Ending a Relationship Archives | Page 3 of 4

Child support in Australia is calculated using a complex formula that takes into consideration the combined income of both parents, the number of children they have and the ages of the children. Even couples going through the most amicable separation or divorce can hit a bottleneck when issues of calculating child support arise.

How is child support calculated in Australia?

The concept of child support is based on the principle that parents have the obligation to provide monetary assistance for their children. This obligation continues after the breakdown of a relationship. To administer child support, parents can agree to self manage, write a child support agreement or apply to the Department of Human Services (DHS) for a child support assessment.

The information required by DHS to calculate child support includes:

The taxable income of each parent
The percentage of nights that each parent has the child with them
The number of children and ages
Information about other dependents that each parent has

Self-management of child support

Parents who choose to self-manage their child support make decisions on how much child support to pay, when to pay and how they want to pay it. If you choose to self-manage your child support, you do not need to apply for an assessment. When you and your partner self manage, you are responsible for calculating your child support amount. It is important that you keep records of child support payments if you choose this option.

You can use an online calculator to get an estimate of your child support amount here.

Child support agreement

Australian law allows parents to make a child support agreement where both parents decide on the amount of child support to be paid. There are two types of child support agreement: binding child support agreement and limited child support agreement.

To receive child support under a binding child support agreement, parents do not need to have a child support assessment in place and the child support amount agreed upon does not have to be the same as the amount that will be payable under a child support assessment. Parents who choose to make a binding child support agreement are required to seek independent legal advice for the agreement to be valid.

On the other hand, parents who make a limited child support agreement must have a child support assessment in place and the payments set out in the agreement must be equal to or more than the annual rate in the assessment. Independent legal advice is not required but is advisable for the most appropriate outcomes for your circumstance.

If you and your partner choose to make a child support agreement, it must meet the requirements of the law. For more details on the legal requirements of each type of child support agreement, read our previous article on child support here.

Child support assessment

While it is sometimes easier for parents to decide how much child support is to be paid by having a child support agreement in place, it does not always work out that way. Parents have the option of applying to the Department of Human Services for a child support assessment.

To be eligible for a child support assessment, you are required to be the legal parent or non-parent carer of the child and to meet residency rules. To determine the child support amount, parents are required to provide detailed financial information and care details along with the application for assessment. The amount of child support that you pay or receive may affect your Family Tax Benefit.

You can apply for child support assessment online. To manage your online application, you have the option of setting up an online child support self service account.

How is child support calculated?

To determine the child support amount, the DHS uses a child support assessment formula which examines the situation of both parents. There are six different formulas used for the child support assessment. These six formulas are a variation of one basic formula.

In most cases, the annual rate of child support will be assessed using formula one, the basic formula used for single child support assessments where only the parents provide care for the children and neither parent has another child support assessment case.

To determine the annual rate of child support that will be paid under formula one, these 8 steps are followed:

Step 1: The child support income of each parent is identified
Step 2: The combined child support income of each parent is calculated
Step 3: Each parent’s income percentage is calculated
Step 4: Each parent’s percentage of care is determined
Step 5: Cost percentage is determined
Step 6: Each parent’s child support percentage is calculated
Step 7: The costs of the child are determined by the parent’s income, number of children and their ages
Step 8: The annual rate of child support for the child is determined

There are other types of formulas used to determine the annual rate of child support, including in circumstances where a non-parent carer is involved.

Who pays child support?

To determine the parent who pays child support, each parent’s percentage of care of the child is weighed in relation to the share of the parent’s combined income.

Other forms of support

Child support payment is different from other forms of financial support such as spousal maintenance or property settlement. Spousal maintenance is a payment given from one spouse to another as financial support and property settlement is the division of assets and liabilities between a separated couple, whether married or de facto.

Daykin Family Law can guide you through the process of calculating your child support. Contact us today for an overview of your options and how we can help you reach a positive solution.

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) 3338 5645 to make an appointment for a fixed fee initial consultation today.

The blog published by Daykin Family Law is intended as general information only and is not legal advice on any subject matter. By viewing the blog posts, the reader understands there is no solicitor-client relationship between the reader and the blog publisher. The blog should not be used as a substitute for legal advice from a legal practitioner, and readers are urged to consult Daykin Family Law on any legal queries concerning a specific situation.

