Family law can be intricate and emotionally charged, demanding a set of advanced interpersonal, drafting, administrative, and advocacy skills. It also requires the ability to exercise sound judgment and propose practical solutions that suit the family’s particular circumstances.
In cases related to parenting, the court relies heavily on reports produced by social workers and psychologists, which can lead to lawyers losing control of their client’s case. The appointment of an Independent Children’s Lawyer may complicate a solicitor’s role and the reception of their client’s case. Therefore, it is always better for parties to reach a consensus regarding children’s care arrangements rather than proceeding to trial.
Concerning property matters, clients may worry that the asset pool will be depleted by prolonged court proceedings. Thus, ensuring full and frank disclosure is essential, especially when the other party has been less than transparent about their income, assets, or financial resources. In any case, mediation is generally preferable to contested hearings.
The large number of self-represented parties in family law cases can pose a challenge for solicitors. They may have to negotiate directly with the other partner or parent in hostile circumstances, which can be emotionally draining and affect the success of a settlement, mediation, or litigation.
At Taylor Rose, we pride ourselves on resolving family law cases in the most amicable and expedient manner possible. We encourage our clients to explore all alternative dispute resolution options to minimise their costs and increase the likelihood of achieving mutually acceptable orders. When a case proceeds to a contesting hearing, we strive to prepare the case as efficiently as possible while ensuring that all supporting evidence is obtained and the client’s affidavit material is presented with the utmost professionalism.
Family law in Australia is governed by the Family Law Act 1975. Family law encompasses divorce and separation, parenting matters, property settlement, binding financial agreements, child support and spousal maintenance. The family law system is uniform across all parts of Australia except Western Australia, which has its own Family Court. Family law matters in the rest of Australia are heard by the Federal Circuit and Family Court of Australia (FCFCA).
Parenting matters put in place formal arrangements for the care and parental responsibility for children. These matters are usually commenced after parents separate. The parties are generally the biological parents or adoptive parents, although other parties such as grandparents, aunts or uncles may also be involved.
When a court makes parenting orders, it must consider what is in the best interests of the child or children. It must then make orders determining who has parental responsibility for the children and who the children will live with.
Parental responsibility refers to the legal decision-making responsibilities of a parent. This includes the power and duty to make decisions about issues like the child’s education, the child’s religion and any major medical interventions the child receives. Parental responsibility may be given to one party or it may be shared between more than one party.
The person or persons that a child lives with are responsible for the child’s day-to-day care and for making everyday decisions about the child. The court may order that the child live with one party, or with more than one party.
Divorce is the legal dissolution of a marriage. In Australia, we have a ‘no fault’ divorce system, meaning that when someone applies for a divorce it is irrelevant why the relationship has come to an end. There is no need to establish that either party did anything wrong.
A divorce order will be granted if it can be established that:
It is important to note that it is possible for a separated couple to be ‘separated under one roof’. This means that in some cases the court will accept that two spouses have been separated for 12 months even if they were still living together for some or all of that period.
A party to a marriage can apply for a divorce on their own. Alternately, the separated couple can apply for a divorce jointly.
Property settlements involve the division of an asset pool between parties in accordance with the Family Law Act 1975 after a marriage or de facto relationship has come to an end.
The Act sets out a five-step test for determining each party’s entitlements. The five-step test is set out briefly below.
The Child Support Assessment Act 1989 imposes a duty on parents to contribute financially to their children’s maintenance. Child support is to be used for the children’s benefit. It may be paid as a lump sum or in the form of ongoing payments.
The amount of child support that a parent must pay is calculated based on a range of factors. These include:
Child support agreements may be made by consent between the parents and may be binding or non-binding. A binding child support agreement may only be made after both parties have received legal advice.
If a party thinks that a Child Support Assessment is unfair or needs to be changed, they may apply to the registrar of the Family Court to change the assessment.
In some situations, a party may claim spousal maintenance from their former partner upon separation. Spousal maintenance may be payable if there is a significant difference in the incomes of the parties at the time of separation and the party with the lower income is unable to support themselves because of:
If the court makes an order for spousal maintenance, the spouse with the higher income may be required to make a lump sum payment, or ongoing payments, to the spouse with the lower income.
If you require legal advice or representation in any legal matter, please contact Taylor Rose.