Family Law
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More often than not, issues relating to family law are difficult and emotional. It is perfectly normal for people going through a relationship breakdown to find themselves feeling particularly stressed. Furthermore, that stress tends to becomes magnified when children are involved.
Are you in a family law dispute? Do you need to talk to a lawyer?
When you are faced with family breakdown or divorce, one of the first questions you need to consider is whether you should consult a lawyer.
Around 85 per cent of family law disputes are resolved without the court needing to make any decision. So, couples manage to sort out their family law issues without obtaining legal advice.
However, in the vast majority of cases, it is probably a good idea to seek legal advice.
A lawyer can help you understand your legal rights and responsibilities, as well as explain how the law applies in your case. In addition, they may be able to help you reach an agreement with your former partner without going to court.
It may also be beneficial to consult a lawyer when:
children are involved
you feel emotionally unprepared to handle the negotiations yourself
you are unsure of what you are entitled to
your partner has hired a lawyer
violence is a possible issue
there is likely to be a disagreement over the dividing of the property or assets
your partner is likely to want to move interstate or overseas, or otherwise far away, with your children.
How we will approach your family law matter
At Monardo Solicitors, we encourage cooperation between partners, to get the best possible outcome for our clients and their families. We also like to avoid unnecessary expense, and pride ourselves on the fact that a majority of our family law matters are settled by consent without protracted court action.
Why should you talk to us about your family law matter?
We are experienced at dealing with family law matters. Our primary objective is to cut through the legalese and explain to you in plain English your rights and obligations. In short, our priority is to help you minimise the stress associated with separation and divorce.
At Monardo Solicitors, we can advise you on:
Separation
Divorce
Child Custody
Child Support
Property Settlement
Spousal Maintenance
Financial Agreements (including Prenuptial Agreements) [link to: Financial Agreements]
Domestic Violence
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What is separation?
In family law, separation is defined as the bringing to an end of a marriage or de facto relationship.
More often than not, separation is a difficult and upsetting experience for everyone involved.
One of the most serious consequences of separation is the stress it places on children. They may experience a range of emotions that are difficult for them to deal with and talk about. They may also behave in ways that are unusual for them. In short, separation is a time when most people find they need a lot of support.
The good news is that there are a range of services, including family counselling and dispute resolution Family Law Resources, that can help you, your partner and children work adjust to your new situation.
What do you need to consider if you are separating or have recently separated?
If you are considering separation or have separated, you and your former partner will need to make important decisions about your children and your assets.
You may need to consider:
where your children will live and who will take care of them
how you and your former partner will support yourselves and your children
who will pay outstanding bills or debts
who will stay in the house
how will the rent or mortgage be paid.
These are important issues and, for that reason, you may want to talk to a lawyer. A lawyer can help you understand your legal rights and responsibilities, as well as explain how the law applies to your case.
More importantly, a lawyer should be able to help you reach an agreement with your former partner without going to court.
What are the advantages of reaching an agreement with your former partner?
If you are separating, there are a number of advantages to reaching an agreement with your former partner:
You make your own decisions, rather than having to accept those a court makes
You reduce the cost (both financial and emotional) of legal proceedings
Your ongoing relationship is likely to be better, which is especially helpful If you are parents
Communication with your former partner may improve, assisting you to resolve disputes in the future.
How do Monardo Solicitors approach separation?
At Monardo Solicitors, we understand that every separation case is different, so we will take the time to talk to you and get an understanding of your particular situation. We will then help you to work toward achieving the best possible solution for you and your family. Our emphasis is always on trying to reach an agreement with a client’s former partner. In most cases, we manage to achieve this. However, if your case has to go to court, you can be certain that you are in experienced hands.
Frequently Asked Questions
Why is the date of a separation important?
Separation is a fact that must be proved if disputed by your former partner at a later time. Therefore, it is a good idea to confirm the separation in writing and send it to the other party.
Sometimes in divorce cases and property settlement cases in de facto relationships, the date on which one of the parties can prove separation took place is crucial.
The importance of the date of separation in divorce cases
In divorce cases, the date of separation is recorded on the Application for Divorce. If you cannot prove that you separated from your spouse at least 12 months prior to filing your application, the court will not grant your divorce.
The importance of the date of separation in a de facto relationship
In de facto relationships (especially where a relationship ends around the two-year mark), the question of whether a property settlement is available can depend on which side of the two-year mark the separation took place. If the relationship was less than two years in length, then the court may not have jurisdiction under the Family Law Act 1975 (Cth) to make a decision about property. Although there may be alternative remedies available, or another basis to show that a de facto relationship existed, the date of separation may be important.
What is separation under one roof?
Separation under one roof is when a husband and wife separate but continue to live in the same home. It may be for a few days, weeks, months or years following separation.
If you and your spouse lived in the same home during part or all of the required 12 months’ separation period, you need to provide extra information to the court in the form of an affidavit (a sworn statement) proving there has been a change, gradual or sudden, in the marriage, which shows you and your spouse have separated.
If you are in the process of separating or have recently separated, it is natural that you would be stressed or upset. However, if you are feeling overwhelmed, there are a number of organisations that offer support and advice.
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What is divorce?
Divorce is the process through which you can end a marriage.
However, it is important to understand that the granting of a divorce does not decide issues about:
property and / or
maintenance or parenting arrangements for your children.
