Family Law – McNamara Law

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We get that separation, and everything that follows is diﬃcult.

At McNamara Law all Family Law matters are treated on a case by case basis. You will always receive personal attention and understanding of your situation. We aim to resolve your matter in the most cost-efficient and effective way, ensuring your rights and the rights of your children are protected.

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Divorce means the ending of a marriage, and is separate to doing a property division and to making parenting arrangements for children.

In Australia there is a “no fault” system of divorce with the only condition to seeking a Divorce is that the parties to the marriage have been separated for 12 months.

Once you have been separated for 12 months you can institute proceedings for Divorce. A joint application (signed by both parties) can be made if the parties agree to make the application. If there is no agreement in relation to parenting or property settlement matters, you can file your divorce application as soon as the 12 months after separation has expired.

N.B once your Divorce becomes absolute that you only have 12 months in which to institute proceedings for property settlement otherwise you will only be able to seek property settlement if you are given a time extension by leave of the Court (which may be refused or granted depending on the circumstances).

Frequently asked questions

Q: Can I make an application for divorce while still living under the same roof as my ex-partner?

A: Divorce Applications can be made while parties have been separated but living under the same roof, or where there has been a period of resuming the relationship and further separation.

Q: I would like to know more about the process

A: A Divorce Application is filed in the Federal Circuit Court and there is a filing fee payable to the Court. In certain circumstances the Applicant can apply to the Court for a reduction in the filing fee.

Once the Application is filed in the Court, the registry will nominate a Court date.

If the Application is made solely by one party without the other party signing the application, it will need to be served on the other party. Service can initially be attempted either personally or by post, however, if the party being served does not sign and return an acknowledgement of service they will have to be served personally.

If you are the sole Applicant, and there are children under the age of 18, you will need to appear at the Court date. If there are no children under 18 the Court can consider the application on the papers without the need for either party to appear as long as service on the other party has been proved.

If you are a Respondent to an application and have been served with the application, you only need to appear in Court or file material in response of the application if you object to the Divorce being granted.

One month after the Court date the Divorce becomes absolute. The Court then posts the Divorce Order to the parties at their nominated address for service.

When there is a dispute over children, The Family Law Act sets out what the Court considers when determining what is in the best of interest of children.

There are two primary considerations:

The benefit to the children of having a meaningful relationship with both of the children’s parents; and
The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

The Court will prioritise the protection of children from a risk of harm over the need for them to have a meaningful relationship with both parents.

We at McNamara Law endeavour to assist you to reach an outcome that will ultimately benefit your children and yourself in the years to come.

Frequently asked questions

Q: Factors considered for shared parental responsibility

A: Courts will initially consider whether it is appropriate for both parents to make long-term decisions for the child (called equal shared parental responsibility). Sometimes it is appropriate for one parent to make long term decisions if the parents have no ability to communicate with each other for example.

If the Court puts in place equal decision making, the Court must consider whether it would be in the child’s best interests and if it is reasonably practicable for the child to spend equal time with each parent.

If equal time with each parent is not in the child’s best interests or not reasonably practicable then the Court will consider if significant and substantial time with the non-resident parent is appropriate.

In any other circumstance, the Court will consider what arrangements for living and spending time with each parent is in the children’s best interests.

The factors considered in working out whom children will live with and what time they will spend with the other parent are very complicated and we recommend obtaining an independent legal advice based on your particular circumstances.

Q: Domestic violence

A: Any Court takes the issue of family violence very seriously. Family violence does not have to involve the children for it to be a relevant consideration of the Court.

Domestic/family violence can include emotional and financial abuse, harassment, intimidation and other inappropriate behaviour. You should carefully consider whether you should consult a solicitor to make Application for a Protection Order if you are the subject of domestic/family violence.

Q: Managing the effects of a relationship breakdown

A: Going through a relationship breakdown and attempting to resolve childrens issues can be an extremely stressful time. It may be beneficial to consult your General Practitioner for some options to manage the effect of a relationship breakdown. You may be entitled to free counseling through Medicare or your health insurance. This is also particularly relevant to the children of the relationship who may be in more need of counselling than the parties themselves.

To promote stable and co-operative parenting into the future it is best for parents to agree what time the children will spend with each parent. If the parents are able to reach an agreement then parenting arrangements can be recorded in a non-binding Parenting Plan or binding and final Consent Orders. A family law solicitor will be able to advise on the best option for your particular circumstances.

However, sometimes it is not possible for parents to reach an agreement in relation to the time that the children are going to spend with each parent. In these circumstances the parents are required to first consider mediation either with the assistance of a family law solicitor, through a Family Dispute Resolution Centre or through a service that offers mediation such as Relationships Australia, the Salvation Army or Lifeline.