In Australia, couples need to be separated for 12 months before registering for an official divorce, meaning to apply for a divorce in the Court. Whilst separation usually comes in the form of living apart, this is not always a financially realistic option. We’ve delved into the process of proving separation whilst living together and discussed some of the reasons separated couples may find it beneficial to remain under one roof.

Reasons for remaining within the same household following separation

Separation is a challenging experience at the best of times. When you then consider the uncertain economic climate and a family’s individual financial situation, the prospect of one or both parties moving out of the family home might be a less-than-ideal, or even impossible, option.

In this instance, you and your ex-partner may both decide it beneficial to separate whilst remaining under the same roof. Especially when you consider the additional costs associated with moving home; hiring removalists, paying the new home deposit or required bond amount, and purchasing new home furniture and electronics.

Another reason to remain in your shared home may be the wellbeing and happiness of your children. Whilst there are many tools and resources available to help both parents and children adapt to life after separation, it can be beneficial, in individual cases, that a child’s routine receives minimal disruption in the initial stages of separation. Living across two households can be of particular disruption and, as such, you may decide it best to remain in the same household as your ex-partner whilst you understand the next best step forward for all parties involved, provided of course it is safe to do so.

It is important that both you and your ex-partner are on the same page about the reasons for remaining within the same household, as this reasoning will be considered by the Courts in deciding whether you have adequately satisfied the requirements of the mandatory separation period.

Proving separation despite remaining under one roof

There are a number of ways that ex-partners can prove separation, despite still living together:

Separate financials – this can extend to, for example, parties having separate bank accounts. It could also include efforts to remove each other as beneficiaries of any superannuation or life insurance. If you receive government payments (eg. Centrelink), the Court may need to be informed about any Government departments you have advised about the separation and any correspondence received from such departments about the separation
Separate sleeping arrangements – this can be evidenced through a change in sleeping arrangements, such as a party moving into a separate room
Social proof of separation – there can be evidence that your friends, family and other third parties (such as your child’s school) are aware of the separation. This may include having informed your family and friends, verbally or via written communication, of your separation, or requesting from the school that both parents receive notifications individually
Decline in performing household duties for each other – this could include a party no longer cooking meals or washing clothes for the other spouse, or other household duties being performed during the marriage are no longer performed (or performed less) after separation

A party should also inform the Court why the parties continued to live in the same home and any intent of changing the situation, including living arrangements for any child of the marriage under the same roof.

If you are unable to satisfactorily prove separation to the Court, your divorce application may proceed to a hearing, which can be a substantial additional expense.

Utilising a legal professional

Whether you are considering separation, are currently living separate but under the same roof as your ex-partner, or have undergone the 12 month separation period and are ready to file for divorce, we can assist you in understanding what evidence you will need to collate and how best to approach any application.

Equipped with this understanding, you can potentially eliminate the financial burden of one or both parties removing themselves from the family home without jeopardising a smooth and timely divorce process, if this is what both parties wish to achieve.

Keep in mind though that divorce proceedings do not finalise any parenting or property/financial matters arising from the breakdown of a marriage. Also, upon a divorce order taking effect, the parties then have 12 months to file in the Court for property settlement and/or spousal maintenance unless the Court grants leave to proceed out of time. Independent legal advice should be sought regarding these matters to ensure your interests are protected before applying for a divorce.

For specific, personalised advice, contact Shannon Daykin of Daykin Family Law for a consultation.

Understanding your obligation to pay or right to receive spousal support

It is not uncommon for couples to mutually support each other financially over the course of a de facto relationship or marriage. What you may not realise is that ex-partners may also be entitled to ongoing spousal support, with others obligated to give such support. Read on to discover the basics of spousal maintenance, how you calculate payments, and how it differs from other family law financial agreements.

Spousal maintenance, spousal support and alimony payments (as they call it in the USA)

Spousal maintenance is a payment given from one spouse to another as a means of providing financial support. It may be a periodic or a lump sum payment, as some examples. Spousal maintenance (for married parties) or maintenance (for former de facto couples) is usually paid due to a range of factors, such as care of children of the relationship under 18 years, an illness or other health condition, or other relevant factors.

This support can be ordered by the Court if it is not agreed, with varying lengths of time for such payments to be made in the case of periodic spousal maintenance/maintenance.

Spousal maintenance can often be confused with alimony, an American term not used within the Australian legal jurisdiction. However, this is essentially equivalent to spousal maintenance, maintenance, or spousal support, as some call it.

Calculating spousal maintenance

While there are many services online that will claim to calculate how much you may be entitled to, in truth, there are a number of factors involved making it difficult for any online service to be able to come to an accurate conclusion.

