Family Law Archives | Page 2 of 3

It may come as a surprise to some that when a relationship ends, one party might still be compelled to make a lump sum or ongoing payments to support their former spouse. Even if you do not have children with your former partner, you may still be required to pay a certain amount if the necessary requirements of “Spousal Maintenance” have been met. Spousal Maintenance is completely separate to child support, but the two are often misconstrued and taken to be one and the same.

In this article, we will discuss the differences between child support payments and spousal maintenance payments and briefly explain obligations in respect of these.

What is Spousal Maintenance?

Spousal Maintenance is essentially financial support that is paid by one former partner to the other partner of a marriage or de facto relationship that has broken down in circumstances where the other party is unable to adequately support themselves. It is money which is to be used by the recipient to assist in payment of their reasonable living expenses.

You might be asking yourself, why would does financial support need to be provided to a former partner if there is no longer a relationship? In short, the law in Australia states that a person may have a responsibility to financially assist their former spouse or de facto partner if that person cannot meet their own living expenses. The duty to support and maintain each other works both ways, and this obligation may continue even after separation.

To be successful in an application for Spousal Maintenance, there are essentially two limbs that must be satisfied. Firstly, the applicant must have a need. Secondly, the respondent must have capacity to pay spousal maintenance. There are a range of factors which the Court consider when a party seeks such orders, such as the age of the parties, care of children and the parties’ income and financial resources, to name a few.

Child Support

Child Support, on the other hand, refers to the financial support by a parent specifically for their child/ren. A private arrangement for the payment of child support can be negotiated between the parties and recorded in a Binding Child Support Agreement or a Limited Child Support Agreement. For the former, both parties need independent legal advice. Such agreements can cover the payment of periodic child support (a regular amount for example) or non-periodic amounts. Non-periodic amounts can include payments towards costs such as education, medical and extra-curricular costs. Lump sum payments are also possible.

Alternatively, or in conjunction with the above, Child Support may be assessed at a particular rate by the Department of Human Services (Child Support Agency). Child Support matters are managed by Services Australia which is the entity that administers the Australian Child Support Scheme. The Family Court or Federal Circuit Court of Australia does not generally deal with Child Support matters, although it may be possible to apply to the Federal Circuit Court of Australia for a departure from a child support assessment carried out by the Child Support Agency in certain circumstances.

Time limitation for Spousal Maintenance

It is important to note that there is a time limitation for a party to make a claim for Spousal Maintenance against the other party. This date is 12 months from the date that a divorce order takes effect if you were married, and 24 months from the breakdown of your relationship if you were a de facto spouse.

Interestingly, the Court still has power to grant permission (“leave”) to a party who is making an application for spousal maintenance (married) or maintenance (de facto) even if that party is out of time. For this, the party making the application will need to demonstrate hardship.

What this means in practical terms, is that in some circumstances, it could be possible to make an application for Spousal Maintenance even after the limitation period has elapsed and/or after property settlement has been finalised.

Seek legal advice

There is no one particular way to approach matters involving Spousal Maintenance and Child Support, as it will really depend on the individual circumstances of every case. This is why it is always best to seek legal advice about your situation, obligations and entitlements, as well as tailoring the best options to your needs and the needs of your family.

Sometimes people do not realise that they may be entitled to receive payments from their former partner by way of spousal maintenance. Likewise, some people might fail to recognise the risk of there being a potential Spousal Maintenance application made against them in the future even after they finalise a property settlement. There are ways to limit potential future liability in this regard, such as entering into a Binding Financial Agreement which effectively extinguishes spousal maintenance rights for one or both parties.

Contact us today and make an appointment with Shannon Daykin, an Accredited Family Law Specialist, to discuss your circumstances and needs. Shannon was recently named as one of Brisbane’s Leading Family & Divorce Lawyers (Recommended) and Leading Parenting & Children’s Matters Lawyers (Leading) 2021, Brisbane, in the prestigious Doyle’s Family Law Guide. We offer a reduced fixed fee initial consultation, which can be conducted in person, by phone or by video conference.

We give you expert legal advice on the most appropriate and cost-effective course of action for you and your family. Contact us on (07) 3852 5490 to make an appointment for a fixed fee initial consultation today.