Q: Unable to resolve disputes and Court proceedings

A: If no agreement is reached, then you would have to consider instituting Court proceedings. For disputes involving children you are required to file a 60I Certificate from a Family Dispute Practitioner to certify that you have attempted mediation.

In some circumstances, such as urgency, the existence of family violence or that the children are in a situation that is dangerous, it may not be appropriate for the parties to attend mediation. In those circumstances the relevant party can apply directly to the Court, and it is up to the Court whether they deem that your matter is suitable to be listed without the need for a 60I Certificate.

Serious thought should be given to the issue of instituting Court proceedings as it can be a long drawn out, emotionally draining and extremely costly exercise to go to Court and argue over arrangements for what time the children will spend with each parent.

Binding Financial Agreements

A Binding Financial Agreement (commonly referred to as a BFA) is a useful tool that allows couples, whether married or de facto, to formally record how to divide their assets, financial resources and liabilities in the event their relationship breaks down.

A BFA can be done prior to the commencement of a relationship, during a relationship, or after a relationship by agreement of the parties.

The effect of a BFA is to make a binding contract that effectively displaces or overrules the Family Court process (if the BFA has been validly made).

Frequently asked questions

Q: People commonly consider entering into Binding Financial Agreements before or during a relationship to achieve the following

A: Protecting assets which you have worked hard to accrue prior to entering into the relationship;

Protecting your future income in the event the relationship breaks down;

Taking proactive steps so that both parties to the relationship can implement their own ‘rules’ as to how their assets, liabilities and financial resources which they bring into the relationship are dealt with rather than subjecting themselves to a decision imposed upon them by the Court;

To protect or quarantine specific assets, such as an inheritance obtained prior to entering into the relationship.

Binding Financial Agreements can be used to formally divide assets after the end of a relationship, and are commonly used to provide, or to prohibit, spousal maintenance being payable by the parties.

Q: Who can enter into a Binding Financial Agreement?

A: Binding Financial Agreements can be entered into by both heterosexual and homosexual couples, in addition to both de facto and married couples.

It is important for both yourself and your partner to seek expert advice when considering entering into a Binding Financial Agreement to ensure that the document which you are paying for is ultimately enforceable at law pursuant to the Family Law Act.

If either party to a Binding Financial Agreement does not obtain appropriate advice prior to the execution of the document, the Court will make a finding that the Binding Financial Agreement will be found to be not a binding document. This could then result in all assets (including those brought into the relationship) being considered to be assets of the relationship and available to be taken into consideration in a property settlement.

The consideration and advice involved with a BFA is a big deal, as the Court has effectively allowed lawyers to write a document that avoids the Family Law Act provisions for property settlement or spousal maintenance, but only if the document is drafted and executed correctly and the parties have been appropriately advised.

Should either party to the Binding Financial Agreement attempt to challenge the validity of the document, the starting point of the Court would usually be to review the advices provided to both parties prior to entering into the document and for this reason is crucial that expert independent advice is given to both parties to the document.

In Australia, both parents to a child have an obligation to assist in financially supporting their child until they reach the age of 18. This is commonly achieved through the payment of Child Support.

Child support can be paid from one parent to another through either:

A private arrangement between both parents; or
Through an assessment conducted by the Child Support Agency (CSA).

When parents are able to reach a private agreement for the payment of child support, this can be in any amount mutually agreeable between both parents and can include payment for expenses which do not ordinarily fall within the scope of expenses recoverable through the Child Support Agency, such as payments for extracurricular activities, school or medical expenses.

It is also possible for parents to privately agree for one parent to directly make payments towards certain expenses for the child, such as a contribution towards the payment of private school fees directly to the school.

Frequently asked questions

Q: Binding Child Support Agreement

A: When parents wish to have these specific payments recorded in writing, it is possible to achieve this through a document referred to as a Binding Child Support Agreement.

Should you wish to consider entering into a Binding Child Support Agreement, both parties are required to obtain independent legal advice to explain to them the effects of the document to ensure that each party completely understands the future ramifications/obligations on each party once the document is executed.

Q: What is a Child Support Agency Assessment?

If parents are unable to privately reach an agreement on the payment of Child Support, it may become necessary for payments to be assessed and conducted through the Child Support Agency.

When calculating the appropriate amount of child support to be paid by one parent, typically the Child Support Agency will consider the following;

The number of children of each parent; and
The taxable income of both parents; and
The time spent by each parent with the child/children.

The Child Support Agency have an online calculator to assist parties in understanding what child support may become payable should the Child Support Agency is required to assess and collect any payable child support.

We have placed a link to this calculator below should you wish to utilize it.

https://www.humanservices.gov.au/individuals/enablers/online-estimators

In some circumstances, for instance where one party is self-employed, it may be necessary for one party to file a variation request with the Child Support Agency should a parent feel that a parties taxable income does not truly reflect their actual earning capacity.