If you want to make arrangements about property or parenting issues, you can either:
make an agreement with your spouse and file it with a court, or
seek orders from a court if you and your spouse cannot reach an agreement.
It is important to be aware that if you want to apply for maintenance for yourself or for a division of property, you must file a separate application within 12 months of the date of the divorce becoming final. Otherwise, you will need the court’s permission to apply.
What is no-fault divorce?
The Family Law Act 1975 (Cth) established the principle of no-fault divorce in Australia.
This means that a court does not consider why a marriage ended. In short, it is not interested in which partner was at fault in the marriage breakdown.
What are the grounds for divorce in Australia?
The only ground for divorce in Australia is the irretrievable breakdown of the relationship (meaning that there is no reasonable likelihood you will get back together), demonstrated by 12 months of separation.
If there are children under the age of 18, you must satisfy the court that proper arrangements have been made for them.
How do you obtain a divorce in Australia?
You must have a valid marriage
In order to qualify for a divorce in Australia, you must satisfy the court that you have a valid marriage (you must provide a marriage certificate (with a sworn translation into English if the marriage took place in a non-English speaking country)).You or your partner must be present in Australia
You can apply for a divorce in Australia if either you or your spouse:
regard Australia as your home and intend to live in Australia indefinitely, or
are an Australian citizen by birth, descent or by grant of Australian citizenship, or
ordinarily live in Australia and have done do for 12 months immediately before filing for divorce.
You must satisfy the court that the marriage has irretrievably broken down
You will need to show that the marriage has irretrievably broken down. This involves satisfying the court that you and your spouse have lived separately for at least 12 months, and there is no reasonable likelihood of resuming married life.
You must serve your spouse with the relevant documents
You must satisfy the court that the other party to the divorce has been served with a copy of the application at least 28 days prior to the divorce hearing, or if they live overseas, 42 days prior to the date of the hearing
If you have children, you must satisfy the court that satisfactory arrangements have been made for their care
You must satisfy the court that appropriate arrangements have been made for any children of the relationship.
How do Monardo Solicitors approach divorce?
At Monardo Solicitors, we understand that divorce is an extremely stressful time in anyone’s life. Our primary objective is make sure you understand not only what your rights and responsibilities are but what you may be entitled to.
Most importantly, we will work with you to ensure that the process runs as smoothly as possible. In most situations, we find that we are able to come to an agreement between parties. However, if you find you need to go to court, you can rest assured that you are in the hands of a team that has had a great deal of experience in litigation.
How does our divorce form work?
Our priority is to take out as much of the stress from divorce as possible.
So, we’ve designed a form that you can fill in quickly and easily.
We will then use this information to fill in an Application for Divorce for you.
What are the benefits of this?
It will save you time and give you peace of mind because you know your Application for Divorce has been prepared by a solicitor, so will meet the requirements set out by the Family Court of Australia. There is nothing worse than being told by the Court that you need to re-file your Application for Divorce because there is a problem with your application, especially at a time when you are keen to move on with your life.
Step One: You fill in the Divorce form on this website
You simply fill in the Divorce form online and send it to us via the reply button at the bottom of the page.
Step Two: We will get back to you quickly, with a request for any supporting documentation that is required
We will review the information you’ve provided and will get back to you to discuss the details. We will also make arrangements for you to provide us with any supporting documentation.
Step Three: We will prepare your Application for Divorce
We will draft your Application for Divorce for you.
Step Four: You review your draft Application for Divorce
You review your draft Application for Divorce and let us know whether you would like us to make any amendments.
Step Five: We arrange for your to sign your Application for Divorce and have it witnessed
We arrange for you to swear or affirm your Application for Divorce (because technically it is an affidavit).
Step Six: We file your Application for Divorce with the Family Court of Australia
We arrange for your Application for Divorce to be filed in the Family Court of Australia and, in cases where you are the sole applicant, for the documents to be served on your spouse.
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Do I need to hire a lawyer to get divorced?
The divorce application process is fairly straightforward. You can either fill in the application on your own or with the assistance of a lawyer. The divorce application kit can be downloaded from the Family Law Courts website.
If you would like us to prepare your Application for Divorce, you can use our online form.
You may also feel you need the assistance of a lawyer for the more complex issues that surround divorce, such as:
child custody
child support
property settlements
spousal maintenance
domestic violence.
A lawyer will be able to advise you of your entitlements, rights and responsibilities in each of these areas.
How much does a divorce cost?
The fee for filing an application for divorce in the Federal Circuit Court of Australia is currently $845. However, on 1 July 2015, this will increase to $1195.
The Family Law Courts fees are listed here.
How do you apply for a divorce in Australia?
In Australia, the key steps in getting a divorce are as follows:
Step One: Complete the Application for Divorce
You need to complete the Application for Divorce. You can either do this by yourself or with your lawyer.
There is an Application for Divorce Kit available from the Family Law Courts website, which includes step-by-step instructions on how to complete the application.
Step Two: Sign the Application
You need to swear or affirm and sign the Application for Divorce before a solicitor or justice of the peace.
Step Three: Photocopy the Application
You must make two photocopies of the completed and signed Application for Divorce and any supporting documents.
Step Four: File
At a family law registry, you must file:
the original and two copies of your Application for Divorce
a copy of your marriage certificate.
At this point, you will need to pay a fee.
Step Five: Receive a hearing date and documents
The court gives you a file number and a time and date for a hearing.
