When navigating family law, there are a number of issues that must be considered by anyone contemplating taking legal action. Those issues generally revolve around the process of applying for divorce and whether to commence court proceedings or try to settle parenting and property matters.
At Dettmann Phair Lawyers, our family lawyers are here to assist with all complex family law matters, from divorce and child custody to domestic violence cases and more. As one of the top family law firms in Sydney, we provide quality legal advice and solutions, making sure you are given a fair and reasonable outcome for your family law matter.
The following article will go into detail about the comprehensive range of family law services we have on offer and why it is critical to get legal support from an experienced family lawyer.
As noted in the Family Law Act (1975), you must be separated for 12 months before you can divorce. After the divorce order has been made there is a strict time limit of 12 months to do any financial division, or two years for a defacto relationship.
From the date of divorce, you have 12 months to sort things out with your partner and document that in a legal way, or if you do not, you have 12 months before you have to start court proceedings.
After that time, the court says you have taken the legal step of being divorced, so people are entitled to assume they can go on with their lives and do whatever financial things they want and not assume that their spouse will seek any division of their assets.
For more information regarding how the divorce process works, contact our team of qualified divorce lawyers at Dettmann Phair Lawyers. We can assist you with any questions regarding your matter.
Out-of-court settlement and Family Court proceedings
If you can settle out of court , then for almost everyone, that is the best option. Family dispute resolution is a great way to settle your family law matter by an agreement between both ex-spouses with your ex-spouse and also while avoiding avoid court.
However, if you are reaching the time limit and no out-of-court settlement can be negotiated, sometimes you might have to start court proceedings so that you are not out of time. Then once court proceedings have started, the court itself encourages people to come to an out-of-court resolution.
Parenting and property
Best Interests the Paramount Consideration
The Court regards the best interests of the child as the “paramount” consideration when making a parenting order, and in determining the best interests, the court must take into account the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm or being exposed to, abuse, neglect or family violence.
The Court must take into account additional considerations such as:
- Any views expressed by the child
- The child’s relationship with you and your spouse
- You and your spouse’s involvement in the child’s life and ability to spend time with the child
- Other relevant considerations
The Court does not adopt a standard approach to parenting arrangements but considers the circumstances of the family in relation to each child.
Learn more about how our specialist family lawyers can help with parenting matters to ensure your child’s best interests are kept in focus.
Presumption of Equal Shared Parental Responsibility
When the Court makes a parenting order, it first applies the presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility. (Unless there are reasonable grounds to believe that a parent has engaged in family violence or abuse of the child).
An order for equal shared parental responsibility means that the major decisions for the long-term care and welfare of a child must be made jointly, such as the child’s:
- Changes to the living arrangements
Equal time, substantial or significant time
Where the presumption of equal shared parental responsibility applies, the court must consider whether it is reasonably practicable and in the best interest of the child to spend equal time or substantial and significant time with each parent.
In deciding what is reasonably practicable the court must consider:
- How far the parents live from each other
- The child’s age
- The parents’ capacity to implement arrangements for the child to spend time with each other
- The capacity for the parents to communicate with each other and resolve difficulties
- The impact that such an arrangement would have on the child
- Other relevant matters.
Views and Best Interests
If you are concerned that the child may express your spouse’s view, you may want to seek that an independent children’s lawyer is appointed or a family consultant to make independent recommendations to the court.
Whilst the wishes of a young child are unlikely to be considered, the Court may consider the child’s views. However, how the Court considers those wishes will depend on the maturity of the child and how clearly their views are expressed. The Court will consider the child’s proposed living arrangements with you and will ordinarily look at maintaining sibling bonds.
If the Court determines that there are safety concerns, then it may order supervised visits. However, it would be more likely to order that a party attend anger management and parenting after separation classes and having changeovers in a public place to minimise conflict.
Whilst you are required to make a genuine effort to resolve any parenting issues by attending family dispute resolution (FDR), if the issue cannot be resolved through FDR, then you will be issued with a s.60I certificate. This requirement can be dispensed with in cases of urgency and other matters.
You have an obligation to pay child support even if you are not spending time with the child, and you should immediately register with the Child Support Agency and start paying your child support obligations. The Court will be critical of you if you are not paying child support.
Spousal maintenance is a payment made by one spouse to the other to help the other spouse meet payment of their everyday living expenses. Your spouse might be entitled to spousal maintenance. However, they will need to show that they have a need for spousal maintenance and that you have the capacity to pay.
The Court conducts a four-step process when deciding property law matters to ensure that the orders are just and equitable. Read through our property and financial matters page to see how property settlements work.
1. Determine the asset pool
The first step is identifying and valuing the net property of the parties, including the property, liabilities, superannuation and financial resources.
2. Assess the parties’ contributions
The second step is assessing the parties’ contributions during the marriage (financial, non-financial, parenting and homemaking) and expressing the contributions as a percentage-based settlement.
Financial contribution are all monetary contributions to the relationship such as:
- The amount each person had at the start of the relationship
- Termination money
- Lotto winnings
Non-financial contributions are contributions that a party has made that have added value, for example, renovating a house. The value of the non-financial contribution can be determined by how much it would have cost to pay someone to come in and do the same thing.
Parental could be described as the amount of parenting that was done, such as helping children with homework, taking them to school, spending time with them etc. When one party works and the other cannot due to parental responsibility, it is seen as an equal contribution to the wage that the other party contributes.
Homemaker are the contributions made to the home. For example, vacuuming, cooking, washing etc. Homemaker contributions are interpreted similarly to parenting contributions.
3. Further adjustment due to present and future needs
The third step that the Court must consider is whether a further adjustment to the assessment at Step 2 needs to be made to either party based on their present and future needs.
The court will look at current and future needs including:
- Income, property and financial resources
- Physical and mental capacity to gain employment
- A parent or sole carer
- Commitments necessary to provide for themselves or a child
- Responsibilities of either party to support another person
- All parties are living a reasonable standard of living
- Duration of the marriage
- Maintenance of the property that affected the earning capacity of a party
- Need to protect a party who wishes to continue their role as a parent
- any fact or circumstance which, in the opinion of the court, should be considered.
Once the appropriate needs of each party have been identified, the court will then look at the cost of each of these needs.
4. Just and Equitable Orders
The Court must consider whether the proposed orders are just and equitable in all circumstances. This involves the Court reviewing the orders and ensuring that they are fair. This may include adjustment of the orders, including the payment of a sum of money from one party to another.
The Family Lawyers Who Are with You Every Step of the Way
Every family law dispute can be complex and emotionally distressing for all family members. With our help, we hope to make the entire process easier for you, allowing you to feel supported during this tough time.
If you are in need of assistance with your family law matter or are contemplating taking the steps associated with divorce, we can help. Whether you’re looking to commence court proceedings or try to settle your parenting and property matters, you can rely on us to guide you through your case for the best outcome.
Get in touch with our accredited and experienced family law team at Dettmann Phair Sydney Family Lawyers at (02) 9412 4500 to get started with your case.