There can be other reasons to depart from the usual child support formula, for example the child having significant medical expenses, or a parent contributing to other related costs for a child.

There are also instances where child support may be payable after a child turns 18 years of age.

When facing the breakdown of a relationship, each party’s ability to support themselves is usually forefront of the mind. Your likely entitlement to the property of the relationship and how this would affect your standard of living may even impact on your decision to separate or not.

It is difficult to make decisions about separation in a vacuum, so it is important that you seek comprehensive advice about separation and property settlement. Every relationship is unique and there is no cookie cutter or broad brush advice to be applied to every situation.

Frequently asked questions

Q: Limitation dates

A: It is vitally important that you know and observe your limitation dates. A limitation date acts as a bar to prevent the commencement of legal proceedings. If you miss your limitation date you will be required to seek the leave of the court to divide property.

The limitation dates which apply to property settlements are fairly straightforward. If you are in a de facto relationship, you have two (2) years from the date of separation to commence property settlement proceedings.

If you are married, you have one (1) year from the date of divorce to file proceedings. If you have separated, we would strongly advise that you seek legal advice regarding your particular situation as soon as possible.

Q: The Court’s approach

A: There is a 5 step process the Court applies to the division of the assets of a relationship as follows:

The Court decides whether it would be just and equitable to make a property division. If the Court decides it would not be just and equitable to make a property settlement in the circumstances, the Court cannot make an Order to divide the property.

The second step in the process is to identify and value the property pool. Essentially, this step requires you to ask :

What property do we have?
How much is it worth?

Property will include real estate, vehicles, household furniture, superannuation, shares, trust funds, interests in a business or partnership, and funds in bank accounts etc. It will also include debts and liabilities including mortgages, tax debts, credit card debt, car loans, charges on property, and any other liability.

It is not unusual for parties to disagree about the value of the family home or other assets and may be necessary to appoint a professional valuer. There may be a need to have a superannuation interest or business valuation by a professional in certain circumstances.

The third step is to consider the contributions made by each party to the property pool. The contributions are classified as financial contributions, non-financial contributions and contributions to parenting and homemaking.

The fourth step is to consider the future needs of each party. Relevant factors will be such things as the age difference between the parties, their health, their earning capacity, and the care of young children.

The final step taken by a Court in property settlement matters is to decide what division is just and equitable. This involves the Court looking at the situation as a whole and deciding what division it considers fair taking into account the property pool, the parties’ contributions, the needs of the parties, and any other factor it considers relevant.

Q: Settlement

A: Most property settlements occur by negotiation and without the need to file proceedings. If you are able to agree on the settlement of the property, consent documents can be drafted and filed in the Court to finalise the property settlement. If the Court approves of the agreement it will make an Order in the terms of the agreement. The Order is enforceable by a Court and may provide a stamp duty exemption.

As de facto property settlement is now very similar to matrimonial property settlement, there is sometimes confusion about exactly when a relationship becomes de facto? When you are married conveniently, there is a suitably dated piece of paper reminding you of your marital status, however when will a Court say your partner is now your de facto?

Frequently asked questions

Q: Is there a de facto relationship?

According to Section 4AA of the Family Law Act 1975 (Cth), a de facto relationship exists where a couple is not legally married or related, and, having regard to the all the circumstances of their relationship, they have a relationship as a couple living on a genuine domestic basis.

The Act helpfully describes the circumstances which may demonstrate a couple is in a relationship such as:

the duration of the relationship,
the nature and extent of their common residence,
whether a sexual relationship exits,
the degree of financial interdependence,
the ownership of property,
the degree of commitment to a shared life,
whether the relationship was registered,
the care and support of children,
and the reputation and public aspect of the relationship.

Any number of the above factors, to varying degrees, can add up to equalling a de facto relationship.

The de facto definition includes same sex relationships, and interestingly, relationships where one of the parties is legally married to another person or in another de facto relationship.

‘De facto’ is a Latin expression and can be defined as “existing in fact, although perhaps not intended, and legally recognised as so”. The term is applied to relationships in which a couple is considered to be married in all but name. In a majority of de facto relationships encountered in family law practice, a couple lives together, shares finances, appears publically as a couple, owns property together, has a sexual relationship, and perhaps has children together, but not necessarily all of the above.

Q: Division of property

If it transpires that you are in a de facto relationship by the definition above, there is no automatic entitlement to a division of property under the Act.

For the Court to have the power to make de facto property settlement Orders To be classified as a de facto relationship the Family Law Act states that there may be:-

The period of the relationship is at least 2 years; or
that there is a child of the de facto relationship; or
a party has made substantial contributions to the relationship and failure to allow a division of property would result in a serious injustice to the applicant.

If the Court is satisfied of one or more of the above, the Court will then go on to consider what type of a property division would be appropriate.

