Below are a number of the more commonly asked questions (and answers) that we are asked about family law. While these questions and answers do provide some general information, every case is different and therefore, you should always seek the advice you need directly from one of our family lawyers.
To see the answer, simply click on the question and the answer will pop out.
There is also a great deal of family law information in our Glossary page.
There are three ways to resolve a family law matter reliably. Two of those – a consent order and financial agreement – are relatively quick and cost-effective but requires some cooperation; the third – a judge’s order – tends to be difficult, expensive and stressful but can occur without cooperation. It follows that cooperation is the key factor that means the difference between a quick, easy, cost-effective family law matter and a difficult, expensive, stressful one. See Cooperation.
Sometimes, it is not feasible to resolve a family law matter by consent or by financial agreement.
Disclosure obligations and advice requirements are central to family law. The law assumes that parties need reliable information about each other’s financial circumstances and that each needs independent advice about how family law operates in order that a deal can be fully reliable.
It is not generally feasible to make informed decisions in family law matters without being able to make a reasonable calculation of the value of combined net assets or without sufficient information to facilitate proper advice. This requires a level of cooperation between parties.
Sometimes, it is not feasible to obtain the kind of cooperation that is necessary to obtain sufficient information to make informed decisions. In such cases, a party may decide to make use of the court’s rules and/or to request orders of the court in order to oblige another party to cooperate and/or to provide information.
A decision to involve the court will ordinarily involve a detailed examination of the potential benefits and potential costs.
Very briefly, involving the court can, where it is necessary, provide benefits by obliging both parties to provide the kind of information that is necessary for each to prepare a reasonable calculation of combined net assets and to facilitate proper advice. This means that both parties can be in a position to make informed decisions. Without such information, a party may not be able to translate family law advice (which is most usually expressed in terms of overall percentage shares of combined net assets) into dollars and cents and may not be able to tell the difference between a good and a bad deal. This is the most common cause of failure of settlement conferences. See Case assessment conference and Conciliation conference. Involving the court will also oblige parties to attend at settlement conference(s) and will provide a timetable that obliges both parties to provide information and to attend such conference(s) on a timely basis.
Very briefly, involving the court can mean additional costs. While the first two steps in the court’s process are generally efficient and cost-effective and while there is a reasonably good probability that a matter will be resolved at those steps (and that probability can be substantially improved with proper preparation – see Case assessment conference and Conciliation conference), there can be no guarantee that a matter will be resolved within those first steps. Further steps in the court system can be expensive, time-consuming and stressful. A full discussion of this point is beyond the scope of these notes. You might wish to call us to discuss.
Most of the information we need will probably be in your head. However, it will be a big help if you prepare a list of asset and liability values for both parties that is as up-to-date, as accurate and as complete as is possible in a few days. If there is something that should be on that list but it might cause upset if you ask your partner (or ex) about it (like how much super they have for example) leave it out for now.
Then call 02 9222 8000.
If there are relevant companies or trusts, it would also help to bring copies of the most recent balance sheets and profit and loss accounts if they are available.
There are three ways to resolve a family law matter reliably. Two of those – a consent order and financial agreement – are relatively quick and cost-effective but requires some cooperation; the third – a judge’s order – tends to be difficult, expensive and stressful. It follows that cooperation is the key factor which is the difference between a quick, easy, cost-effective family law matter and a difficult, expensive, stressful one. The problem is that this is not well understood or well-advertised and, if you watch American television or talk to well-meaning friends of family, you can get the opposite impression. See Cooperation and Consent order.
While it is common for people to take an adversarial or combative approach to family law, often, small things that might promote cooperation and trust, especially at the beginning of a matter, can pay dividends in the form of savings in costs, delay and stress. See Cooperation.
A consent order is an order of the court made with the consent of both parties (as opposed to an order made by a judicial officer independently of the parties’ consent).
A financial agreement is a contract between the parties made under the Family Law Act that defines how the assets of the parties are to be divided and whether spouse maintenance is payable upon breakup of the relationship.
Generally consent orders are in writing, they will include all relevant details, including details of mechanics and timing for compliance, they will be signed by both parties and (generally) signed by both parties’ solicitors or representatives.
If a property consent order is properly drafted and made following advice and full and frank disclosure of both parties’ financial circumstances, it will be very reliable. For the court to make a consent order and for it to be reliable (or as reliable as it can be), the court must be satisfied that each party has made full and frank disclosure, that each party has received independent advice about the operation of family law and that the order is just and equitable. Satisfying these requirements can usually be done by completing documents setting out each party’s financial circumstances and evidence of advice. Court attendance is not generally necessary for consent orders.
(See also When an order can be set aside (section 79A))
Consent orders relating to children can change but, most often, this would occur only where there has been a significant change in circumstances since the last order.