It’s often said that January is ‘Divorce Month’, a time where there is suddenly an influx of separations and ensuing divorce proceedings, however is this really the case? Today’s blog looks at why January has this reputation and what to do if you find yourself in this situation.

It is true that many family lawyers find themselves busier at the start of the year, with a reported spike in breakups of about 30% in January. This could be due to a myriad of factors, but may be associated with more time spent together over the festive season and the stress that can sometimes cause, for example an extended period of time spent unoccupied with work and the regular mundane distractions.

There has been reported anecdotal evidence of three main factors that contribute to the increase in separations and the onset of divorce proceedings in January, these are:

The increased time spent together during the holidays: it’s fair to say that holidays are known to be a period of switching off and spending time with loved ones. This increase in quality time can have an adverse effect when a couple is under a period of certain strain, and can often heighten the stresses and existing relationship difficulties. This time of year may exacerbate existing issues and doubts in couples and bring their problems to the surface, becoming more clear and suddenly difficult to ignore.
New year resolutions: with a new year brings new resolutions. This is often a time for self-reflection and plans for self-improvement. When a person has been dealing with stagnancy or unhappiness in their relationship, the new year can be a time for renewal and growth. This is often a purposeful time where individuals feel they can make the difficult decision to end a relationship in search for a clean break and a more positive future.
Christmas spent with the family: usually a period of time where family holds the most meaning, and usually the most amount of time. Couples with children may more likely to resist ending their relationship during this time as they do not wish to cause strain on the family dynamic and result in stress to the children. Additionally, this period results in a lack of time and resources available for couples seeking legal advice due to taking care of the children. It is because of this that parents may choose to separate in this time as they are now provided the space to make decisions without the pressure of Christmas.

This was further backed by a 2016 report by the University of Washington who conducted research from hard data on divorce filings over a 14 year period. The evidence showed a clear and consistent rise in divorce proceedings beginning in January more than any other month of the year! The researchers behind this study noted the significant impact that the above points had on this pattern.

What should I do if I’m considering getting a divorce?

When you come to the conclusion that separation is the best option for yourself and your partner, the flood of information available can be overwhelming. It can be difficult to seek out factual information, understand your legal responsibilities, grapple with the division of property and finances on top of parental arrangements. In this time of heightened stress, it is important to have someone reliable you can speak to, someone you can trust and someone who can help to support you emotionally and logistically and who can also assist you in getting the best outcome available for you and your family.

When planning the next steps of separation towards divorce, a helpful list of practical steps supported by useful information is the perfect place to start. We recently wrote a blog on the basics of divorce to assist in this exact situation, this resource can be found here: https://daykinfamilylaw.com.au/the-basics-of-divorce-applications-2/

The main things to consider when beginning the first stages of the divorce process are:

Financial and Property Settlements: one of the most important and stressful elements when it comes to divorce and the negotiation of assets among divorcees or separating couples. The levels of complexity of each of these settlements lies with each individual couple, sometimes agreements can be straightforward and made easy, other times no agreements can be reached and court action may be required. In the latter instance, it is advisable to work with a specialist family lawyer who is able to assist in the resolution of these differences. It is also important to consider other advice needed, such as financial advice and taxation advice. This is to ensure any agreement reached or orders sought are appropriate for your situation.
Parenting Arrangements: another complexity when couples begin the separation process is the responsibilities around children and how to navigate the arrangements in the best interests of the children. The principal consideration in any parenting arrangement by law is that the best interests of the child are paramount. Negotiations and agreements often focus on many factors including where the children will live and how much time each parent will spend with the children considering holidays, birthday commitments and special days. Other agreements can be reached around communications, travel and addressing specific issues.

It is important to seek independent legal advice to help you understand your rights and responsibilities, and where possible, avoid going to Court. If you are seeking legal advice about your separation, or just need to understand your options further, Daykin Family Law can help.

Contact us today to make an appointment with Shannon Daykin, an Accredited Family Law Specialist. Shannon was recently named as one of Brisbane’s Leading Family & Divorce Lawyers (Recommended) and Leading Parenting & Children’s Matters Lawyers (Leading) 2021, Brisbane, in the prestigious Doyle’s Family Law Guide. We offer a reduced fixed fee initial consultation, which can be conducted in person, by phone or by video conference.

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.

Christmas is considered a very special time of the year for many people around the world, but for some it can be a time of sadness and frustration. Following a relationship breakdown, Christmas may seem like a daunting time, particularly when parenting children across separate households.

