Divorce and Separation Archives

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

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

Impact on Retirement

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

Is Super Split 50/50 in a Divorce?

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

Factors Considered in Division

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

Super Division Example Scenarios

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

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

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

Legal Framework

Superannuation Splitting Order

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

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

Consent Orders

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

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

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

Steps to Take When Dividing Superannuation

Valuing Superannuation

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

Seeking Financial Advice

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

Legal Representation

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

How Daykin Family Law Can Help

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

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

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

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

Factors That Influence the Duration of a Divorce

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

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

Divorce is usually granted in two steps:

Step 1: Court order

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

Step 2: Finalising the Divorce

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

Common Delays in the Divorce Process

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

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

The Process and Timeline of Separation and Divorce Proceedings in Australia

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

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

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

How Long Does Property Settlement Take?

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

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

Find out more about property settlement after divorce.

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

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

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

Our Divorce Lawyers Can Help You Through This Process

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

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

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.

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.

What Is Child Support?

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.

How to Apply for Child Support

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.

How Much Will You Pay?

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.

Is Child Support Taxable Income?

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.

When Do The Payments End?

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.

Can I reach a private agreement on child support?

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.

Choose Daykin Family Law – Your Trusted Child Support Lawyers in Brisbane

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.

IIn this article, we cover everything you need to know in regard to how to get a divorce in Australia.

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.

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.

1. Which Divorce Application Should I File?

There are two primary types of divorce applications:

Sole Application

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.

Joint 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.

2. Check Your Eligibility For Divorce Application

When looking at how get a divorce in Australia, you must first ensure you are eligible and meet the following requirements.

(a). Be A Resident Or Citizen Of Australia

To be eligible for divorce in Australia you must either

have Australian citizenship, or
be lawfully present in Australia for at least the last 12 months and intend to continue living here.

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.

(b). Your Marriage Must Have Broken Down Irretrievably

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.

(c). You Must Have Been Separated For At Least 12 Months And 1 Day

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.

(d). You’ll Need Your Marriage Certificate

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.

3. Applying For Divorce

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.

4. Getting Legal Advice From Experts

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.

Question: Can I travel with my children after separation?

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.

Question: What notice and information do I need to provide to the other parent before we travel?

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.

Question: How do I get a passport for my children?

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.

Question: What happens if the parents are unable to reach an agreement about travel?

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.

Question: I am concerned that my partner will remove the children from Australia without my consent. What can I do?

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:

A court has issued an Order limiting or preventing the children’s travel;
A Court has issued an Injunction limiting or preventing the children’s travel;
There is an application before the Court seeking to limit or prevent overseas travel of the children;
There is an application before the Court seeking an Order to place the children on the Family Law Watchlist; and/or
An Order or Injunction is limiting or restricting the children’s travel overseas which is under an appeal.

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.

Question:
Can I travel with my children if their names are on the Airport Watch List but both parents agree for the children to travel?

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

Question: My former partner has taken our children overseas without my consent. What can I do?

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.