However, the starting point is looking at a party’s need. This can be done in reference to a party’s income less their reasonable living expenses. The second step then is to assess the other party’s capacity to pay spousal maintenance, taking into account their income and reasonable living expenses among other things, and ascertaining whether there is a surplus.

Applying for spousal maintenance

A party seeking to receive an order for spousal maintenance must apply within 12 months of a divorce order taking effect, or within 24 months of the end of a de facto relationship. Applications can be made to the Court outside of these time limits, but it can be a costly process seeking the Court’s permission to proceed out of time, and success is not guaranteed.

Spousal maintenance is not an automatic part of the separation or divorce process. If an agreement cannot be reached, the party that is requesting assistance must submit an application and then establish that they have a need for spousal maintenance.

Some of the factors that are considered by the courts, briefly referred to earlier, are:

The care of children under the age of 18 years – the parent/caregiver may be entitled to additional support for the spouse themselves
Any existing financial support agreement between parties which extends beyond the relationship’s termination
Age and health – if one party is significantly older than the other or has a medical condition
A party’s inability to obtain employment and/or access to reasonable living standards
A party’s access to other financial support, such as the pension or other government benefits
The income, additional property, and financial resources of the two parties – is one party significantly advantaged over the other?
The factors relevant to the relationship

While there is no limit to what the courts may consider in terms of a spousal maintenance application, Australia is a ‘no-fault’ jurisdiction. As such, the Courts will not factor in who ended the relationship and why.

The Court’s involvement

A Court can make orders that a party must pay spousal maintenance to the other party, with the Court most frequently ordering periodic or lump sum payments. Spousal maintenance orders can also include the transfer of property.

On a successful application, the Court will also stipulate any relevant terms and conditions, including how long the payments will last, particularly when made as part of final orders.

Other forms of support/payments

Spousal maintenance is different and separate from other forms of financial support or agreements, such as child support or property settlement. Child support payments are made in support of the child/children. Property settlement payments can be made as part of dividing assets as part of an overall property settlement following the breakdown of a marriage or de facto relationship.

Daykin Family Law can guide you through the process of applying for or contesting an application for spousal maintenance. Contact us today for an overview of your options and how we can help you reach a positive solution.

There are many misconceptions surrounding de facto relationships and a large portion of individuals and couples are not aware of the relevant legal implications and obligations. After handling countless de facto cases in which parties were simply unaware of the legal realities, we’ve summarised what a de facto relationship means in legal terms, and how that legal status will come into play during a relationship breakdown.

What is a defacto relationship?

Legally, a de facto relationship exists when:

1) you are not legally married,

2) you are not related and

3) there is a relationship where you are living together on what is considered a ‘genuine domestic basis’.

The genuineness of your domestic relationship is determined by numerous factors, including:

the relationship duration
whether you lived together
whether the relationship was sexual in nature
the degree to which finances were shared
ownership of any shared property
the existence of a mutual commitment
the shared care and support of children.

A court will consider the individual and unique circumstances of a relationship in coming to a finding, and your relationship may be found to be de facto even if you don’t meet all of the above-listed criteria. For example, while living arrangements are a major factor in determining a relationship status, there have been instances in which couples who lived apart, perhaps due to work commitments, were still found to be in a de facto relationship. There have also been other cases where a de facto relationship was found by the court to exist whilst a person was married to another person.

Common misconceptions about defacto relationships

Most people believe that family law applies only to legally married partnerships when in reality, de facto couples face almost identical legal rights and responsibilities as their married counterparts. In the case of property settlement, agreements regarding property matters arising from the breakdown of a de facto relationship can be negotiated and recorded. Separated de facto parties can also make an application to the Family Law Courts for property adjustment orders after a de facto relationship has ended.

When a defacto relationship ends

Maintenance

Separated de facto parties can seek, and be liable for, maintenance orders if a party needs maintenance and the other party can meet such obligations. With married couples, this is referred to as ‘spousal maintenance’.

When children are involved

All children are protected under the Family Law Act, regardless of the nature of their parent’s relationship. The Act outlines parental responsibilities and applies to children of a marital or de facto relationship.

Other things to note

The de facto status of a same-sex relationship is defined using the same legal criteria as that of heterosexual couples. Same-sex couples defined by the court as de facto are provided with the same legal rights and have the same legal rights and obligations as same-sex de facto couples.