Where both parents are willing and able and there are no safety concerns to consider, the best outcome of a separation is co-parenting. This is where both parents agree to put their children’s interests first and to communicate in a respectful, child-focused way, setting boundaries and compromising to lead the way to effective co-operation.

Here are some ways in which you can ensure the best chances of ensuring a happy and healthy Christmas this year for your children:

1. The kids come first

When making decisions, always consider what is in the best interests of the children. Younger children may worry about whether Santa will reach them, whilst older children might have a preference for where they spend Christmas. Bringing them into the decision-making process can be beneficial for the whole family and make children feel heard.

2. Communication is key

Each parent should communicate their expectations in advance with each other as it is important that both parents understand the other’s needs. Being prepared, realistic and willing to listen and compromise may make a stressful situation more manageable.

3. Sharing of Christmas presents

In regards to Christmas presents, consider agreeing on a budgetary limit so as to avoid one parent being perceived as giving more than the other. To try and preserve some form of normalcy, both parents can agree to buy one main present for each child signed from both parents. This approach will demonstrate a united front.

4. Sharing of time with the children

You may decide that your children should spend Christmas Eve at one home and Christmas Day at another. Whatever you decide when co-parenting at Christmas, you can find ways to make it special for the children, and extended family too.

5. Travel arrangements

Where traveling will be involved with one of the parents over Christmas, it is advisable to make sure the other parent has agreed to the plans, or that a compromise can be made for time spent together before or after the travel period if a Parenting Plan has not yet been agreed upon.

6. Avoid any fighting

When discussing Christmas plans, ensure the discussion does not end up in a fight, especially in front of the children. Research tells us that this may perpetuate any guilty feelings the children may have over the separation. Try to communicate in a clear and respectful way and ensure the children are not exposed to a dispute.

7. Send updates

Agreeing on an ‘update’ style of communication can be beneficial. You can report on activities, send photos of particular events and help the other parent to feel involved. Give and ask for information that you expect to get as a parent in a timely manner.

8. Accommodate the feelings of the children

Where the children may start to miss the other parent, consider allowing the children to contact the parent so as to alleviate their anxiety, especially where the children are still young. It is important that the children are not made to feel guilty for experiencing such feelings or feeling ‘stuck in the middle’ of a separation.

9. Involve the children in the Christmas planning

When the Christmas arrangements have been planned and agreed between both parents, it can be important to communicate these plans to the children so that they feel involved and that there are no surprises for them.

10. Be flexible and listen to the needs of the children

Where the children feel uncomfortable with any Christmas plans, it is important to take their feelings into consideration and consider whether any plans could or should be amended so that they feel safe and assured. Like the first tip, the children come first, so keep their best interests at heart.

Holidays like Christmas may be a difficult time for children especially young children therefore it is vital that each parent put aside their feelings and ensure there is a smooth transition for the children during this time. Despite all of your efforts, it is possible that difficulties may still arise. You can take responsibility for what you do as a parent, however you cannot be responsible for how the other parent behaves. If you find yourself in this situation where the other parent will not cooperate, remember that help is available.

If you’ve tried all the above tips but have difficulties communicating with the other parent after separation, you may need to consider other options. This may include engaging a lawyer to help negotiate plans on your behalf, or engage the assistance of a mediator to assist in facilitating an agreement.

Our separation and divorce lawyers can assist you through the process to come to an amicable agreement regarding parenting arrangements.

Contact us today to make an appointment with Shannon Daykin, an Accredited Family Law Specialist. Shannon was recently named as one of Brisbane’s Leading parenting lawyers in the prestigious Doyle’s Family Law Guide. We offer a reduced fixed fee initial consultation, which can be conducted in person, by phone or by video conference.

Separation or divorce can be an emotional journey that can have both physical and mental health effects on people. The separation and divorce process, coupled in some situations with the family court process, can become incredibly stressful, taking a toll on the wellbeing of parties, sometimes impairing their judgment and decision-making abilities.

Literature tells us that separated couples going through the process might experience a range of overwhelming psychological symptoms that includes loneliness, sadness, shock, anger, uncertainty, guilt, betrayal, frustration, hopelessness, or a mixture of all. These feelings can last a short-time or have a lasting impact and so it is important to deal with those feelings in a healthy way.