If you and your spouse lodge the divorce application jointly, the court will keep your original Application for Divorce, and give you and your spouse a sealed copy of the application and an information brochure, Marriage, Families and Separation.
If you apply on your own, the court will keep your original Application for Divorce, and give you two copies of the sealed application and the information brochure Marriage, Families and Separation.
Step Six: Serve the documents on your spouse
If you applied on your own, you must serve the following documents on your spouse:
a sealed copy of the Application for Divorce
the brochure entitled Marriage, Families and Separation
any other documents filed with the court (except the photocopy of your marriage certificate).
These documents must be served on your spouse:
at least 28 days before the hearing if your husband or wife is in Australia
at least 42 days before the hearing date if your husband or wife is overseas.
How do you serve documents on your spouse?
You can serve documents on your spouse in two ways:
by post
by hand.
Service by post
You should only attempt service by post if you are confident your spouse will return the Acknowledgement of Service (Divorce) to you. Without this, the court cannot be sure your spouse has received the documents. If you are unsure, you should arrange service by hand.
Service by hand
You cannot serve the documents on your spouse yourself.
You must arrange for a person over 18 years of age to serve the documents on your spouse. The server can be a family member, friend or professional process server.
Step Seven: Hearing
In cases where there is no child of the marriage who is aged under 18 years, and whether you have applied solely or jointly, you are not required to attend the court hearing.
If you have made a sole application and there is a child of the marriage aged under 18 years, you must attend the court hearing unless circumstances prevent you from doing so.
Step Eight: Outcome of hearing
If your divorce application is successful, the court will grant a divorce order (decree nisi).
The order becomes final one month and one day after it is made (decree absolute). This is the point where your marriage is legally dissolved.
How long does the divorce process take?
It will take at least four months to obtain a final divorce order (formally known as a divorce certificate). However, it will take longer if there are difficulties in serving your spouse. Therefore, you shouldn’t plan a remarriage without allowing enough time for the divorce to be finalised.
Is it possible to oppose a divorce application?
If you have been separated for more than 12 months, there are few opportunities to oppose a divorce application.
You can only do so if:
there has not been 12 months of separation as alleged in the application, or
the court does not have jurisdiction.
If you do not want the divorce granted, you must complete and file a Response to Divorce (where you need to set out the grounds on which you seek a dismissal) and appear in person on the hearing date.
Do you have to attend the divorce hearing?
This depends on the circumstances of your case.
Sole or joint application with no children under 18
If you have made a joint application with your spouse, you and your spouse are not required to attend the court hearing.
Joint application with children under 18
If you have made a joint application with your spouse, you and your spouse are not required to attend the court hearing (even if there is a child of the marriage under 18).
Sole application with children under 18
If you have made a sole application and there is a child of the marriage aged under 18 years, you (the applicant) are required to attend the court hearing unless circumstances prevent you from doing so.
In cases where there is no Response to Divorce
If there is no Response to Divorce, the other party is not required to attend, although they may do so if they wish.
In cases where there is a Response to Divorce but the respondent does not oppose the application
If a respondent has completed and filed a Response to Divorce, but does not oppose the application, they do not need to attend the hearing.
In cases where there is a Response to Divorce but the respondent does oppose the application
If a respondent has, in a Response to Divorce, opposed the application, they must appear in person on the hearing date.
Is the divorce process different for couples who have been married for less than two years?
Yes. If you have been married for less than two years and want to apply for a divorce, you must either:
attend counselling with a family counsellor or nominated counsellor to discuss the possibility of reconciliation with your spouse, or
if you have not attended counselling, seek the court’s permission to apply for a divorce.
The two years are calculated from the date of marriage to the date of applying to the court for a divorce. You and your spouse must also have been separated for at least 12 months before applying for a divorce.
If you married overseas, can you get a divorce in Australia?
You can apply for a divorce in Australia even if you were married overseas, as long as your or your spouse:
are an Australian citizen or resident
regard Australia as your permanent home.
You will need a copy of your marriage certificate. If your marriage certificate is not in English, you will need:
an English translation of the marriage certificate
an affidavit from the translator that:
states their qualifications to translate
attaches a copy of the marriage certificate
attaches the translated marriage certificate
states that the translation is an accurate translation of the marriage certificate
states that the attached copy of the marriage certificate is a true copy of the marriage certificate translated.
If you can’t find your spouse to serve a divorce application, what can you do?
If you have taken all reasonable steps to serve your divorce application on your spouse and you are unable to do so, you can apply to the court for:
substituted service, or
dispensation of service.
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What is the main objective of family law in relation to children?
Any issues relating to child custody or parenting arrangements fall under the Family Law Act 1975 (Cth). Rather than talk about ‘child custody’, the legislation presumes that each parent has ‘equal shared parental responsibility for the child’ and focuses on the issue of ‘parental responsibility’.
The principal objective of the legislation is to ensure that the child’s best interests are met, by:
being protected from physical or psychological harm (the highest priority)
having both parents involved in their lives in a meaningful way.
What are the different types of parenting agreements?
The law encourages parents and other people interested in a child’s welfare to agree on the parenting arrangements for the child. These include:
a verbal agreement between you, with nothing in writing
a written agreement, known as a parenting plan, which is not enforceable by law
a consent order (which is an agreement in writing, signed, witnessed and filed with the court and enforceable by law).
What is a parenting plan?
A parenting plan is a written, signed and dated agreement that sets out the care arrangement for the child.