As mentioned above, an individual can be in several de facto relationships simultaneously and a married individual can be found to also be within a de facto relationship with someone other than their marital spouse.

Protecting yourself before or during a de facto relationship

Many know about ‘prenup’ agreements and how they can protect people entering a marriage.

Those entering a de facto relationship can also enter into similar agreements regarding how property will be dealt with, among other things, after the breakdown of a de facto relationship. Other such agreements can be made during a de facto relationship and can be used after a de facto relationship has ended to record a property settlement and deal with maintenance. These agreements are known as Binding Financial Agreements.

Need help navigating a de facto separation? Shannon Daykin, director of Daykin Family Law, can assist in achieving a positive and quick solution. Contact Daykin Family Law today.

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

The procedures and requirements set out by the family law courts in Australia

As with most legal processes, divorce in Australia requires you to follow strict procedures and timelines. Whilst you may separate from your partner at any time, divorce is a lengthier process which will require the court’s involvement.

Fortunately, Australian divorce law is a fairly simplified process when compared to the legalities of other countries. However, there are still procedures which must be adhered to. In this blog, we discuss the timeline affiliated with divorce in Australia and provide tips for the most streamlined and time-efficient divorce experience.

The timeline

Australia has a ‘no-fault’ jurisdiction, meaning that a court does not consider which partner was at fault in the marriage breakdown. The only ground for divorce is the irretrievable breakdown of the relationship, which is demonstrated by 12 months of separation. Even so, you should expect the divorce process to take a minimum of four months from when you file for divorce and when the divorce order is issued by the court.

A divorce order will arrive one month and one day after a successful divorce hearing. For example, if your divorce hearing was on June 1st, your divorce order would issue on July 2nd.

You should not make plans to remarry until after you have received the divorce order from the court. Remarrying prior to receiving this order is an offence in Queensland known as bigamy, punishable by imprisonment, and your new marriage can be declared void.

Before filing for divorce

It’s important to note that you must be separated for 12 months prior to filing for divorce. Australian Family Law recognises ‘separation under the one roof’, in which you and your partner separate but remain living together. In this instance, you will need to prove that you were separated during this time. A Family Law Specialist can assist in this process.

If you separate and come back together for a period of fewer than three months, you must simply prove that you were separated for a total of 12 months. For example, if you separated on 1 January 2020, reconciled on 1 June 2020, but then separated again on August 1st 2020, then you would be eligible to file for divorce on 2 March 2021; a total of 12 months separated. If you separate and come back together for a period longer than three months, the time resets.

The application process

Following the 12-month separation period, you can file for divorce yourself or jointly with your spouse. If you apply yourself, not jointly, then your spouse will need to be served with the divorce court documents. This can take time, particularly if you are unaware of your spouse’s location.

A joint application is easier as neither party have to be served with the court documents. If you and your partner are in agreement regarding the divorce and are still in contact, filing a joint application can assist in streamlining the divorce process as you will not have to wait for your spouse to be served

In setting a date for the court hearing, the court will consider whether it was an individual or joint application and therefore whether they need to allow time for one party to be served with court documents.

Divorce documents can be served via the post, through a legal service or in person. You yourself cannot serve your spouse in person, but any other person over the age of 18 can do so. This may be a friend or family member, if not a professional process server.

Employing a professional process server may reduce the time required to fulfil this step and they will usually complete an Affidavit of Service for filing, however, do consider that there will be fees involved in this process.

Married less than two years?

Keep in mind, if you have been married for less than two years, there are additional steps that precede filing for a divorce order. You will need to obtain a Counselling Certificate, which proves to the court that you have received professional counselling and considered reconciliation, or only one party attended such counselling and the was invited to attend but did not.

Engaging an Accredited Family Law Specialist will ensure that all the necessary procedures are followed correctly and accurately in the lead up to your divorce hearing, lowering the possibilities of the court adjourning the hearing to a later date which can delay the divorce order being made.

Ensure your divorce is as streamlined as possible – enlist the professionals. Shannon Daykin, Daykin Family Law’s Director, is an Accredited Family Law Specialist, with a wealth of experience and expertise in property settlement, parenting agreements and all other aspects of family law.

Successful co-parenting with your former partner can be tricky to achieve and may involve a period of negotiation and compromise before finding an agreeable solution. In some cases, you may not achieve a mutually agreeable solution on your own and in this instance, there are several options available to protect what matters most; the wellbeing of your shared child or children.

