Your Family Law Separation Guide
YOUR FAMILY LAW SEPARATION GUIDE
There are many things to consider when you or your partner have made a decision to end your marriage or de facto relationship. At Furman+Furman we will guide you each step of the way to achieve the best possible outcome during this challenging and emotional time.
We have prepared this guide to give you a better understanding of the separation process and the options available to you.
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Parenting arrangements refer to parenting decisions about who the children will live with, how much time they will spend with each parent, and how major decisions regarding their upbringing will be made.
At the core of the Australian Family Law framework are the child’s best interests and promotion of safety of the child. The parents are required to participate in joint decision making to advance the best interests of the child.
From 6 May 2024 there will be a number of general considerations when determining best interests of the child, which are:
The needs of the child including developmental cultural and psychological needs including ensuring their safety;
Capacity of carers to provide for the child’s needs;
Benefit of the child to have a relationship with the child’s parents and other people significant to the child;
Any views expressed by the child;
A child’s right to enjoy Aboriginal or Torres Straight Islander culture;
Any other relevant matter.
Making decisions about post-separation parenting arrangements should be a collaborative process and parents should note that before going to court, they are required to attempt Family Dispute Resolution (FDR) to resolve their disputes. This involves meeting with a qualified mediator (this can be a private mediator or a subsidised service through Family Relationship Centres or Relationships Australia) who assists them in reaching agreement regarding parenting arrangements.
In parenting matters, FDR is, with limited exceptions (such as family violence), mandatory before any court application can be filed and there is an expectation that people in dispute will attempt to resolve disputes by compromise, discussion.
Dispute resolution services can provide an affordable and timely option for resolving disputes, while allowing you greater input into the process and the outcome.
Some parents at the outset presume that post-separation parenting should looks like “equal time” with each parent.
Equal time arrangements may be appropriate when:
Parents can cooperate - Both parents are able to communicate effectively and cooperate with each other in making decisions about the children's upbringing
Geographical proximity – the parents live close enough to each other to facilitate the logistics of an equal time arrangement without causing undue disruption to the children's lives.
Children’s wishes - depending on the age and maturity of the children, their preferences may be taken into account, especially if they express a desire for equal time with both parents.
Workable for the children - the arrangement is practical and workable for the children, taking into consideration their age, schooling, extracurricular activities, and other commitments.
Children’s well-being - The arrangement promotes the safety and well-being of the children, with both parents providing a stable and nurturing environment
It's important to recognise that equal time arrangements may not be suitable for all families due to a parent’s work schedule or especially in cases involving high conflict, domestic violence, substance abuse, or other factors that could negatively impact the children's wellbeing.
Ultimately, the decision regarding parenting arrangements, including whether equal time is appropriate, is made based on the unique circumstances of each family and with the best interests of the children as the paramount consideration.
It should be noted, however, that equal time arrangements are generally not recommended when the children are very young so as not to compromise their attachment with the primary carer (the parent who spent the most time with them prior to separation).
If equal time is not going to work for your family, we can assist you in navigating other options available to you within the Australian family law framework.
If agreement is reached through mediation, parents can formalise their arrangements in a parenting plan. This document outlines the agreed-upon parenting arrangements, including matters such as where the children will live, how much time they will spend with each parent, and how decisions regarding the children will be made. While parenting plans are useful and show the parents’ intentions we do not recommend them mainly because they cannot be enforced as an court order can. For those clients who would nevertheless prefer their own informal arrangements we can assist with drafting a detailed parenting plan.
Alternatively, if an agreement is reached at mediation or through negotiations between the parents’ lawyers, they can apply for consent orders from the Family Court and Federal Circuit Court of Australia. Consent Orders are legally binding and enforceable arrangements that reflect the agreements made by the parties. We can assist you by drafting the appropriate Consent Orders and the accompanying Application. If one party fails to comply with the parenting orders on a number of occasions enforcement or contravention proceedings can be issued in Court against the offending parent.