In most family law matters, the kind of result that can be realistically expected in the courtroom will tend strongly to influence results that can be achieved via negotiation. This tends to be true in relation to parenting and child-related matters as well as in relation to property. This is because the courtroom option generally remains available to both parties. Where that option is more attractive to one party than what is offered by the other party, the party that finds the likely courtroom result attractive will tend to reject offers and to continue through the court process. This will generally prompt offers closer to courtroom expectations.
Section 60CA of the Family Law Act says that in “deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration”.
Section 60CC provides guidance about considerations relevant to determining what is in a child’s best interests. Subsection 60CC(2) sets out the primary considerations as:
- the benefit to the child of having a meaningful relationship with both of the child’s parents; and
- the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Sub-section 60CC(2A) says:
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Subsection (3) sets out additional considerations as:
- any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
- the nature of the relationship of the child with:
- each of the child’s parents; and
- other persons (including any grandparent or other relative of the child);
- the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
- to participate in making decisions about major long-term issues in relation to the child; and
- to spend time with the child; and
- to communicate with the child;
- (ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
- the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
- either of his or her parents; or
- any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
- the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
- the capacity of:
- each of the child’s parents; and
- any other person (including any grandparent or other relative of the child);
- to provide for the needs of the child, including emotional and intellectual needs;
- the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
- if the child is an Aboriginal child or a Torres Strait Islander child:
- the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
- the likely impact any proposed parenting order under this Part will have on that right;
- the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
- any family violence involving the child or a member of the child’s family;
- if a family violence order applies, or has applied, to the child or a member of the child’s family–any relevant inferences that can be drawn from the order, taking into account the following:
- the nature of the order;
- the circumstances in which the order was made;
- any evidence admitted in proceedings for the order;
- any findings made by the court in, or in proceedings for, the order;
- any other relevant matter;
- whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
- any other fact or circumstance that the court thinks is relevant.”
In relation to consent parenting orders, subsection 60CC(5) says:
“(5) If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3)”.
The above is necessarily a very brief and general summary of what can be a complex process. There are many important cases that deal with children and parenting. While we like to talk about those cases, it is difficult to know where to start or what particular aspects or topics to cover in notes like these. It is probably better to call us on 02 9222 8000 to ask about those aspects or topics that relate to your particular circumstances.
In most family law matters, the kind of result that can be realistically expected in the courtroom will tend to strongly influence the results that can be achieved via negotiation. This is because there is a reasonable probability that the kind of result likely to occur in the court can be achieved in the first two steps in the court’s process (usually) relatively efficiently and cost-effectively and because the chances of resolving a matter in those first two steps can be significantly increased with proper preparation (see Case assessment conference and Conciliation conference).
When making an order concerning the property (net assets) of the parties or either of them under section 79 of the Family Law Act, the court will (in brief summary) consider those things listed in sub-section 79(4):
- each party’s direct and indirect financial contributions;
- each party’s non-financial contributions (including parenting and domestic contributions);
- the effect of any proposed order or declaration;
- the parties ages and health;
- the income, property, financial resources and earning capacity of each of the parties;
- care of children;
- commitments necessary for the support of each party, children or other persons;
- social security entitlements;
- living standards;
- education or training issues;
- potential effects on creditors;
- duration of the marriage;
- parenting roles;
- financial circumstance relating to cohabitation (with a third party);
- child support;
- the terms of any relevant financial agreement;
- any other circumstance the court thinks justice requires be taken into account;
and sub-section 79(2):
- whether it is just and equitable to make the order;
(not necessarily in that order – the requirement under sub-section 79(2) being one that permeates the entire process).
The above is necessarily a very brief and general summary of what can be a complex process. There are many important cases that deal with family law property settlement. While we like to talk about those cases, it is difficult to know where to start or what particular aspects or topics to cover in notes like these. It is probably better to call us on 02 9222 8000 to ask about those aspects or topics that relate to your particular circumstances.
You do not need to be divorced to resolve property or parenting issues. In fact, it is generally advisable to resolve property and parenting issues as soon as possible after separation.
As a general proposition, family law matters that begin quickly and efficiently tend to end quickly and efficiently and those that delay tend to progress more slowly and with more difficulty.
An application for divorce cannot be filed until there has been twelve months’ separation. Divorce does not resolve property or parenting issues – see divorce.
There are only three ways a family law matter can be resolved reliably. Two of those ways (by consent order and financial agreement) are relatively quick, easy and cost-effective; the third (a court order) is relatively difficult, expensive and stressful. For the court to make a consent order and for it to be reliable (or as reliable as it can be), the court must be satisfied that each party has made full and frank disclosure of their financial circumstances, that each party has received independent advice about the operation of family law and that the order is just and equitable.
The independent advice must be provided by separate solicitors – both parties cannot be advised or represented by one solicitor.