It is common during separation and divorce for the separating parties to harbour negative emotions towards each other. These feelings can make agreeing on terms of the separation, particularly the care of your shared child/ren, difficult or sometimes impossible.

What is a parenting plan?

A parenting plan is a written agreement which outlines how you and your former partner will co-parent your shared child/ren. It can detail a range of things, such as where the child/ren will live, where they will go to school, which parent will provide care and when, what will happen on special holidays and birthdays and how a child will communicate with their parents. The plan can also detail agreed-upon parenting styles, a particular faith/religion that will be taught at home and any required healthcare plan specific to the child/ren.

A mutually agreed-upon plan can provide structure and routine to a child/ren’s life during what can be a volatile, emotional and distressing time.

Remember, circumstances change and so to can the plan. As children age, their needs and preferences change, so keep communication with your former partner open so that the plan can be revised in future. If needed, set a date to review the plan with your partner so that you can both feel assured that it is always the best solution for your child/ren.

The Family Courts

The Family Law Courts can hand down an order which dictates what parenting arrangements will be in place for a child until they turn 18. While for some, enlisting the Court’s help is the only option for achieving a resolution, it should only be considered a final resort. Receiving a decision from the Court is not only a costly exercise which can be drawn out over a long period of time, but the final order can also feel impersonal for your family, as it is a legal directive, rather than an arrangement that your family have devised together. You give over control to the Court, which is unsuitable for many families.

Before turning to the Courts, there are several support resources available to families.

Before going to court

A family report, prepared by an unbiased third-party professional, assesses the family dynamics, a child/ren’s wishes and their needs to create a recommended parenting arrangement. This report can also be submitted as evidence to a Court if the situation demands a Court decision.

A family dispute resolution mediator can also act as an unbiased voice of reason between yourself and your former partner. Unlike the Court, a mediator will work with all affected parties to determine the best solution, rather than handing down a legal directive.

Utilising a mediation professional is also an opportunity for both parents to discuss their wishes and concerns regarding their child/ren’s relationship with their other parent and the future, without needing to converse directly with their former partner, which could potentially start an emotionally-fuelled argument.

The most important thing

No matter which solution you turn to, it is important to remember that your main concern should always be the health and happiness of your child/ren. During a separation or divorce, when emotions are running high, parents can often fall into the trap of letting their negative emotions towards their former partner restrict the possibility of reaching a solution which is best suited for the child/ren.

It is important that children feel loved, supported and safe as the family transitions after separation. Never argue with or speak negatively of your former partner in front of the child/ren. While you should keep communication with your child/ren open and encourage them to discuss their feelings openly with you, never ask them to pick sides or make a final decision regarding their living arrangements.

Whilst family and friends may give you advice and mean well, it should not replace the sound and pragmatic advice of a family law specialist. The danger with this is that the legal system is complex and how you conduct yourself is important. A wrong turn with how to handle certain important situations can be disastrous, not only for the objectives you want to achieve but could also have a negative impact on your children. We guide clients through post-separation issues by being upfront about the things that might cause unnecessary dispute. Similarly, we provide clear advice when needed on when a firm approach is needed to protect what matters most.

Shannon Daykin, Daykin Family Law’s Director, is an Accredited Family Law Specialist, with a wealth of experience and expertise in family law and parenting agreements. Contact us today to discuss all your options in order to achieve a positive solution as efficiently as possible.

Property settlement can be a substantial part of separation and divorce. Whilst valuing tangible property such as homes and cars is relatively straightforward, valuing a business is usually more complex. One of the first questions we are asked by self-employed clients is what impact a separation may have on their business. This is a valid worry – you’ve spent years building a business, only to find suddenly your livelihood may be at risk or operations may be impacted by a separation. We’ll take a look at business valuations in a property settlement in this article, outlining some of the key considerations and next steps.

Reaching an agreement

Whether the business in question is your former partner’s, yours or jointly operated by you both, it’s important that you and your former partner seek to agree on a value together and ascertain any issues in dispute that are a roadblock to an agreement. The party who wants to keep the business could undervalue the business or claim that they alone create the value of the business; particularly relevant when an individual’s specific expertise or skill set is the main offering to customers, for example, an interior designer.

We often recommend calling upon a trusted accountant, who is aware of the business position and its history, potential tax consequences of any proposed settlement and issues to be considered for asset protection. A familiar third party can often play a positive role in achieving a settlement sooner and potentially avoid the cost of an independent valuation in some cases.

