AREAS OF PRACTICE
Family Law
PRE-NUPTIAL AGREEMENTS PROPERTY CLAIMS DIVORCE DE FACTO DOMESTIC RELATIONSHIP AGREEMENTS
TERMINATION AGREEMENTS ADJUSTMENTS OF PROPERTY INTERESTS
CHILDREN'S ISSUES LIVE WITH SPEND TIME WITH COMMUNICATION CHILD SUPPORT
Pre-Nuptial Agreements
The pre-nup became legally binding in 2000 when the federal Family Law
Act was amended to include financial agreements. The rationale is to avoid
the time, expense and pain of going to court for a property settlement.
Those with significant assets or those who will one day receive a
substantial inheritance are obvious candidates for a pre-nup.
Financial agreements are legal and binding and can be made before or
during the marriage and each must also seek independent legal advice before
signing an agreement.
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DIVORCE
You may make application for a Divorce to the Federal Magistrates Court or
Family Court if you have been separated from your partner for a period of 12
months. If you have been married less than two years you must first
obtain a Counselling Certificate under Section 44(1B) of the Act before you
file for a Divorce.
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PROPERTY CLAIMS
The Federal Magistrates Court and the Family Court have jurisdiction to deal
with property settlements between married couples. The Act requires that a
Court must be satisfied that any proposed Terms are just and equitable, in
all the circumstances, before making an Order approving the Terms (Section
79(2). Section 75(2) provides a list of matters the Court should take into
account in relation to spousal maintenance proceedings.
PROPERTY
PROCEEDINGS MUST BE COMMENCED WITHIN 12 MONTHS FROM THE DECREE NISI BECOMING
ABSOLUTE
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CHILDREN ISSUES
Section 61DA of the Act creates
a presumption that it is in the best interests of the child for the child’s
parents to have equal shared parental responsibility when making parenting
Orders. Section 61DA(2) provides grounds for the rebuttal of this
presumption. In 1995 the Family Law Act was amended to remove all references
to the words “Guardianship, Custody and Access” in children’s issues. The
words were replaced with “Residence, contact and specific issues” to
describe those person with whom the children lived or visited. As from
the 1st. July, 2006 those words have now been replaced with “live with,
spend time with and communicate with”.
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LIVE WITH These words refer to the parent with whom the children spend their day to day lives. The words can refer to a shared arrangement such as “The child shall live with the Mother from Monday to Friday each week and with the Father on Saturday and Sunday.
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SPEND TIME WITH These words refer to the time the children spend with the parent with whom they do not live. For Example “ The children shall spend time with the Father each alternate weekend from Friday 5 pm until Sunday 5 pm”.
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COMMUNICATION Again this refers to an agreement between the parents to allow either parent to telephone or write to the children whilst the children are with the other parent.
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CHILD SUPPORT
JOINT PARENTAL RESPONSIBILITY – The Family Law Act contains provisions for
the general requirement that the parents will have joint responsibility for
the long term care, welfare and development of the children.
BASIC FORMULA - The
Basic formula applies where all of the children for whom a payer has an
obligation to pay child support resides with the other parent. The Child
Support amount is calculated by obtaining the payer's most recent taxable
income less the exempted income amount (usually the basic rate of social
security pension) multiplied by the relevant percentage, depending upon the
number of children. The percentages are :
1 child
-18%
2 children
-27%
3 children
-32%
4 children
-34%
5 children
-36%
DISREGARDED INCOME -
If the carer's income exceeds the "disregarded income amount" it will impact
upon the child support assessment if the carer is a parent of the child. If
the carer is not a parent, the carer's income will not have an effect on the
formula. The "disregarded income amount" is now set at the average weekly
earnings of all employees (EAWA).
The carer's income,to the extent that it exceeds the "disregarded income amount" reduces the
liable parent's "disregarded income amount" by 50c for every dollar.
However, the carer's income amount will not reduce the assessment to less than 25% of the
assessment amount that would normally have been payable.
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DE FACTO
Section 4(1) defines a de facto relationship as a relationship between two
adult persons:
who live together as a couple, and
who are not married to one another or related by family
Section 4(2) of the Act lists a number of matters which may assist in determining
whether or not a de facto relationship exists
PROCEEDINGS MUST BE COMMENCED WITHIN A PERIOD
OF 1 YEAR FROM PUBLICATION
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DOMESTIC RELATIONSHIP AGREEMENTS
Is the term used to describe an Agreement between two persons that is made in
contemplation of their entering into a domestic relationship. The
agreement normally refers to financial matters and other matters such as
ownership of property.
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TERMINATION AGREEMENTS
This is an agreement normally between two persons that is made in
contemplation of ending a domestic (de facto) relationship. The
agreement makes provision for financial matters and the distribution of
property accrued during the relationship.
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ADJUSTMENT OF PROPERTY INTERESTS
If parties in a domestic (de facto) relationship wish to end the relationship
and cannot reach agreement on the distribution of property accrued during
the relationship, then Part 3 Division 2 of the Act makes provision for a
party to apply to the Court for an Order to adjust property interests.
A Court may make such an Order provided it is satisfied it is just and
equitable to do so and having regard to the provisions of Section 20(1).
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This publication is provided by Higgins Lawyers to its clients for their information on a complementary basis. It represents a brief summary of the law applicable as at March 2009 and should not be relied on as a definitive or complete statement of the relevant laws. Readers should not act or rely on this information without first seeking our professional advice concerning their particular circumstances