Mental health is a vital aspect of our wellbeing. Many people see mental health issues as only serious disorders or health conditions, however things like stress can have a big impact on mental health. It’s easy to shrug off your own feelings, particularly when juggling work and parental responsibilities, however it’s important to prioritise self-care.

Here are a few ways parties going through a separation or divorce might consider when prioritising their mental health.

Ways to Protect Your Mental Health During Separation or Divorce

1. Talk

It can be important to talk things out. Even when your feelings are particularly strong, you should try to communicate them to a trusted confidant.
Endeavour to build healthy relationships and surround yourself with a support team of people with similar values as you, who understand and who can listen to you.
Your support team can include a family member, friend, colleague or a third party counsellor.

2. Acknowledge the pain

Acknowledging the feeling of loss caused by separation can be crucial. When couples separate due to the death of a partner, there is a defined grieving process of denial, questioning, depression or anger, evaluation, and acceptance.

On the other hand, when a partner is lost due to separation or divorce, many partners find themselves without clear guidance on how to process the loss. Our review of literature in this area tells us that some couples have found it helpful to follow the ‘five stages of grief’ model:

Denial
This occurs at the beginning of the separation or divorce process. At this stage, couples find it difficult to accept that the relationship is coming to an end. It can be normal to have a feeling of denial when you go through such a major life-changing event as separation or divorce. It is a form of coping mechanism people use.
Questioning
At this stage, you question whether there is a way you could have handled things differently besides going through separation or divorce. At this point, you may wish you could change the past and the events that led to the relationship breakdown.
Depression or Anger
You may experience anger, anxiety, depression as different negative feelings begin to emerge. At this stage, you may benefit from the added support of loved ones or professionals.
Evaluation
At this stage, you might begin to weigh the reasons that your relationship didn’t work and this may include taking responsibility for your part in the breakdown.
The factors that led to the breakdown of your relationship may be difficult to process, but evaluating what went wrong and taking ownership where required can help in moving on. While evaluating, no matter what caused the breakdown of the relationship, it is important to allow yourself to acknowledge the emotions that come with this stage.
Acceptance
This is the stage where you accept what has happened and take steps to move on or look towards the future.
It is important to remember that every individual is unique and process grief differently. It may be totally normal if you don’t fit into a particular grieving model.

3. Maintain physical health

We all know that physical health is closely connected with mental health. Stress that persists for a long time can cause health problems which can have a tremendous impact on mental health.

It therefore becomes paramount that you maintain or improve your physical health when going through the process of separation or divorce. It might be of help to partake in stress-reducing physical activities that fit into to your lifestyle such as swimming, walking, jogging, bike riding, or having a good night’s sleep.

4. Stay positive

It can be daunting to have a positive outlook when dealing with an intense life transition such as separation or divorce.

It is crucial however to try to swap the negative feelings and emotions that come along with positive thoughts. Positive emotions have a way of translating to healthy mental wellbeing. Think of the things that are within your control and then make a plan to improve them, if needed.

Optimistic thinking has been shown to enhance mental and overall health.

5. Take time to review what matters to you

The mental stress of divorce or separation can make you lose yourself. This might be a good time to review what matters to you and a time for reconstructing who you are again.

Find what matters to you – this could be spiritual or religious beliefs, music, art, or other activities or hobbies that bring you joy. Rediscovering purpose and remembering the positives in life promotes good mental health. It can also be a means of coping through separation or divorce.

At a stressful time, it is vital to have a trusted advisor on side to help you through the maze of separation. At Daykin Family Law, we strive to make the separation and divorce process as collaborative and conflict-free as is possible.

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

If you are concerned about your mental health or wellbeing, we recommend that you contact Beyond Blue on 1300 22 4636.

Discover in what scenarios an ex-spouse or partner may be entitled to your inheritance in Australia after a divorce or separation.

It is quite common that one of the parties to a marriage or de facto relationship receives an inheritance during the relationship. But conflicts can often arise when the relationship comes to an end and the process of property settlement begins. This conflict is exacerbated when the recipient of the inheritance becomes concerned with the prospect of the ex-partner claiming or retaining the inheritance.

An inheritance can be classified as property under the Family Law Act 1975 and for asset division, it is dealt with under property settlement.

