Family Law Practice Areas

Child custody and parenting cases

Parenting matters can be emotionally taxing and difficult to resolve. The Federal Circuit and Family Court of Australia has jurisdiction to deal with child custody (parenting) matters that are unable to be resolved by mutual agreement between the parties. The Family Law Act 1975, section 60CA, Requires the court to regard the best interests of the children as the paramount consideration in the making of any parenting order.

The primary considerations for determining the children's best interests are the benefit of the children maintaining a meaningful relationship with both parents, and the need to protect the children from harm or exposure to abuse, neglect or family violence.

Other considerations include the views expressed by the children themselves, the nature of the children's relationship with each parent and other family members, the extent to which each parent has for field his or her obligations to maintain the children, the capacity of each parent to provide for the needs of the children, and the practical difficulty and expense of the children spending time with the parents.

The first step in making arrangments for child custody is typically attendance at mediation, known as family dispute resolution.

Dividing assets on breakdown of relationship

The first step involved in dividing assets on the breakdown relationship typically involve some form of dispute resolution mediation. Where agreement can be reached between the two parties then that agreement can be formalised by way of an application for consent orders to the Federal Circuit and Family Court of Australia or alternatively via a contractual document known as a "binding financial agreement".

When matters cannot be resolved by consent, it may be necessary to commence proceedings in court. Family law property division is determined in accordance with a four step process. The first step involves the identification and valuation of the net asset pool that is available for distribution between the two parties (including superannuation). The second step involves an assessment of each party's contribution to the asset pool. Such contributions include direct financial contributions in addition to indirect contributions such as a party's efforts in parenting and/or as a homemaker.

Step three requires consideration of each party's future needs and whether an additional adjustment may be justified. The fourth and final step requires an assessment of whether the proposed orders of the court are just and equitable in all of the circumstances.

Binding Financial Agreements

Not all financial matters need to go to court. If parties to a family law separation have reached an agreement in relation to how assets are to be divided between them, or whether spousal maintenance should be paid, then they are able to resolve the matter in a formal way without having to file proceedings in court. This is done through a financial agreement under the Family Law Act 1975 (these agreements are colloquially known as "binding financial agreements").

Binding financial agreements (BFA) allow the parties to decide for themselves what should be done with their property without any interference from a family law court. Settlements that are formalised by way of financial agreement are fully enforceable under the Family Law Act and entitle the parties to the same stamp duty exemptions and capital gains tax rollover relief that would apply to orders made by the court.

Child Support

Child support is a vexed issue for many people, and a source of conflict that can be difficult to resolve. Typically child-support is paid pursuant to an administrative assessment made by the Child Support Agency, although it is relatively common for parties to have informal arrangements without any need to refer to the Agency. Formal assessments are made having regard to each party's taxable income and the relative time that the children are in each party's care (ie. their care percentage).

Where parties decide that they wish to come to an agreement outside of any administrative assessment, they are able to enter into a binding and enforceable document known as a "binding child support agreement". Binding child support agreement needs to be in a particular format and requires a certificate of independent legal advice to be provided to each party.

Consent orders

Parties to come to an agreement in relation to parenting matters (child custody), the division of their assets and liabilities, or issues regarding spousal maintenance, are able to file an application for consent orders with the Federal Circuit and Family Court of Australia. Filing an application for consent orders does not normally need a physical appearance in court before a Judge or a Registrar. Rather, the application for consent orders is filed online with the Commonwealth Courts Portal and is reviewed "in chambers" by a Registrar. Provided the orders sought are appropriate, the court then approves the application and sealed orders are published.

Proceeding by way of consent orders has a number of benefits in relation to family law matters. The primary benefit is one of cost savings. An application for consent orders is typically only a fraction of the cost of filing an Initiating Application and running contested proceedings through the family Court system. The speed of consent orders is also attractive. The time taken from filing an application for consent orders to publication of sealed orders is typically only a number of weeks. It is not uncommon for matters that are litigated through the family Law Courts to take two or three years to finalise (and sometimes longer).

De facto relationships

Under the family Law act, a de facto relationship exists if two people live together as a couple on a genuine domestic basis in circumstances where they are not legally married to each other and are not otherwise related by family. In determining whether or not people live together "as a couple", the court will consider circumstances including the duration of the relationship, the nature and extent of their common residence, the existence of a sexual relationship, the degree of financial dependence or interdependence, the ownership of property, the mutual commitment to a shared life together, the care and support of any children, and the reputation or public aspects of the relationship.

Typically a couple will only be considered to be in a de facto relationship if they have lived together for two or more years. There are exceptions to this however, including in circumstances where children have been born to the relationship or where significant contributions have been made to the acquisition or use of property.

Divorce

Obtaining a divorce in Australia is relatively simple. The Family Law Act 1975 provides for a no-fault divorce system. This means that there are is no requirement to prove that one party to the marriage did anything wrong, and there is no need to justify your reason for divorce. The primary prerequisite for filing a divorce is that the parties need to be separated for at least 12 months, although separation under the one roof is acceptable. A court appearance before a Registrar is sometimes, but not always, required prior to a divorce order being made.

An application for divorce is filed in the Federal Circuit and Family Court of Australia and typically takes around three months to finalise. The court requires evidence to be provided to prove the marriage, the length of separation and jurisdiction of the Australian courts to deal with the matter (Australian citizenship of at least one party for example). There are additional considerations for the court in the event that there are minor children of the marriage.

Blacktown family lawyers

Family law matters are often very stressful and legally complex. It is generally not possible to resolve matters without the assistance of a legal practitioner. When choosing a lawyer, you should ensure that each prospective solicitor or barrister has appropriate experience in family law matters generally. The New South Wales Law Society provide a scheme of recognition for specialist accreditation in various areas of law. Our principal, Dean Bainbridge, is a solicitor and a barrister. He has been practising law for more than 20 years and has been granted specialist accreditation in relation to the practice area of family law.

If you are looking for a family lawyer near you, look no further than Bainbridge Legal. We have expert family law solicitors and barristers locally available in Blacktown. If our Blacktown office is not convenient for you, we also maintain a second office in Parramatta. Call us today to book your free initial family law consultation.