trusted advisors in one of the most difficult times in your life. You can rely on our team of dependable, expert family lawyers to provide clear direction and steps towards meeting your goals. Contact us today to find out how we can help.
There are two primary types of divorce applications:
The first type of divorce application is a sole application – as the name implies, this is when one party files for divorce without the other.
If you choose to pursue a sole application, you will be referred to as the applicant and the other party will be known as the respondent. Only the applicant must sign the application, the respondent does not need to. As the applicant, you will be responsible for serving the application on the respondent.
If you have children under the age of 18, you will need to appear in court in order to process a sole application.
A joint application is when both parties decide to file for divorce together.
When filing a joint application, both parties are referred to as joint applicants. One party will generally complete the application and provide a copy for the other party to review and sign. When filing electronically, you will have the option to print the document and provide a copy to the other party for review. If you file a joint application, there is no need to serve documents on the other party.
You do not need to appear in court if you file a joint application.
When looking at how get a divorce in Australia, you must first ensure you are eligible and meet the following requirements.
To be eligible for divorce in Australia you must either
If you fall under the latter category, you will generally need to provide evidence, such as your passport and a valid or current visa, to prove that you have been living in Australia for at least one year.
In Australia, you can only apply for divorce if your relationship has broken down irretrievably.
You must be able to prove that the marriage has broken down, which can be done by providing evidence of the separation, such as a separation agreement or evidence of living apart.
Additionally, it is essential to note that the court must be satisfied that there is no reasonable likelihood of reconciliation between the parties. This means that at least one spouse must regard the marriage as over on the date of separation (and in some way communicated this to the other spouse) and there is no chance of getting back together.
To be eligible for a divorce in Australia, you must have been separated from your partner for at least 12 months and 1 day. Even if you are still living in the same home as your partner, you may still be considered separated, as long as you have been living separately for that time.
If you were married in Australia, you must provide a valid marriage certificate. This certificate can be obtained from the Registry of Births, Deaths and Marriages in your state or territory, or you can use the ceremonial certificate issued at the time of the marriage. If you do not have a marriage certificate, you should contact the Registry of Births Deaths and Marriages in your state or territory to obtain a copy.
If you were married overseas and your marriage certificate is not in English, you will need to have the certificate translated by a NAATI-certified translator and attach both the original certificate and translated document to an Affidavit of Translation of Marriage Certificate. NAATI maintains a directory of certified translators and interpreters. If you are unable to obtain a marriage certificate from overseas, you must provide an affidavit outlining the details of the marriage and the reasons why you are unable to provide the certificate.
The easiest way to apply for a divorce is electronically using the Federal Circuit and Family Law Court of Australia’s online system.
You can submit it electronically through the Commonwealth Courts Portal, which offers secure access to your court file, the ability to file documents electronically, and access to court orders at all times. If you need more info check out the how to apply for divorce PDF from the FCFCOA.
Daykin Family Law is a reputable and experienced family law firm located in Brisbane. We specialise in handling divorce cases and have a team of experienced lawyers that are knowledgeable in all laws and procedures surrounding divorce.
We can provide legal guidance and representation throughout the entire divorce process, from filing for divorce to finalising the settlement. We can also help with issues related to child custody, property division, and spousal support. Contact us today for assistance with your divorce to ensure the process goes as smoothly and efficiently as possible.
This is one of the first questions we are often asked by our business owner clients. You spend years building an empire, whether it be large or small, and you are understandably anxious about how separation will impact on what you’ve built and what the future holds.
The first step is to ensure that there can be no immediate impact on the running of your business. Any fallout from the inter-personal relationship with your former partner or spouse must be managed so that it does not impede its operational running or damage its reputation. We assess the risks with you as some urgent matters may need to be attended to, particularly if your ex has access to business accounts, important documents or the premises or staff generally.
In more severe cases where attempts to curtail damaging behaviour have been exhausted, or urgent and swift action is required, there a range of remedies available from the court. This can include restraining a person from taking certain steps which may cause loss to you or the business. In our experience, a firm approach from the start can assist in resolving such issues quickly without litigation. However, where harm to business operations is imminent, an application may need to be filed with the court without delay to protect your business and assets.
Once any urgent issues are identified and dealt with, attention should be focussed on crafting a settlement to finalise the financial aspects of your separation. Settling matters early can save on legal costs and the emotional strain associated with protracted negotiations or litigation.
An initial step towards this finality is making disclosure of your financial circumstances. In our experience, the quickest way to create tension, distrust and a sharp escalation in fees is to be opaque in the way someone discharges their duty to make full and frank disclosure. If an opposing lawyer deems that the other party is refusing to make disclosure or is not being forthcoming with the documents needed to advise their client, chances are they are advising on their end to file proceedings in the court to obtain an order for disclosure. This should be avoided as there are lengthy queues in the court and litigation can be costly. We will guide you on the necessary documents to disclose having regard to the nature of your entities and extent of your assets, liabilities, superannuation and financial resources.