Property settlement with an inheritance in the mix can be confusing to separating or divorcing couples. The recipient party might believe that the inheritance is intended solely for their benefit and should not be treated as part of the divisible asset pool to be shared with the ex-partner.

The other party on the other hand, might think that the inheritance was given for the benefit of both partners for family use, or due to other reasons, and therefore should form a part of the divisible asset pool at the end of the relationship.

Can my ex-spouse or ex-partner claim part of my inheritance?

An ex-partner might be able to claim part of an inheritance at the breakdown of the relationship, whether it arises from a marriage or de facto relationship.

The easiest and most practical way to protect an inheritance after separation is by reaching an agreement on how assets including the inheritance would be divided.

The agreement reached can be formalised by applying to the court for a consent order or by entering into a binding financial agreement with lawyers.

Where a separated couple has made attempts to negotiate an agreement and could not finalise one, they can approach the court to decide if the inheritance would form part of the property pool available for distribution, or would be left solely for the benefit of the beneficiary.

If a recipient party of an inheritance took steps to protect what they received, such as by keeping it separate from the pool of family assets, the court may in some cases treat the inheritance as separate from the property pool available for distribution.

There is no formula for how the court treats the division of assets including inheritance during property settlement. The court will consider what is just and equitable and evaluate the facts and merits of each situation. However, the court may consider the following factors to make the decision:

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The time the inheritance was received

The court may consider whether the inheritance was received before the relationship began, during the de facto relationship/marriage, or after separation.

Where the inheritance was received before the relationship began, early in the relationship, or before the commencement of cohabitation, the court may more likely consider it as an initial contribution of the recipient party to the relationship and the inheritance may not be separated from the property pool available for distribution.

The treatment of an inheritance received during the relationship will depend on how the inheritance was used and sometimes the intentions of the benefactor can be relevant.

Where the inheritance is monetary, for example, if the money is spent on paying family expenses or used for the benefit of both parties generally, it may be treated as a financial contribution by the recipient party and more likely to be added to the ”property pool”.

This means that the longer the period between when the inheritance was received and the time of separation, the more likely the courts may be to treat it as part of the pool of assets to be divided.

Usually when an inheritance is received after separation, there is a diminished opportunity for intermingling it with the divisible asset pool. The court can either adopt a “two pools” approach, effectively separating the inheritance from the rest of the property pool or treat the inheritance as part of the property pool. In the latter case, when an inheritance is received after separation, a higher percentage contribution may be awarded to the recipient party.

Contributions made by the ex-partner to the inheritance

The court may consider if the ex-partner made contributions to the inheritance. Contributions from a former partner can effectively leave the inheritance unsheltered and open to be treated as part of the divisible asset pool. For example, if the inheritance is an old cottage that needs a new roof, and if the ex-partner fixes the roof, the cottage may no longer be considered an inheritance solely for the benefit of the recipient party and may be added to the divisible asset pool, and certain findings may be made about contributions of both parties to the inheritance instead of just one party.

The court may also consider the intention of the benefactor on how the inheritance should be used.

If the intention of the benefactor shows clearly that the inheritance is meant for the whole family, the inheritance may be added to the property pool to be divided as part of the property settlement.

The size of the inheritance

The size or value of an inheritance can affect whether the inheritance is included in the asset pool or not.

The court may consider the size of the inheritance and compare it to the value of the joint asset pool. Where the joint asset pool is substantially smaller than the inheritance, the courts may include the inheritance to ensure a just and equitable property settlement for both parties.

The court may also consider the contribution of the ex-partner and weigh it against the size of the divisible asset pool. If the divisible asset pool shrinks significantly when the inheritance is excluded and the court believes the exclusion will not allow for a just and equitable division, the inheritance may in that case be treated as a part of the property pool for division.

Relationship of the ex-partner with the Benefactor/Testator

There are situations where the court will consider the relationship between the benefactor and the ex-partner.

The former partner might have had a good relationship with the benefactor. For example, the benefactor might have lived with the partners, and the ex-partner might have assisted in taking care of the benefactor when ill for example.

While taking note of the intentions of the benefactor in the will, the court may also put the ex-partner’s relationship with the benefactor into consideration and add the inheritance to the pool of assets to be divided.