A parenting plan is not legally enforceable but a court will consider your most recent parenting plan if you apply for orders later.
You do not have to go to court to formalise a parenting plan. However, you can have a court turn your parenting plan into a consent order if you wish which becomes enforceable.
What happens if you can’t reach an agreement with your spouse about parenting?
If you can’t reach an agreement, you’ll need to apply to the court for a parenting order.
What is a parenting order?
A parenting order is a set of orders made by a court about parenting arrangements for a child. When a parenting order is made, each person affected by the order must follow it.
A parenting order outlines the responsibilities of parents and other carers. It may cover:
where the children live
who the children spend time and communicate with
any other issues, such as schooling or medical treatment.
The court can make parenting orders by consent or after a trial or hearing (a court order).
If the situation is urgent, you can apply for urgent interim parenting orders.
How do Monardo Solicitors approach child custody (parenting arrangements)?
At Monardo Solicitors, we understand that issues relating to child custody and parenting arrangements can be particularly difficult, and a source of a great deal of anxiety and tension when a relationship breaks down.
As a result, we will focus on providing you with not only the best possible advice but the help you need to reach the best possible agreement with your spouse or partner on this issue. Most importantly, we will work with you to ensure that any agreement takes into account the best interests of your children.
Finally, if the matter goes to court, you will know you are being represented by lawyers with a great deal of experience in these kinds of cases.
How does our child custody form work?
If your child custody issue is relatively straight forward, you may wish to use our child custody form. Using the form will help minimise the costs of reaching a formal agreement regarding child custody issues with your spouse.
Step One: You fill in our online child custody form.
You simply fill in the online child custody form providing us with the background information about your case and send it to us via the reply button at the bottom of the page.
Step Two: We get in touch with you quickly, to discuss your case.
Frequently Asked Questions
Who can apply for a parenting order?
You can apply for a parenting order if you’re the child’s parent, grandparent, or any other person concerned with their welfare.
Both parents must be part of the agreement or order.
If each person involved in the parenting orders does not agree to the application, the court may ask for a report from a family consultant or social worker on how the order would work in practice. This helps the court decide which orders are in the child’s best interests.
What does the court consider when making parenting orders?
In deciding parenting applications, the court has a paramount duty to consider what is in the child’s best interests.
When considering this, the court must take into account two levels of considerations – primary and additional.
Primary considerations include:
the benefit to the child of having a meaningful relationship with both parents
the need to protect the child from physical or psychological harm resulting from being subjected or exposed to abuse, neglect or family violence.
Additional considerations include:
the views the child has expressed (taking into account their maturity and level of understanding)
the nature of the relationship of the child with each parent and with other persons (including grandparents)
the extent to which each of the parents has taken, or failed to take, the opportunity to participate in decisions about major long-term issues in relation to the child, to spend time with the child and communicate with the child
the extent to which each of the child’s parents has fulfilled the obligation to maintain the child
the effect of any changes in the child’s circumstances (including the effect of separation from either parent, other children or other persons (including grandparents)
the practical difficulty and expense of a child spending time with and communicating with a parent, and whether that difficulty and 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 other persons (including grandparents) to provide for the child’s needs
the maturity, sex, lifestyle and background of the children and their parents
if the child is Aboriginal or Torres Strait Islander, the right to enjoy their culture with others who share that culture
the attitude of the parents to the child and the responsibilities of parenthood
whether there have been any incidents of family violence
whether there have been any family violence orders
whether the order is likely to resolve issues, rather than lead to further litigation
any other factors that the court deems relevant.
What is ‘equal shared parental responsibility’?
When the court makes an order that states there shall be ‘equal shared parental responsibility’ for the child, it means that the parents should jointly make decisions about major long-term issues. These include:
the child’s education
the child’s religious and cultural upbringing
the child’s health
the child’s name
changes to the child’s living arrangements that make it significantly more difficult for them to spend time with a parent.
What affect does parental conflict have on children?
Research indicates that in families where there is a high level of conflict and animosity between parents, children are at a greater risk of developing emotional, social and behavioural problems, as well as difficulties with concentration and educational achievement.
Frequent and intense conflict between parents has a negative impact on a child’s sense of security, which affects their relationships with their parents and with others.
Parental conflict that focuses on children has also been linked to adjustment problems, particularly when children blame themselves for their parents’ problems.
The kind of ‘good quality parenting’ that reduces the impact of conflict includes providing the following:
structure
warmth
emotional support
positive reinforcement.
The types of parental behaviours that have been identified as problematic for a child include:
asking children to carry hostile messages to the other parent
asking intrusive questions about the other parent
creating a need in the child to hide information
creating a need for children to hide positive feelings for the other parent
putting down the other parent in the child’s presence.
If you believe that your child is being adversely affected by your separation or divorce, there are a number of organisations that offer support and advice.
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What is child support?
The breakdown of a family is a very difficult time for everyone involved. However, it is a particularly difficult time for children. As a result, when you separate, suitable arrangements need to be made for their ongoing financial, physical and emotional care.
Under Australian law, the primary carer of a child or children can make a claim for child support from the other parent. The idea behind this is to maintain the welfare and the best interest of the child or children.
Child support is payable for all children (up to the age of 18) living in Australia whose parents have separated, whether or not the parents were married to each other.
What is the Chid Support Scheme?