It is often a good idea to involve your trusted accountant at an early stages if they were not already involved from the outset. We have had many initial meetings with clients and their financial advisors to gain clarity at the first meetings about what clients want to achieve and how value can be added to their affairs through restructuring as part of the family law process. It is also important to be across any potential taxation consequences of a proposed settlement, Division 7A issues, the structure itself (including trusts interests of the parties and associated issues), future asset protection and other important matters.
In some cases, the accountant is also trusted by the former spouse or partner and can play a positive role in achieving a settlement sooner, such as facilitating the efficient exchange of disclosure and even in reaching agreement on a valuation for a business to avoid the cost of an independent valuation as part of the family law process.
Coupling anxiety about what the future holds for your business with the emotional stress of a relationship breakdown itself can take a significant toll. We take a no-nonsense and pragmatic approach to advising our clients, guiding them on the path that will best achieve their goals and allow them to get on with the important job of running their business or home or whatever it is that they want to do next. Contact us today for a reduced fixed fee initial consultation with Shannon Daykin, an Accredited Family Law Specialist, to discuss your business, protecting your interests and how we can assist in resolving your property settlement as efficiently as possible.
As government restrictions resulting from the COVID-19 pandemic easing, many families are starting to resume travel. A common question that separated parents often ask is whether they can travel with their children following a separation, and if there are any restraints on travelling.
Like all families, when travelling overseas or interstate, there are certain matters that separated families need to consider. Below we address some frequently asked questions when travelling with children from separated families.
The ability to travel with your children is largely dependent on the care arrangements that are agreed between the parents. If your parenting arrangements are subject to a Parenting Plan, it might stipulate how travel will occur and what information needs to be shared. If your parenting arrangements are subject to parenting Orders, then the Orders may include provisions relating to travel such as when you are permitted to travel with your children, how long you can travel for and what type of notice and information you need to provide to the other parent. It is important to comply with any Orders in this regard to ensure that you are not contravening any Orders.
A word of caution, penalties can apply if a person travels internationally with a child whilst parenting proceedings are on foot in the Court unless it is pursuant to Orders or there is certain consent given. This also applies to situations where Parenting Orders are in place. If your parenting arrangements are not subject to parenting Orders, then it may still be important that you provide notice to the other parent of your intention to travel with the children. This will promote good co-parenting and keep the lines of communication open.
It is not uncommon for a parent to feel reluctant for their children to travel. This may be due to a variety of reasons such as concerns for their personal safety, that they may miss the chance to spend time with the children or perhaps that the children may miss school or other important events. It can be essential to address any concerns that the other parent may have so that these concerns can be alleviated.
If you want to travel with the children, you should consider providing the other parent with notice of your intention to travel if it is safe to do so. Such notice should ideally be provided well before your intended travel dates and should generally contain information such as a detailed itinerary for the planned travel, including flight times, a copy of a return flight confirmation and contact details such as an address and a telephone contact number for the children as some examples.
If there is a parenting Order or a Parenting Plan in place, then it is important that you check these documents to confirm what information you need to provide to the other parent as there may be certain requirements in this regard. It is important to contact a suitably qualified lawyer if you are unsure of your obligations pursuant to any Orders or Parenting Plan.
Typically speaking, if both parents share parental responsibility, then both parents will need to sign any and all documents necessary to facilitate the production of an Australian passport and any renewal for such passports. If there is an Order for sole parental responsibility, then the other parent may not be required to sign any documents. Again, it is important that you review any parenting Orders or Parenting Plans and seek legal advice in relation to the meaning of these Orders if you are unsure.
If the other parent is not agreeable to you travelling with the children, you can attempt family dispute resolution or mediation with respect to this issue. If you are still unable to agree, then the parent wishing to travel with the children may need to make an application to the Federal Circuit and Family Court of Australia (Division 1) or Federal Circuit and Family Court of Australia (Division 2) to determine this issue. If the Court deems that it is in the best interests of the children to travel overseas, then the Court can make an Order that the children can travel overseas without the consent of the other parent.
If you are concerned that your children may be taken overseas without your consent, you can apply to the Court to have the children placed on the Airport Watch List, otherwise known as the Family Law Watchlist. The Airport Watch List is maintained by the Australian Federal Police and is designed to prevent listed children from travelling overseas without your consent or an Order from the Court. The Airport Watchlist essentially alerts Police in the event that a person tries to remove the children from Australia. In this case, the children will be stopped at the airport and will not be allowed to leave the country. Generally, you may apply to place your children on the airport watch list in certain circumstances, including when:
If you are concerned that your children may be taken overseas, you should seek immediate legal advice. There are other measures that can also be taken.