Summary

To sum it all up, in a separation or divorce, an ex-spouse or ex-partner might be able to claim that the inheritance of the other party forms part of the property pool available for distribution as part of property settlement. This depends on several factors as mentioned above.

To avoid a costly legal battle after separation, couples in an intact relationship can consider entering into a binding agreement detailing how their property (including an inheritance) will be treated if the relationship ends.

Every case is different. We recommend that you contact us to discuss your specific situation and how best to approach inheritances and your property settlement.

Daykin Family Law can guide you through the process of property settlement. 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 at (07) 3852 5490 to make an appointment for a fixed fee initial consultation today.

There are several reasons why you may be thinking about relocating, temporarily or permanently. You may wish to move to another town, move interstate or travel to another country. There is a common law presumption unless a Court makes another order that both parents of a child who is not 18 have parental responsibility for their child, and therefore there are legal implications that must be considered when relocating with a child, whether you are separated or divorced.

Today’s blog talks through some of the common questions asked when considering relocating with a child within Australia. The list is not exhaustive by any means, so we encourage you to speak to us to discuss the matter in detail and find out what’s right for your individual circumstances.

What is child relocation?

Child relocation can be described as the changing of a child’s living arrangements to another town, city, state or country. If parents have an order for equal shared parental responsibility, and a change to the child’s living arrangements makes it significantly more difficult for the child to spend time with a parent, then the non-relocating parent’s consent to the relocation or court order permitting the move is needed.

The relevant legislation is s65DAA of the Family Law Act, which explains in detail the process that the court must follow when considering if a child should be spending equal or substantial time with each parent.

How do I get permission to move?

If there is a need to relocate, first and foremost it is encouraged that you talk to the other parent and try to come to an amicable agreement. You may be able to compromise on the other parent spending longer periods of time during school holidays or longer visits through the year, or your former partner may agree to move to where you are hoping to relocate to.

Attending dispute resolution can often help in reaching an agreement about the relocation. If you are able to resolve the issue, it is often best to enter into a written parenting plan or apply to the Family Court for a consent order to formalise the agreement.

How do I make plans for contact between my child and the other parent?

It is important to set out the parameters of contact or “time and communications” with the other parent on the type of contact (for example video calls, telephone calls and physical contact), how frequent communications or visits/time will be, how costs of travel will be split, if and how the child can travel, accompanied or otherwise. Once you have agreed on the frequency and type of communications, this can be recorded in writing, preferably in the form of a parenting consent order.

What if I can’t reach an agreement with the other parent?

If you have tried and failed to reach an agreement, you must demonstrate that you have attempted family dispute resolution (with the exception of family violence and other limited exceptions) before you can apply to the Federal Circuit Court for an order that permits relocation.

Obtaining a relocation order can be difficult, expensive and three may be delays. The court will always consider the best interests of the child before any other factors, as this is the paramount consideration for the court.

How do I apply to the court for a relocation order?

If you are applying for relocation, you will need to include in your application a demonstration of an attempt at Family Dispute Resolution, as well as detailed information of your plans for relocation. For example, you may need to include information on;

where you are going
your reasons for the relocation
the housing situation
plans for school and before/after school care
the support system in the new location
history of your relationship with your former partner
the relationship between the child and each parent
your proposals for the child’s time and communication with each parent after any relocation

What if the child is relocated without a court order?

If a parent moves without consent of the other parent or a court order, the other parent may be able to apply to the court for an order that the child or children be returned until an outcome has been determined by the court in certain circumstances. If a court order is already in place, the other parent may be able to file a contravention application to seek that a party who breaches a court order be punished.

If the other parent takes your child without discussing it with you, you can apply for a Recovery Order with the court, which enable police officers to take action to find, recover and return a child to you, as well as prohibiting that person from removing or taking possession of the child.

Final Thoughts...

As with any major decision to be made as separated parents, consideration should always be given to where family dispute resolution is appropriate. This is a means to try and resolve parenting issues without litigation if possible, with the help of a trained and independent professional.

Daykin Family Law have extensive experience in mediating outcomes for clients which can avoid the court process and provide you with certainty. Talk to us today about how we can assist you.

Shannon Daykin is an Accredited Family Law Specialist with extensive experience in helping with family law matters and dispute resolution. If you are struggling to agree on a relocation arrangement, contact Daykin Family Law today to let us devise a clear plan for you.

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.

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.