Loading...
At Bateys Law Firm we offer a friendly relaxed environment where we provide you with professional advice in the areas of, Family Law, Business and Conveyancing Law, Family Provisions Claims (Disputed Wills), and Wills and Estate Planning.
We help couples that are going through a relationship breakdown get agreement on your property settlement and parenting plans, helping you spend time with your children, get your fair share of the property and preserve your relationship with your former partner.
Section 60CC of the Family Law Act 1975 (Cth) sets out the factors that the Court must consider when determining what arrangements are in the best interests of a child, including the time a child spends with each parent. The primary considerations are the benefit to the child of having a meaningful relationship with both parents, and the need to protect the child from physical or psychological harm, including exposure to abuse, neglect or family violence. The Court also takes into account additional factors such as the views expressed by the child (depending on their maturity and understanding), the nature of the child’s relationship with each parent and other significant persons, the willingness and ability of each parent to facilitate and encourage a close relationship with the other parent, the likely effect of any changes in the child’s circumstances, and any practical difficulties or expenses involved in the child spending time with each parent. The overarching principle is that the child’s best interests are the paramount consideration in all decisions regarding parenting
In most situations where both parents have had active involvement with the children, there are no issues or reason that both parents can’t spend reasonable and quality time with the children. In many cases these arrangements are put in place by agreement between the parents or negotiated through their solicitors prior to any formal court application being made.
If there are concerns regarding the safety of the child under a parent’s care then special arrangements can be made to ensure that the child’s welfare and safety are protected and to ensure that the child is not deprived of a relationship with either parent. These arrangements may include a form of supervision where the parent’s time with the child is supervised by a mutually agreed friend or family member or by a professional supervision service. The services operate throughout Australia and provide detailed reports of the interactions between the child and the parent being supervised. These reports can be extremely helpful to a court in determining if supervision is required long term and the validity of the alligations made by the other parent.
In determining what time your children will spend with you, it is important to look at the practical side of any arrangement. For instance if you are the primary income earner working 60 hours a week, it may not be practical for you to have the children 50% of the time. The simple logistics of that arrangement may not be feasible.
In some families a 50-50 arrangement works with the children spending approximately equal time with both parents over a continuing two week cycle. When determining what arrangements should be put in place it’s important to look at what’s in the best interest of the children as opposed to ensuring that each parent gets exactly half of the time each.
A sensible regime needs to take into consideration both parties’ working commitments as well as the children’s schooling and extra curricula activities. It is common for arrangements to be made that every second weekend plus one or two nights in each week, for the children to spend time with the parent who does not have the primary care of them.
Other special days need to be taken into account such as Mother’s Day, Father’s Day, birthdays, Christmas or other religious holidays and school holidays. We can provide guidance on what has worked for other families and assist in making arrangements that are least likely to lead to further court proceedings.
In determining what your financial position will be after you have separated, there are a number of things that we need to take into consideration. This is regardless of whether you are in a marriage or a de facto relationship.
First it is necessary to consider whether it’s just and equitable in all the circumstances to make an order to divide the marital property. In most cases the answer to this question will be yes. This principle was clarified by the High Court in the case called Stanford. This case details that the court will only make a decision to alter the ownership of property where it is just and equitable to do so.
The second thing that we need to do, is to identify and value the net property of both you and your spouse. This is done by looking at all the assets, all the liabilities, financial resources and superannuation. The net position is commonly referred to as the value of “the marital pool of assets”. The net value of the marital pool of assets is valued as at the date the orders are made, not at the date of separation. The reason for this is that the court needs to see your current financial position when determining a division of assets to ensure that the end position for both you and your spouse is fair and equitable in all the circumstances. This position may sound strange especially if you been separated for considerable time and have acquired assets after separation. The assets that you have acquired and assets that you have divested yourself of post separation may be taken into consideration.
The third thing that we need to take into consideration is the contributions made by both parties. These contributions can be made at the commencement of the relationship, for example you may have had a house prior to commencing the relationship, this will need to be taken into consideration so that you get the recognition of the contribution and as such an adjustment in your favour recognising your financial contribution prior to the relationship.
Contributions can be made prior to the relationship, during the relationship and after separation. These contributions can be both financial and non-financial. Contributions of wage and salary, inheritance moneys and retrenchment payouts are financial contributions. Non-financial contributions would include taking care of the children, providing labour for the improvement of the family home for example doing a renovation and the more mundane but very important daily routines of washing, ironing, cooking, taking the garbage out and doing the dishes. All these contributions need to be taken into account to determine what division of the assets is fair and equitable. These are referred to under the Family Law Act as section 79 (4) factors.