If your children are on the Airport Watch List, then it is strongly recommended that you discuss any intended travel with a suitably quailed lawyer before you travel. This is to ensure that you are aware of any potential issues that may arise when you travel. If your children’s names are registered on the Airport Watchlist and both parents consent to the children being taken out of Australia, then you will need to remove your children’s names from the Airport Watchlist before you can travel outside of the country. This is an important step which can be overlooked and can be costly and disappointing when travel is already booked. If you wish to remove your children from the Airport Watchlist, and their names were placed on the list as a result of a court Order, you will generally require a further Order removing the children from the Airport Watchlist
In circumstances where the children have already been removed from the country without the other parent’s consent, urgent processes can be initiated for their return. This can include an urgent application under the Hague Convention when children have been taken to a country that is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. The Hague Convention is an international treaty that provides a pathway to recover children who have been abducted so that they can be returned to Australia, or their home country. Not all countries are signatories to the Hague Convention. If your child has been taken overseas without your consent, you should seek urgent expert legal advice. Any delay may impact on your chances of success.
It is important that you understand your rights and obligations if you are planning on travelling with your children. Make an appointment with Shannon Daykin, an Accredited Family Law Specialist, to discuss your circumstances and needs.
Under Rule 6.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, in all property settlement matters, both parties have a duty to provide full and frank disclosure. However, what does the term “disclosure” really mean? And what are your obligations to provide full and frank disclosure in your financial matter?
Disclosure is a process of exchanging financial documents with the other party that are relevant to your financial circumstances. The type of documents that are required to be disclosed are broad and are set out in the Rules. The documents to disclose will vary depending on the circumstances of each case and the assets and liabilities etc at play. However, each party is generally required to exchange documents evidencing all sources of income, superannuation entitlements, liabilities and any property or financial interests, including property and financial resources which are held in corporations, trusts or other similar structures. This is just some examples.
Disclosure is generally exchanged at the commencement of the property matter. However, it is important to remember that your duty of disclosure is ongoing. Therefore, you are required to continually provide disclosure documents that are in your possession, power or control throughout the duration of your matter. This is particularly important in circumstances where your financial circumstances have changed or as more information becomes available. In essence, your obligation to exchange disclosure does not cease until your matter has finished (either final agreement is reached and recorded, or final Orders are made by the Court).
When negotiating a property settlement matter, one of the first steps is to identify the property of each party and what assets are available for distribution. Disclosure and the provision of such documents assists each party with this step. In our experience, the resolution of property matters is often expedited in circumstances where both parties adhere to their duty of disclosure in the initial stages of the matter. This is because the process of disclosure allows the parties to narrow the issues that are in dispute, particularly with respect to the value of the property pool.
In the event that full and frank disclosure is not exchanged, then each party cannot be sure of the existence or value of the assets and liabilities between the parties. Ultimately, this can affect the understanding of the property pool and may result in a division of assets which is unfavourable to one party, or negotiations becoming protracted and costs increasing.
In some circumstances, a lack of disclosure can cause a matter to proceed to Court. In worst cases, a lack of disclosure can lead to an application to set aside Orders or a Binding Financial Agreement. Therefore, it is important that you comply with your duty of disclosure, so that meaningful negotiations can take place in a timely and cost-effective manner without resort to costly litigation.
It is important that each party takes their responsibility to provide full and frank disclosure seriously, as failure to comply with this duty can result in serious consequences. As mentioned above, in instances where one party refuses to provide full and frank disclosure, then the matter may proceed to Court. In the event that the matter proceeds to Court, it is most likely that the Court will make Orders for the non-complying party to produce their disclosure documents within a certain time frame. In some circumstances, the Court can also order the non-complying party to pay costs to the other party for causing undue delay to the proceedings.
If it is discovered that a party to the proceedings has failed to disclose their true financial position after final Orders have been made or a financial agreement has been entered into, then as we mention above, the other party can make an application to the Court to set aside the Orders and for new Orders to be made based on the true financial position of each party. The same can apply to a Binding Financial Agreement.
If you have recently separated from your partner or if you are experiencing a dispute in relation to property settlement, contact us today to make an appointment with Shannon Daykin, an Accredited Family Law Specialist, so that you can get advice about your situation, your options and your obligations.
Shannon was named as one of Brisbane’s Leading Family & Divorce Lawyers (Recommended) and Leading Parenting & Children’s Matters Lawyers (Leading) 2022, Brisbane, in the prestigious Doyle’s Family Law Guide, and listed in previous Guides. We offer a reduced fixed fee initial consultation, which can be conducted in person, by phone or by video conference.
We give you expert legal advice on the most appropriate and cost-effective course of action for you and your family. Contact us on (07) 3852 5490 to make an appointment for an initial consultation.