The Child Support Scheme is to ensure objectively that children receive an adequate level of financial support from both parents following separation.
The Child Support Agency (CSA) was set up in 1988 to administer the assessment and collection of child support under the Australian Government’s Support Scheme.
In 2011, the CSA became one of the master programs of the Department of Human Services. It is no longer an independent government agency.
Child Support is now a service delivery brand within the Department of Human Services and is responsible for administering the Child Support Scheme.
Child Support helps parents take joint responsibility for the financial support of their children by:
assisting to calculate how much child support should be paid, based on the parents’ financial ability to do so and also the percentage of care each parent is providing.
facilitating the collection and transfer of child support payments.
In Australia, there are two pieces of legislation that cover child support. They are:
the Child Support (Assessment) Act 1989 (Cth), which deals with the assessment process
the Child Support (Registration and Collection) Act 1988 (Cth), which deals with collection and enforcement issues.
How does the Child Support Scheme (CSS) work?
A separated family may have child support assessed under:
a formula assessment
an agreement
a court order registered with Child Support.
What are the different categories of child support payments?
There are three different categories of child support:
periodic payments
non-periodic payments
lump sum provision.
What are periodic payments?
Periodic payments are payments of a regular amount on a recurring or cyclical basis.
What are non-periodic payments?
In cases where a court of agreement makes an order for non-periodic payments (for example, payment of school fees to third parties), it must state whether or not these will reduce the annual rate of child support payable.
What is a lump sum provision?
A lump sum provision is a payment made to the other parent as a ‘credit balance’ to be used to meet ongoing liabilities. When such a sum is paid, the court or agreement must specify the percentage of these liabilities to be met by drawing on the lump sum.
What are the two types of child support agreement?
There are two types of child support agreement:
limited agreements for child support
binding agreements for child support.
What are limited agreements for child support?
Limited agreements for child support are formal agreements that are in writing and signed by both parents.
You do not need to seek legal advice before entering into a limited agreement.
A limited agreement must be lodged for acceptance with the Department of Human Services and accepted by the department before it can have any affect.
Before Child Support can accept a limited child support agreement:
there must be a child support assessment in place
the annual rate payable in the agreements must be equal to, or more than, the annual rate of the child support assessment.
A limited agreement cannot be varied but can be ended by a binding agreement or a court order.
One of the parties can give notice to the registrar after three years to terminate the agreement.
At any time, a party can obtain a notional assessment of child support, and if the notional child assessment changes by more than 15 per cent from the provision of periodic child support in the agreement, then the agreement can be unilaterally terminated.
What are binding agreements for child support?
Binding agreements for child support are signed by both parents. Before signing a binding agreement, you must get advice from a legal practitioner who has been admitted by the Supreme Court of an Australia state or territory and holds a current practising certificate.
The legal practitioner must provide a statement they have provided the parent with independent legal advice and the agreement must include an acknowledgement of this advice.
A binding child support agreement can be made and accepted even if a child support assessment has not been conducted. The agreement can be made for any amount that both parents agree to.
A binding agreement cannot be varied and can only be terminated. Under the Child Support (Assessment) Act, the grounds for terminating a binding agreement are limited. This means that when you draft a binding agreement, you need to ‘think ahead’. Specifically, you need to consider the contingencies, such as changes in the financial circumstances of the parties, unemployment or changes in care arrangements.
A binding agreement can be ended by:
another binding child support agreement
a court order.
How do Monardo Solicitors approach child support?
At Monardo Solicitors, we understand that the issues surrounding child support, particularly the formula used to calculate child support payments, can be confusing and difficult to understand. We have a great deal of experience in not only guiding clients through the child support application process but in objecting to decisions. Most importantly, we pride ourselves on being able to explain this complex area of law in clear and plain language.
Frequently Asked Questions
What is the child support formula?
The child support formula is the formula used to calculate your child support payments.
The formula is flexible and attempts to take into account many different family circumstances. In this way, it aims to provide a balanced way of working out child support payments.
The key principles are:
Both parents’ incomes are considered equally.
A self-support amount is deducted from each parent’s income before child support is worked out.
The percentage of care each parent is providing is taken into account.
Children from first and subsequent families are treated in a similar way.
You should be aware that child support payments and the Family Tax Benefit (FTB) are closely linked. You may need to apply for a child support assessment in order to receive more than the base rate of the FTB Part A, and the amount of child support payable may affect how much FTB you receive. In short, the more child support you receive, the less FTB you may receive. Likewise, the less child support you receive, the more FTB you may receive.
The basic formula used by the Department of Human Services (which applies to parents with one child support assessment and no other dependent children) has eight steps:
Step One: Calculate each parent’s child support income (a parent’s adjusted taxable income minus a self-support amount).
Step Two: Add both parents’ child support incomes to get a combined child support income.
Step Three: Divide each parent’s individual child support income by the combined child support income to get an income percentage for each parent.
Step Four: Work out each parent’s care percentage of the child (using the care and cost table).
Step Five: Work out each parent’s cost percentage of the child (using the care and cost table).
Step Six: Subtract the cost percentage from the income percentage for each parent. The result is called the child support percentage.
If it is a negative percentage, that parent is assessed to receive child support because their share of the costs of raising the children is more than met by the amount of care they are providing.
If it is a positive percentage, that parent is assessed to provide support because they are not meeting the entire share of the costs of the child directly through care.