The fourth thing that needs to be considered are what the court call section 75 (2) factors. For each of the parties, these factors include your age and state of health, earning capacity, financial resources, who has the primary care of the child or children, your personal financial commitments, responsibilities for supporting another person, the duration of the relationship and details regarding the living arrangements of each of the parties to mention a few.
The prevailing principle is that the court will only make an order that is fair and equitable in all the circumstances. In order to make the best decisions when negotiating financial settlements it’s imperative that you have a strong understanding of how the court will deal with your specific circumstances. Once you are armed with this knowledge, it puts you in a strong position to negotiate and make financial decisions and agree to financial orders for the benefit of the children and you.
Most family law matters are resolved by the parties without either of the parties attending court. If an agreement can be reached between you and your spouse with regards to parenting and/or property arrangements, the appropriate documents can be drawn up and signed by the both of you. These documents are filed with court and the court will make the orders requested (in most cases) without the need for anyone to attend court. These are referred to as consent orders and they are called consent orders because both parties consent to what has been put forward. They are made by a court without the need for formal court proceedings.
If the matter can be resolved by consent orders, this is most cost-effective and beneficial way to finalise matters. Unfortunately not all matters are able to be finalised without the assistance of the court. In these cases a formal application needs to be filed and court dates set for the court to start the process. The court will encourage the parties to resolve the matter by consent throughout the process and will only make the final decision if the parties cannot come to an agreement.
While commencing formal court proceedings is not our preferred way to resolve family law matters it is often useful to progress a matter that has been bogged down due to one of the parties not being willing to engage in constructive negotiation. Where this happens the party that is not willing to have constructive dialogue is controlling the process through inactivity. This type of behaviour can be both costly and frustrating to you when you are trying to actively resolve the matter. Commencing court proceedings is a way to take control away from an inactive spouse. It does not give control to you, but it does give control to the court. This is advantageous as now both of you need to comply with the court’s timetable and requirements. This often has the effect of forcing your spouse to the negotiating table. Your spouse is no longer in control and is often uncomfortable in their new environment. As such, what was not able to be discussed or agreed prior to court is often agreed early on in the formal court process.
The court is there to help, but it is a process and you need to be well prepared. This is where securing the services of a competent family lawyer can make all the difference.
Meet our talented team of dedicated directors and lawyers, committed to delivering expert legal solutions
The court doesn’t allow unilateral decisions to be made regarding relocating a child where that relocation makes it difficult and impractical for the other parent to have continued involvement with the child. If the parents can come to an agreement on relocating the children then there is no issue and this can be done. In certain circumstances, the court will allow a relocation to happen even though the relocation may make it difficult for a parent to spend time with the children. Circumstances that may be considered are family and support structures, the history of family violence, the history of where the child has resided, the child’s social environment and support networks.
If you are concerned that your bank account or mortgage redraw facility will be depleted due to your spouse withdrawing large sums of money, it may be appropriate to stop your spouse’s access to those accounts. This may be as simple as changing the authority on the account to both of you to sign for any withdrawals. Saying that, if it has been common practice for your money is to be shared, it may be necessary to make arrangements to ensure that regular household bills and expenses of the children are met or contributed to. Where both parties are earning a reasonable income it may be appropriate for the access to your bank accounts to be stopped. If you and your spouse own a property it is important to ensure that appropriate arrangements are made so the mortgage continues to get paid. By continuing to pay things such as the mortgage and council rates, it limits your spouse’s post separation contributions and the associated adjustments in their favour in terms of their percentage of the asset pool.
If you have an agreement with your spouse that you can take the children overseas then there is no issue with that. It is important that you have the conversation with your spouse to ensure both parties know exactly what is planned. In circumstances where one of the parents is concerned that the children may be taken overseas and not returned, they may apply to the court to have the children included on the Federal Police airport watchlist. If this has happened, the children will not be able to leave the country. If your children are on a watchlist and you do require to take them overseas you will need to get a court order either removing the children temporarily or permanently from the watchlist.
If your matter ends up going through formal court proceedings resulting in a final hearing, it could take in excess of two years before final orders are made. If agreement can be reached between the parties through the court process, consent orders can be made at any time through the proceedings.