If mediation is unsuccessful, there are instances of family violence which would make mediation not appropriate or if there are serious issues that cannot be resolved through negotiation, you can initiate court proceedings. In court, a judge will make decisions about parenting arrangements based on the best interests of the children. However, going to court should generally be considered a last resort, as it can be time-consuming, expensive, and adversarial. It should be noted, however, that even during court proceedings there are opportunities to reach agreement though the parties’ barristers or solicitors during various court appearances and through correspondence.
Throughout the process of negotiating parenting arrangements, parties are required to act in good faith and prioritise the welfare of the children. They should also seek legal advice to ensure that their rights and responsibilities are protected and that any agreements reached are fair and enforceable.
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Parents need to determine the financial support that will be provided for the children, including ongoing periodic payments and other expenses such as schooling, medical care, and extracurricular activities.
This can be done by way of a private arrangement between the parents or by applying for a formal assessment from Child Support Agency (CSA).
The Child Support Agency is responsible for assessing, collecting, and transferring child support payments between parents.
The CSA calculates child support payments based on the income of both parents, the number of children involved, and the amount of time each parent spends with the children. The assessment is made using a formula that takes into account these factors. The income of both parents is considered when calculating child support.
Private arrangements relating to child support can be documented by way of a Limited or a Binding Child Support Agreement.
Limited Child Support Agreement
A limited child support agreement still involves some reference to a prescribed formula for child support assessment which can be obtained from the CSA website or through a formal assessment.
It offers flexibility in the amount of child support payments, as parents can agree to a higher or lower amount than what would be calculated under the formula.
Limited child support agreements can be reviewed and terminated under certain circumstances, such as a significant change in circumstances.
Binding Child Support Agreement
A binding child support agreement allows parents to determine the amount of child support payments without reference to the CSA formula.
It can specify the exact amount and frequency of child support payments, as well as other financial arrangements such as payment of expenses like school fees, medical expenses or provision of insurance.
To be legally binding, it must be in writing, signed by both parents, and each parent must obtain independent legal advice before signing.
Once signed and registered with the CSA, a binding child support agreement can only be varied or set aside by another binding agreement or court order.
Additionally, binding agreements require independent legal advice for both parents and have stricter requirements for variation or termination.
At Furman+Furman we can help you determine which child support option would be appropriate for your family and draft the documents accordingly.
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Family law property settlement in Australia is determined through a process that aims to achieve a fair and equitable division of assets and liabilities between separating spouses or de facto partners. Here's an overview of how property settlements are determined:
Identifying assets and liabilities
The first step in the property settlement process is to identify all assets, liabilities, and financial resources owned by both parties. This includes property, savings, investments, superannuation, vehicles, businesses, trusts as well as any debts.
Assessing contributions
We need to consider the financial and non-financial contributions made by each party to the relationship. Financial contributions include income earned, assets brought into the relationship, and financial support provided.
Non-financial contributions may include homemaking, childcare, and contributions to the welfare of the family such as renovations.
Future needs
We will also takes into account the future needs of both parties, including their age, health, earning capacity, financial resources, and responsibilities to care for any children
Just and equitable outcome
Based on the contributions and future needs of each party, the court we will strive to achieve a just and equitable outcome for you. This does not necessarily mean an equal split of assets; rather, the goal is to divide property in a way that is fair and reasonable given the circumstances of the case
Consideration of other factors
We will also consider various factors in determining the property settlement, including the duration of the relationship, any agreements between the parties, financial resources and earning capacity, and the standard of living enjoyed during the relationship.
In order to avoid costly and time-consuming litigation we encourage our clients to negotiate a property settlement without going to court. This can be done directly between you and your spouse/partner or with the assistance of lawyers or mediators. If an agreement is reached privately, we strongly advise formalising it through a Binding Financial Agreement or Consent Orders, which we can draft for you.
If despite the parties’ best efforts agreement cannot be reached either party can make an application to the Family Court or the Federal Circuit Court of Australia.