Step Seven: Work out the cost of each child based on the parents’ combined child support income (using the care and cost table).
Step Eight: The final child support payable is calculated by multiplying the positive child support percentage by the costs of the child. The final figure is the child support amount the paying parent needs to transfer to the other parent.
What is the ‘child support period’?
A child support period is the length of time a child support period applies. It can last up to 15 months or can be shorter. It depends on the circumstances of your case.
At the end of a child support period, the Department of Human Services will start a new assessment for the next period, taking into account changes in income and the cost of living.
Can non-parent carers be entitled to child support?
In certain situations, people other than the parents care for children. In these cases, you may be able to receive child support from both the child’s parents.
You can apply for a non-parent carer child support assessment if all of the following conditions apply:
you care for the child 128 nights or more a year (35 per cent or more of the care)
you are not in a domestic relationship with either of the child’s parents
you do not have care jointly with a parent of the child
you are seeking payment from a person who is a parent of the child and resident in Australia, or a reciprocating jurisdiction, on the day you apply
the child’s parents have consented to you caring for the child, unless it would be unreasonable for the parents to care for the child.
Can you object to a decision made in relation to your child support?
Yes, you can object to a decision made about your child support.
If you wish to object to a child support decision, you can lodge a request in writing that the Department of Human Services formally review the decision.
At this point, the department undertakes an internal review of the decision.
The Child Support Guide has a full list of decisions to which you can object and appeal.
How long do you have to object?
You have 28 days to object from the date you received the decision letter from the Department of Human Services.
If you live overseas, you have 90 days to object.
Can you appeal a decision regarding your objection?
Yes, you can appeal an objection decision by lodging an appeal with the Social Security Appeals Tribunal (SSAT).
If you do not agree with the SSAT decision, you may be able to appeal to the Administrative Appeals Tribunal (AAT).
Before you appeal to the SSAT or the AAT, you should seek legal advice.
Can Child Support enforce its decisions?
Yes, Child Support will enforce the payment of outstanding child support payments in the following situations:
where there is little or no evidence of a parent’s commitment to meeting their child support responsibilities
there is evidence of fraud.
What methods does Child Support use to enforce its decisions?
Child Support uses a number of methods to enforce child support decisions.
Employer deductions of arrears
If you are a paying parent and you refuse to pay child support or enter into a satisfactory payment arrangement, Child Support can ask your employer to make child support deductions from your pay.
Deductions from social security pensions and other benefits
Child Support can also arrange for deductions to be made from social security pensions and other benefits.
Enforcing tax return lodgement
In order to ensure the incomes Child Support uses to calculate assessment, it works closely with the Australian Taxation Office (ATO) to improve the rate and timeliness of parents’ tax return lodgements.
Intercepting tax refunds
The ATO advises Child Support when a tax refund is available to a child support parent and is about to be paid. Child Support may take the refund and apply it to meet an outstanding child support payment.
Intensive debt collection
Child Support may use intensive debt collection activities to manage parents who have outstanding payments that have proven difficult to collect.
Issuing overseas travel bans
If a paying parent plans to travel overseas, has overdue child support and refuses to work with Child Support to pay the overdue amount, it can prevent the parent from travelling overseas by issuing a departure prohibition order.
Litigation
In cases where other enforcement methods have not worked and where an asset or income stream is identified in the parent’s name, Child Support will take the parent to court to collect outstanding child support payments.
Can you apply to have your child support assessment changed?
If your circumstances have changed and you believe your child assessment does not reflect your current situation, you may be able to ask Child Support to review your assessment in special circumstances.
What happens if your partner or spouse lives overseas?
If one parent lives overseas, Child Support may still be able to collect and transfer child support payments for their children’s benefit.
Child Support can also help separated parents set up child support arrangements for their children when one parent lives in another country.
Australia has arrangements for child support with a number of countries. These are known as reciprocating jurisdictions.
What is the end date for child support assessments in Australia?
In Australia, the end date for child support assessments occurs when the child turns 18. However, it may be extended where a parent has applied for child support to continue until the end of the school year in which the child turns 18.
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What is a property settlement?
A property settlement is an agreement between spouses that provides for the division of their assets between them in the event of a relationship breakdown.
It is important to understand that, under Australian law, there is no presumption that assets must be divided equally between husband and wife. Nor is there any formula used to divide your property.
Instead, the Family Court’s objective is to make orders for a ‘just and equitable’ division of assets. This means that, if the matter goes to court, a decision is made after all the evidence is heard, and the judicial officer decides what is just and equitable based on the unique facts of your case.
What are the various ways you can achieve a property settlement?
You can achieve a property settlement in the following ways:
You and your former spouse or partner can agree on how your property should be divided without any court involvement.
You can seek to formalise your agreement by applying in the Family Court for consent orders.
If you cannot reach an agreement, you can apply to the court for financial orders, including orders relating to the division of property and payment of maintenance.
What assets are included in a property settlement?
The assets that are included in a property settlement include:
real estate
savings
shares
furniture
valuables.
Is it possible to reach a property settlement agreement outside of court?
Yes, it is possible to reach a property settlement outside of court. In fact, it is often desirable because this can save both time and energy. Most importantly, it can reduce your legal costs.
This can be done in two ways:
entering into a binding financial agreement
obtaining consent orders.
What is a financial agreement?
Binding financial agreements are written agreements that are recognised under the Family Court Act 1975 (Cth).