You can engage an expert, third-party forensic account with experience in business valuation within family law cases including those in court proceedings. Any professional involved in the valuation process must be willing and able to present their professional findings in court. How you engage this expert is important. If not engaged properly, the evidence from the expert may be subject to challenge later on if an agreement can’t be reached.

Generally speaking, one valuer will provide a final ruling on the business’ value. You may request to use a separate valuer to that of your partner, but you must present a strong argument as to why the court should accept this evidence.

Engaging a secondary valuer can be costly and time-consuming, so the best outcome would be an agreed approach between both parties. Ordinarily, the valuation cost is shared equally between parties unless one party requests additional information from the valuer which increases the cost significantly. In this instance, the two parties should negotiate the allocation of cost.

Methods of valuation

The valuer’s report will include the final valuation and how they arrived at that valuation. Businesses can be valued using a range of different methods and each method examines the business from a slightly varying perspective. A particular approach may be the most appropriate to an individual case, depending on the business set up or the industry

A fair market valuation assumes a scenario in which there is a willing buyer, a willing seller and neither party is under compulsion to buy or sell. If we imagine a family business in which you have a 20% stake and your parents hold the remaining 80%, your parents have the majority vote in decisions regarding the business. A fair market valuation assumes a willing buyer but in reality, finding an investor for a business in which your parents have full control in that scenario is unlikely. It may be that your share value is discounted. This is just one example of issues that business valuations traverse.

Any form of valuation will consider the business profits, assets and any other relevant information required to provide an accurate and unbiased final valuation. Providing any and all the relevant documentation quickly and in an organised fashion allows for a smooth and therefore cost-effective process in which an accurate result can be obtained.

Providing relevant information

In providing information, do not disregard loan accounts in which you or your former partner may owe money to the business, or the business may owe money to you or your former partner. A full analysis of realisation and other taxation costs may be crucial to the valuation and should not be overlooked. Mistakes can be made when overlooking such issues, which can have a marked impact on any settlement to a party’s detriment if not fully identified ahead of time.

Business valuations are an important part of the property settlement process, but just one part of a larger picture. When you’re dealing with the stress of a relationship breakdown, you need reassurance that you’ve got an experienced legal professional in your corner. We take a no-nonsense and pragmatic approach to advising our clients, guiding them on the path that will best achieve their goals, protect their interests and allow them to get on with the important job of running their business or home or whatever else should be taking priority.

We work with a range of top-level forensic accountants to assist our clients in identifying issues and helping them reach an early resolution to property settlement wherever possible.

Contact us today for an initial consultation with Shannon Daykin, Daykin Family Law’s Director, an Accredited Family Law Specialist with a wealth of experience and expertise in family law and complex property settlement. We’ll discuss your business, how to protect your interests and how we can assist in resolving your property settlement as efficiently as possible.

At Daykin Family Law, we work with our clients to resolve matters in a cost effective and timely manner, which usually means staying out of Court wherever possible. The Court system can be complex, costly and time consuming. In many cases, alternative methods of dispute resolution can achieve preferable outcomes, without the added stress that can arise through a Court battle.

Speaking to, and taking advice from, a lawyer does not necessarily mean going to Court. The can be a common misconception of some. Instead, getting legal advice can empower you to make educated decisions that are best for you and your family.

So, how can you avoid going to Court whilst coming to a suitable arrangement in your family law matter? Here’s a closer look at the different types of alternative dispute resolution commonly used in family law cases.

Family Dispute Resolution (FDR)

Whilst it can seem impossible at a time when emotions are running high, coming together to calmly and rationally discuss disputes is often all that is needed to ultimately resolve them. Family Dispute Resolution (FDR) can be a really effective means of increasing the chances of early resolution, so that both parties can move ahead.

If you and your former partner disagree on allocation of property, parenting issues or family matters, Family Dispute Resolution could help. FDR is a confidential process whereby someone trained in dispute resolution will help reach a consensus acceptable to both parties. The FDR process is provided by organisations such as Legal Aid and Relationships Australia and can also be facilitated by lawyers, social workers and mediation practitioners.

Lawyers can assist before and during, for example, gathering the relevant information required and negotiating in advance those matters to allow you to reach an agreement in an informed and supported manner.