Throughout the court proceedings there will be further opportunities for negotiation via correspondence, private mediation or through a Family Law Conciliation Conference facilitated by the Courts. A Conciliation Conference is a formal meeting facilitated by a Family Consultant, also known as a conciliator or a mediator, who is typically appointed by the Family Court or Federal Circuit Court.
The purpose of the conference is to assist separated or divorcing parties in reaching agreements regarding property settlements. The court will then make a decision regarding the property settlement based on the evidence presented and the relevant legal principles.
During the conciliation conference, the Family Consultant meets with both parties and their legal representatives, if any. The consultant's role is to facilitate communication, clarify issues, and assist the parties in exploring possible solutions
If the parties reach agreement on some or all of the issues discussed during the conference, those agreements may be formalised either through Consent Orders.
If the parties cannot reach agreement the matter will proceed to a final hearing before a Judge.
In family law court proceedings each party is responsible for their own legal costs with some exception (i.e. if a party consistently breaches court orders).
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Eligibility for spousal maintenance is determined based on a range of factors, including financial need and capacity to provide support. While the specific criteria may vary depending on the circumstances of each case, the following are some of the considerations
Financial Needs
The primary consideration in determining eligibility for spousal maintenance is whether the spouse seeking maintenance is unable to adequately support themselves financially. This may be due to factors such as:
Lack of employment or underemployment;
Inability to each a sufficient income to support oneself due to age, illness or other circumstances’
Responsibilities such as caring for children or other dependents that affect the ability to work or earn an income.
Financial capacity of the other spouse/partner
In addition to demonstrating financial need, the spouse seeking maintenance must also establish that their former spouse has the financial capacity to provide support. This involves assessing factors such as:
Income, including earnings from employment, investments and other sources;
Assets and financial resources such as property, savings and investments;
Standard of living during the marriage or relationship.
Contributions to marriage or relationship which includes financial and non-financial contributions
Duration of marriage or relationship
The length of the marriage or de facto relationship may also be a factor in determining eligibility for spousal maintenance. In general, longer relationships may increase the likelihood of a spouse being eligible for maintenance, especially if one spouse has been financially dependent on the other for an extended period.
Future needs and financial independence which include:
The ability of the spouse seeking maintenance to become self-supporting through education or training; or
The likelihood of changes in financial circumstances, such as retirement or changes in employment.
It is important to note that eligibility for spousal maintenance is assessed on a case-by-case basis, and the specific criteria may vary depending on the circumstances of each case. At Furman+Furman we can realistically assess your potential claim for spousal maintenances and provide advice accordingly.
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Either spouse can make an application for divorce following a period of separation of 12 months or more. This separation can take under the same roof, however, further supporting documentation will be required for the court to accept that separation has indeed taken place.
We can assist you with preparing your divorce application and any accompanying documents.
It is important to note that there is a time limit of 12 months after a divorce order has taken effect or 2 years after the end of a de facto relationship for filing court applications for property and spousal maintenance.
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Wills
In most jurisdictions, divorce automatically revokes any gifts or appointments made to a former spouse in a Will. This means that if you have a Will that leaves assets or appoints your former spouse as an executor or trustee, those provisions will be voided upon divorce.
We strongly recommend updating your will as soon as your decision to separate from your spouse or partner is final (whether you are divorced or not) for the Will to accurately reflect your current wishes (which may also include wishes regarding guardianship of minor children).
Powers of Attorney – Enduring (Financial) and Medical (Appointment of Medical Decision Maker)
In Victoria divorce does not automatically cancel a Power of Attorney. It is therefore very important to review and update your power of attorney following a separation and/or divorce to ensure that your affairs are managed according to your current wishes. For example, if previously your attorney was your spouse or partner you may want to appoint a different attorney or change the powers granted to the existing attorney.
Superannuation and Life Insurance
Separation and divorce can also impact beneficiary designations on accounts such as life insurance policies and superannuation. It's important to update these designations after separation to ensure that your life insurance and superannuation pass to your intended beneficiaries.