A financial agreement can cover a range of financial issues, including the:
division of property
division of superannuation
maintenance of either spouse.
It is a legal requirement that both parties received independent legal advice before signing an agreement.
What are consent orders?
Like a financial agreement, consent orders are written agreements that can cover a range of financial issues, including the:
division of property
division of superannuation
maintenance of either spouse.
Consent orders will be formalised by the Family Court of Australia if the court is satisfied that the terms of the agreement are ‘just and equitable’.
What happens if you cannot reach an agreement regarding your property settlement?
If you have separated and cannot reach an agreement regarding property, you will need to lodge an application for property orders in the Family Court of Australia or the Federal Magistrates Court.
The outcome will be decided through a court hearing.
These orders must be made within 12 months of the divorce or end of a de facto relationship.
What does the court consider when assessing a property settlement?
When deciding how property should be divided, the Family Court considers four key questions:
What is the ‘net asset pool’ of both former partners?
A net asset pool includes the value of all of the property owned by the former partners, and includes property obtained before or during the marriage or de facto relationship or after separation.
What are the financial contributions from both former partners? What are the non-financial contributions have been made by each partner?
What are the ‘future needs’ of both former partners?
In examining what the future needs of both former partners are likely to be, the court looks at issues such as: age, future parenting responsibilities, income, financial stability and new relationships.
Is the proposed property settlement ‘just and equitable’ to both former partners?
How does Monardo Solicitors approach property settlements?
At Monardo Solicitors, we understand that reaching a ‘just and equitable’ property settlement can be a difficult and stressful experience. In addition, the process can be complex, especially if superannuation is involved. For that reason, it can help to have an experienced lawyer guide you through the process, especially if you need to go to court.
How does our property settlement form work?
If your property settlement issue is relatively straight forward, you may wish to use our online property settlement form. Using the form will help minimise the costs of reaching a formal agreement regarding property settlement issues with your spouse.
Step One: You fill in our online property settlement form
You simply fill in our online property settlement form providing us with the background information about your case and send it to us via the reply button at the bottom of the page.
Step Two: We get in touch with you quickly, to discuss your case.
Frequently Asked Questions
How is superannuation considered a property settlement?
Superannuation is taken into consideration in the context of the overall property settlement and is assessed in the same way as other forms of property.
Superannuation is considered irrespective of whether it was acquired before or during the marriage or de facto relationship or after divorce or separation.
Superannuation is not subject to an automatic 50/50 division.
The court will make its final decision in relation to superannuation on the basis that the settlement is ‘just and equitable’.
When dividing superannuation, there are two main issues that are considered:
how the superannuation interests should be valued
how superannuation payments should be split.
What should you do if you are separating and don’t know much about your financial situation because you left the management of your finances to your spouse? Can you still get a property settlement?
It is reasonably common for one person in a relationship to be primarily responsible for the couple’s finances. When you are separating, this can become a problem for the other person because a lawyer will need to know what they own in order to advise them on the property settlement.
If you are in this situation, you should get legal advice as soon as possible. Ideally, this should be when you are considering separating, but prior to it occurring. This means that a lawyer can guide you as to what questions you should ask your spouse while you are still together. It will also enable you to look out for the relevant documents and take copies.
It is important to note that although getting advice later is not ideal, it is far from a disaster. Family law in Australia places an obligation on each party to make full and drank disclosure of their financial circumstances to the other party.
Can the Family Court make decisions about property settlements in the case of de facto relationships?
The Family Law Courts can now make orders in relation to financial matters following the breakdown of eligible de facto relationships. Previously, these courts could generally only make orders in cases where parties were married (except in the ACT and the NT). Instead, financial disputes between former de facto partners were generally dealt with by state and territory courts, using the law applicable in that state or territory.
The Family Law Courts can now order a division of any property that the couple own, either separately or together.
Superannuation that each partner has can be split.
The Family Law Courts can also make orders in relation to spouse maintenance.
In order to make such orders, the Family Law Courts must be satisfied of one of the following:
the period (or the total of the period) of the de facto relationship is at least two years
there is a child of the de facto relationship
one of the partners made substantial financial or non-financial contributions to their property, or as a homemaker or parent, and serious injustice to that partner would result if the order were not made, or
the de facto relationship has been registered in a state or territory with laws for the registration of relationships.
How do the Family Law Courts define de facto relationships?
A de facto relationship is a relationship that two people who are not married or related by family have as a couple living together on a ‘genuine domestic basis’.
It can exist between two people of the opposite sex, or between two people of the same sex.
All the circumstances of the relationship will determine whether a couple have a de facto relationship. These include:
the duration of their relationship
the nature and extent of their common residence
whether a sexual relationship exists
the degree of financial dependence or interdependence, and any arrangements for financial support, between them
the ownership, use and acquisition of their property
their degree of mutual commitment to a shared life
whether the relationship has been registered, in a state or territory with laws for the registration of relationships
the care and support of children, and
the reputation and public aspects of their relationship.
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Get legal advice as quickly as possible
If you are about to separate, it is advisable to get legal advice as soon as possible. This doesn’t mean that you have decided to enter into a major battle with your former spouse. Instead, it can help avoid a major conflict developing further down the track. Good legal advice will help you understand both your rights and responsibilities. It can also help you avoid any major pitfalls.
How should you communicate with your family lawyer?