Mediation

Similarly to FDR, mediation can be used to resolve property and parenting matters. The process begins with an individual, confidential session between you and the mediator to outline the issues that are most important to you, before mediation commences. Most mediation sessions are facilitated by private practitioners, including lawyers, barristers, social workers and other accredited mediators. If mediation is right for you, we can recommend a mediator that will be a good fit for your matter.

Negotiation

Depending on the scope of the dispute, negotiation can be an effective means of dispute resolution. Negotiation is particularly beneficial when the parties are unable to or uncomfortable directly engaging in discussions with each other. For example, in situations where clients have experienced domestic violence. Negotiation can occur between lawyers and/or in separate rooms, to avoid direct contact between clients.

Arbitration

The process of arbitration is where the parties choose a private arbitrator to decide how their property is to be divided or whether spousal maintenance is payable.

Both parties present their arguments and evidence to the arbitrator, who then makes a determination. Their decision (or ‘award’) is delivered within a specified period, making it a drastically quicker solution than going through the Courts. Arbitration is voluntary and can be undertaken either by the parties on agreement or by a Court order.

Collaborative Law

Collaborative Law is similar to mediation in some ways, however each party will have their own legal representative who is collaboratively trained. To reach an agreement, a series of face to face meetings are held with both parties and their lawyers, to discuss issues openly and in a non-confrontational manner. Should the parties be unable to reach an agreement and Court proceedings are necessary, the lawyers must withdraw from the case and neither can act for that client in Court. This is to ensure that all parties are committed to settling collaboratively and avoiding litigation.

Such lawyers should be specifically trained in the collaborative process to ensure they possess the necessary skills to successfully engage with all parties. To find out if collaborative practice is right for you, check out our detailed article on Collaborative Law here. Director, Shannon Daykin, is a trained Collaborative Lawyer.

If all else fails....

Should alternative dispute resolution fail for you, or litigation is necessary, for example in matters involving child safety, domestic violence or where talks fall flat, then the matter will most likely be taken to Court. Find out about the process here.

In any case, family law matters can be complex, even when both parties can communicate well and mutually agree on matters. So it’s important to get proper legal advice from the outset to ensure you reach the most desirable possible outcome for your circumstances. Daykin Family Law can assist you in creating a personalised plan unique to your situation.

Daykin Family Law’s Director and Principal Lawyer, Shannon Daykin, is a Brisbane based family lawyer is collaboratively trained, an Accredited Family Law Specialist and has a wealth of experience and expertise in family law. If you’re considering your options for resolution and would like to keep the matter as stress-free as possible, contact us today for a no obligation consultation to find out what’s right for you.

If you have separated from your partner and have care of the children from that relationship, you are, in most circumstances, able to apply for financial assistance from the other parent to contribute to the costs of raising those children, in the form of child support obligations.

Child support stems from a fundamental principle that both parents have a responsibility to provide for their children. After separation, whether married or de facto, an agreement can be reached regarding the type and level of child support that is paid from one parent to the other to make sure that a child is supported financially by both parents. Child support is an ongoing payment that is purely for the financial support of a child from that relationship.

The area of child custody can be fairly complex, particularly if parents cannot come to an amicable agreement or there are extenuating circumstances that require the intervention of the Court. In our previous blog post, you can find out in more detail how to get child custody. Today, we’ve summarised the key things we think you need to be aware of when considering your child support obligations.

How long the obligation lasts

In Australia, child support obligations continue until a child turns eighteen years of age, or to the conclusion of Year 12 if the child turns eighteen during that year of schooling. However, in order for the obligation to continue to the end of Year 12 a specific application must be made. In some circumstances, the Court can order for a parent to financially support an adult child of the relationship.

There are certain circumstances in which the obligation can be stopped early, for example:

If the child becomes self-sufficient
If the child marries or enters into a marriage-like (de facto) relationship
If the child is adopted
If the child dies

On the other hand, child support can also be extended in circumstances where, for example:

The child over 18 can’t support themselves because they are completing their secondary or tertiary education
The child over 18 has a mental or physical disability

This is called adult child maintenance. If you would like to receive child maintenance for your adult child, or you have been asked to pay adult child maintenance, you should get legal advice.

How to calculate child support

The procedure for paying and receiving child support is governed by the Child Support (Assessment) Act 1989 (Cth) and the Child Support (Registration and Collection) Act 1988 (Cth).

