Family Law

Family Law matters cover a broad range of issues including:

Divorce;
Property Settlements following breakdown of your relationship;
Spousal Maintenance;
Parenting disputes and matters about the care and welfare of children – including rights of step parents and grandparents and others;
Related intervention order applications.

Littleton Hackford can assist you in all these areas.

Divorce

Divorce brings your marriage to an end, and usually requires you to have been separated for at least 12 months. However, you can (and usually should) deal with your property settlement (and parenting) matters before then.

Be aware that typically parties are generally precluded (with some exceptions) from bringing property settlement disputes to the Family Courts if more than 12 months have passed since a Divorce Order was made (or 2 years from the date of separation, if you are not married). It is important to get legal advice and deal with these matters before that time limit expires.

Property Settlements

Many people are not aware of the matters the courts take into account and what is considered relevant when it comes to property settlements. We can help you navigate the complexities and help you focus on the important details.

The courts, and family lawyers advising their clients, typically follow a process that involves the below steps. However, a property settlement does have to involve a ‘fight’ at court. Parties who can reach an agreement about how to settle can obtain Binding Financial Agreements or Consent Orders (more about these below).

The steps mentioned are, broadly:

Identify and values all the assets and debts – whether jointly owned or owned by just one of the parties, and whether it was bought before, during or after the relationship. The parties’ financial circumstances and financial resources (things they don’t necessarily ‘own’ but can benefit from) are also relevant;
Consider the contributions made by each party – contributions include financial contributions (such as assets a party had before the parties started living together, funds provided to pay a house deposit, mortgage repayments, and household expenses) but also non-financial contributions (such as labour and skill to improve a house, and care and support provided to the other party or family), as well as contributions as a homemaker and to caring for the children of the relationship. Contributions are typically assessed “holistically” over the entire course of the relationship and the courts rarely, if ever, engage in an accounting exercise to see “who paid what”. Often times parties’ contributions will be considered “equal” even when one party has earned far more income than the other;
Consider the factors set out in section 75(2) of the Family Law Act (often called summarily “future needs factors”). This involves a comparison of various matters including the parties’ respective age, health, discrepancy in their ability to earn an income and needs in caring for others (particularly caring for the children of the relationship);
Finally, examining the findings from the previous steps and determining if the result is ‘just and equitable’.

Additionally, in some rare cases, the courts might consider it is not ‘just and equitable’ to interfere or adjust the parties’ property interests at all.

As noted above, if parties can settle without needing to go to court they can obtain Binding Financial Agreements or Consent Orders – these documents ensure their settlement is binding and enforceable.

A Binding Financial Agreement is a special contract. It is important to get these right, with the help of a solicitor, as if prepared improperly they can be set aside later by a court. A Binding Financial Agreement needs each party to obtain independent legal advice about it, and their solicitor signs a certificate confirming the advice was given.

Consent Orders (are obtained by joint application to the Federal Circuit and Family Court of Australia). Documentation is filed with the Court telling it about the parties’ assets and debts, incomes and expenses, and telling the Court what outcome they agree to. The Court must review the proposal and if satisfied it is a ‘just and equitable’ outcome, it will make the orders sought by the parties without the parties needing to actually go to court. We can assist you to prepare the required documentation and to identify whether your proposal is likely to be accepted or rejected by the Court.

Spousal Maintenance

In Australia, a party to a marriage (or a de facto relationship) may be liable to pay the other ‘spousal maintenance’ payments. This is different from ‘child support’ which relates to the maintenance of children and which is determined by the government using a formula in accordance with the child support legislation.

If one party cannot adequately support their reasonable expenses and the other party can afford to financially assist them, the party in need can seek orders for regular (eg, weekly) or lump sum spousal maintenance payments. In some cases the maintenance can be paid ‘in-kind’ (such as covering their mortgage repayments or utilities for them).

Often, spousal maintenance is considered within the context of a property settlement case and rather than orders being made for separate spousal maintenance payments, the party in need may receive an additional sum or percentage from the assets of the parties.

Like property settlement matters, parties are generally precluded (with some exceptions) from bringing property settlement disputes to the Family Courts if more than 12 months have passed since a Divorce Order was made (or 2 years from the date of separation, if you are not married).

Parenting disputes and matters about the care and welfare of children

Family law matters about a child or children are typically between the parents, but not always. Grandparents and any other people who have a genuine relationship or interest in the care and welfare of a child can seek orders (‘Parenting Orders’) about their care under the Family Law Act. This can include orders about where a child lives, how much time they spend with the other parent or other persons, what school they attend and so forth.

When parents have separated, in the absence of any Parenting Orders the law presumes they ‘jointly and severally’ have parental responsibility for the child. That means either one of them can make decisions about the long term major decisions for the child – decisions like where the child lives, where the child goes to school, what culture or religion the child has or is raised in, and (non-emergency) medical decisions. Therefore, if parents disagree about these things, it may be necessary to have a Court decide for them.

Typically the first step, when parents or others cannot agree on what arrangements should be in place for the care and welfare of a child, they must attempt mediation or ‘family dispute resolution’ (though there are exceptions, such as in cases of urgency or family violence). This mediation can be undertaken through local family dispute organisations. If the parents/parties can reach agreement, they can (often with the assistance of the mediator) draw up and sign a ‘Parenting Plan’ document – a Parenting Plan is evidence of the parties agreement, but it by itself cannot be enforced if one party decides to stop following the agreement.

If mediation cannot resolve the matter, court proceedings may be necessary. The Courts must always treat the ‘best interests’ of the child as the paramount consideration.

Related intervention order applications

It is quite common that one or both parties to a separation apply for Intervention Orders. Many clients are, understandably, concerned about the impacts of such Intervention Orders, particularly if the children of the relationship are included in the Orders. However, such clients are often unaware that the Intervention Orders may ultimately have little impact on the matter, particularly if the parties can agree to Spend Time arrangements for the children or if it is necessary, in any event, to seek a Parenting Order. We can advise you on what action should be taken, if any, if you are served with an intervention order in the context of a breakdown of relationship.