It is important to understand that communication is crucial in any client/lawyer relationship. As a result, it is important to remember the following:
Don’t avoid saying something because you are embarrassed about it. Most experienced family lawyers have listened to many stories, ranging from the heartbreaking to the hilarious. Your lawyer is there to help you. They are not there to judge you.
Make sure you are upfront and honest, even if you have done something that you regard as ‘bad’. You lawyer’s job is to protect you and they need all the relevant information.
It is important to remember that your lawyer is not your counsellor, so, even if it is hard, try to recognise the boundaries of the relationship. Your lawyer can refer you to a counsellor, if necessary.
Keep in mind the key principles behind family law
Family law matters are always stressful, even in cases where the decision to end the marriage is amicable. To make matters worse, the emotional stress associated with a breakdown of a relationship is often aggravated by the financial implications of separation and divorce.
The situation becomes even more complicated when children are involved.
Family law in Australia is based on two key principles:
no-fault divorce
that when deciding parenting disputes, the best interests of the child are the most important consideration.
At Monardo Solicitors, we are committed to these principles. We also believe that it is important for you to be aware of these principles because not only will it help you understand how the Family Courts in Australia approach divorce, child custody and property settlements, it will help you approach your relationship breakdown and surrounding issues with a cool head.
Any relationship breakdown is upsetting. You will probably feel that you need a great deal of support from family and friends. If you find you are not coping emotionally or psychologically, then you should consider seeking professional help.
At the same time, you should do your best to approach any negotiations that relate to the divorce, child custody and property settlement practically, rather than emotionally. Your objective is to achieve the best possible outcome for your family, especially your children. In short, it is not the time to be vindictive or bitter. It is definitely not the time for revenge. The best strategy is to focus on the future and building a new life.
Be organised
In any legal matter, it helps if you are organised, especially in relation to any paperwork that may be needed by your lawyers or the court.
Ideally, you should handle as much of the administrative work as you can. This includes collating documents, making multiple photocopies of documents your lawyer needs and preparing chronologies
First, it will help your matter to move forward as quickly and smoothly as possible.
Second, it will save you money in legal fees because your lawyer won’t have to charge you for the kind of administrative work you could have done yourself.
If you need to appear in court, what should you wear?
There is no formal dress code for parties appearing in court. However, it is important to dress in a way that is respectful. There is no need to wear a suit, but you can wear one if you feel comfortable doing so. Otherwise, it is fine to wear smart casual clothing.
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If you are in the process of separating or divorcing, you should be aware that there are a number of organisations that can provide you and your children with support during this difficult time.
beyondblue
beyondblue works to reduce the impact of anxiety, depression and suicide in the community by raising awareness and understanding, empowering people to seek help, and supporting recovery, management and resilience.
phone: 1300 224 636
website: www.beyondblue.org.au
Family Relationships Advice Line
The Family Relationship Advice Line has a range of fact sheets and other information on family law services including children’s contact services; counselling; family dispute resolution; parenting orders program; post-separation cooperative parenting; and supporting children after separation.
phone: 1800 050 321
website: www.familyrelationships.gov.au
Kids Helpline
The Kid’s Helpline provides telephone counselling for children and young people.
phone: 1800 551 800
website: www.kidshelp.com.au
Lifeline
Lifeline provides 24/7 crisis support and suicide prevention services.
phone: 13 11 14
website: www.lifeline.org.au
MensLine Australia
MensLine is a professional telephone and online support and information service for Australian men.
phone: 1300 789 978
website: www.mensline.org.au
National Sexual Assault , Family and Domestic Violence Counselling Line
The National Sexual Assault, Domestic Family Violence Counselling Service provides a national counselling helpline for people experiencing sexual assault or domestic and family violence.
phone: 1800 737 732
website: www.1800respect.org.au
Australian Childhood Foundation
The Australian Childhood Foundation provides counselling for children and young people affected by abuse.
phone: 1800 176 453
website: www.childhood.org.au
Relationships Australia
Relationships Australia offers counselling. family dispute resolution (mediation) and a range of community support and education programs.
phone: 1300 364 277
website: www.relationships.com.au
Translating and Interpreting
Phone to gain access to an interpreter in your own language.
phone: 131 450
website: www.tisnational.gov.au
Headspace
headspace is the national youth mental health foundation. It helps young people who are going through a tough time. There are 55 headspace centres allocated across the country where young people (12-25 years) can access a range of services.
website: www.headspace.org.au
ReachOut.com
ReachOut.com offers a mental health service for young people. It helps young people get the help they need, where and when they need it.
website: au.reachout.com
Our Place Online
Our Place Online is a forum for men and women who have suffered abuse in all its forms: psychological, verbal, physical, sexual and spiritual. The forum is run by a community of volunteers from all over the world. It aims to help educate and support those wishing to heal from the damage done.
website: www.our-place-online.net
Shared Parenting Council of Australia
The Shared Parenting Council of Australia was incorporated in September 2002 as a representative body for a range of Parent, Children, Church and Family Law Reform organisations who share the common purpose of prescribing in law, every child’s fundamental human right to an equal opportunity and relationship with both their Mother and Father following parental separation or divorce.
website: www.familylawwebguide.com.au/spca/pg/start
Dads in Distress
DIDSS offers peer support* that aims to provide help and hope for separated dads and their families. You can talk with someone who has personally experienced separation… and discover what it might take for you to get through it!
website: www.dadsindistress.asn.au/
Depression and Addiction Rehab