The actual process of assessing the amount of child support can be quite complex, but in general terms it involves the use of an 8 step formula;

work out each parent’s child support income
work out the parents’ combined income
work out each parent’s income percentage
work out each parent’s percentage of care
work out each parent’s cost percentage
work out each parent’s child support percentage
work out the costs of children
work out the child support amount

In practical terms, the simplest way to work out your potential child support contribution or what you are likely to receive is to use the Department of Human Services Child Support Estimator. The estimator takes you through each step and provides a calculation based on your individual circumstances.

How to pay or receive child support

There are various ways in which you can organise and manage your child support payments. This will depend on your individual circumstances as well as how able you are to communicate with your ex-partner.

Child support can be paid:

Through the Child Support Agency periodically
Privately following an assessment
Directly between the parents (self-managed)

If you and the other parent are not able to communicate effectively, it may be advisable to organise your child support payments though the Child Support Agency by opting for the ‘Child Support Collect’ method.

You are able to change to another arrangement at a later date if you find you need to, however the parent receiving the child support must agree to the change in payment method.

If either the payer or payee are living abroad, child support payments may still apply. If this is the case, you should seek legal advice.

What happens if your child support matter goes to Court

There are limited circumstances where child support arrangements go to Court. Most child support disputes are handled outside of the Court. However, some examples where a case may go to court are:

where the paternity of the child is in dispute;
if you have property or parenting proceedings underway and you need to dispute an assessment which does not take into account a parent’s proper circumstances;
if you are in proceedings for property or parenting matters and you want to halt any assessment process pending the outcome;
to set aside or vary a child support agreement where the other parent won’t agree to stop or change the arrangements set out in the agreement.

Compiling the correct documentation, serving other parties and the ensuing evidence gathering and subsequent hearing can be complex. It is vital in these circumstances that you seek independent legal advice from a family law specialist.

Daykin Family Law have offices in Brisbane and are highly experienced in navigating the complex area of Child Custody. Director, Shannon Daykin, was named in the prestigious Doyle’s Guide for 2019 in the Leading Family & Divorce Lawyers list (Recommended) and Leading Parenting & Children’s Matters Lawyers list (Recommended).

Daykin Family Law was also named as Recommended in the Leading Family & Divorce Law Firm list.

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

If you have just separated or are likely to, it is important you get advice about what will happen with custody of the children.

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

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

What is child custody?

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

What is the legal process for getting child custody?

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

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

What is the legal process for getting child custody?

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

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

The latter is always deemed the priority of the two primary considerations. There are a host of other additional considerations that may include;

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

Should I go to court for child custody?

It is most often the case that parenting arrangements can be made without the intervention of the Courts. Most lawyers would recommend finding alternative ways to finding a resolution, for example mediation. By appointing an experienced family lawyer and taking a proactive approach to litigation, it is very possible to avoid the Court or leave the court system sooner, allowing you to move on and raise your children.

We pride ourselves on only a very small percentage of our matters making it to a final hearing in the court because the advice we give is pragmatic and we explore all opportunities available to settle your matter without the high cost associated with litigation to the end.

If you are seeking court intervention, ask yourself the following;

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

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

What is the process for getting a court order?

You must demonstrate that you have tried alternative methods of dispute resolution prior to filing an application with the courts, unless your situation is urgent or another exemption applies (for example it involves family violence or child abuse). It is imperative to get advice from your solicitor prior to taking any action.

If you are unable to reach an agreement, documents need to be filed with the Federal Circuit Court of Australia, including the initiating application, affidavit(s), mediation certificate, notice of risk and the court filing fee. In some cases, an application may need to be filed with the Family Court of Australia. It is really important to seek advice from a family law expert if you are considering going down this path. We can guide you through the parenting arrangements process, avoiding litigation where possible and ensuring you can the best outcome for your children and family. If Court is the only option, then we can guide you through the litigation process.

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

Firstly, it depends how the parenting arrangement is recorded. If you have a court order and want to vary it, you may need to satisfy the Court that there has been a significant change in circumstances, which requires expert family law advice.

The above gives you just a snapshot of some of the complex factors involved when considering child custody. It is possible to avoid Court and come to a resolution that suits both parties, particularly with the support of a friendly, understanding and compassionate family lawyer. At Daykin Family Law, we’ve worked with hundreds of parents to come a resolution in the best interests of their children.

We have developed close relationships with psychologists and social workers who also act as experts in the Family Law Courts and can help you and your family stay out of the Court system wherever possible. If Court is the only option, we can discuss with you ways to keep your legal costs down and work with you to achieve the result you desire.

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) 3338 5645 to make an appointment for a fixed fee initial consultation today.