Q: De facto property settlement division

The court applies the same formula to the division of de facto property as it does to matrimonial property. It is a five step process as follows:

The Court identifies and values the assets and liabilities.

The Court considers the contributions made by each party to the property pool. The contributions are classified as financial contributions, non-financial contributions and contributions to parenting and homemaking.

The Court considers the future needs of each party. Relevant factors will be such things as the age difference between the parties, their health, their earning capacity, and the care of young children.

The final step taken by a Court in property settlement matters is to decide what division is just and equitable. This involves the Court looking at the situation as a whole and deciding what Orders it considers fair taking into account the size of the property pool, the living circumstances of the parties, their ability to support themselves, their contributions, and any other factor it considers relevant.

When families separate the best thing for everyone involved is to resolve any issues as amicably and early as possible.

There are many studies that show the negative impact of ongoing conflict on children and parents alike. It is often a delicate balancing act between seeking entitlements, and making a compromise to promote future harmony and calmness of life.

In some cases there are difficult legal issues that can only be decided by a Court, but in most cases it is of great benefit for the parties to access Mediation or Alternative Dispute Resolution services at an early time.

For parenting matters there is a requirement that parents attend mediation and attempt to agree prior to making an Application for a Court to decide arrangements. There are exceptions to this rule for urgency, family violence, or risk/abuse in respect of children.

Mediation is the most common form of dispute resolution and can be done privately (with a Mediator funded by the parties) or through government subsidised agencies such as Relationships Australia or the Family Relationships Centre. There are reduced costs involved with using the government subsidised agencies, however there are often long wait times for these services.

Mediation can occur with or without the parties having legal representation, of course legal advice before, during or after mediation is recommended. Mediators do not give the parties advice, their role is to facilitate the parties discussing their issues with a view to them reaching agreement.

Mediation is confidential (unless there are statements of serious risk of harm made) and the discussion at mediation is “without prejudice”, meaning it cannot be binding to a Court.

Some of the benefits of attending mediation at an early opportunity are:

Reducing future conflict and enabling future cooperation between parties if they agree. Going through a contested Court process usually has the opposite effect of increasing the conflict between the parties;
Enabling the parties to make the decision themselves, rather than a Court imposing terms;
Reduced future legal costs of avoiding the Court process;
Early resolution – the Court process can take 6 to 18 months in many cases;

Not all matters are suitable for mediation – where there has been family violence or there is a large power imbalance it may not be appropriate for mediation to occur. There will be an intake prior to mediation where the suitability for mediation is assessed. Some mediations involve the parties talking to each other in the same room, in other circumstances a shuttle mediation is more appropriate where the parties do not come in contact with each other and the mediator moves between the rooms.

Some other forms of dispute resolution to avoid a contested fight in the Family Court system are:

Collaboration – Each party retains a collaboratively trained lawyer, and those lawyers then work with each other to attempt to find a solution that is mutually beneficial to both parties. If the collaborative process does not produce an agreement then both parties must then retain different lawyers in the future.
Conciliation – This is similar to mediation; however the Conciliator is able to provide the parties with some views of the legal aspects of their case and is able to take a greater role in guiding the parties to a resolution.
Arbitration – The parties contract with an independent person (Arbitrator) with legal experience that hears from each party, reads documents, and then effectively decides their case in a similar way as a Judge. The Arbitration decision is binding on the parties, and if either party wishes they may then seek the decision be made into a formal Court Order by applying to the Court.

Many people expect that when they ask a Judge to decide their case they will be delivered justice and the decision will address the issues that are important to them. The harsh reality of the Court system is that the Judge is given the task of deciding the case, and at that point the parties lose all power in the situation, as they have handed all their decision making power to the Judge. The Judge will make a decision based on applying the facts to the law, however the result will most times not be favourable to both parties, and sometimes both parties may be dissatisfied.

By using mediation or other alternative dispute resolution processes the parties keep the decision making power themselves. There are often great benefits for the children of a relationship when parties use the mediation process fully, as the parties can make all types of arrangements for parenting their children by agreement that would otherwise not be part of the usual court decision making process.

For example, at mediation the parties can agree on daily routine type matters for children such as what time would be best for bedtime, how much screen time they should have, etc.

In our experience it is always best for parties to resolve issues as soon as possible and as amicably as possible so that everyone’s life is more enjoyable.

AMC – Arbitration, Mediation and Conciliation

McNamara Law is proud to announce a new way in dispute resolution. AMC, a hybrid for three well known and existing alternative dispute resolution models.

AMC is a combination of Arbitration, Mediation and Conciliation rolled into a single event giving flexibility and speed to the resolution for Family Law issues being either Parenting and/or Property.

Introducing this new threefold hybrid model of dispute resolution and taking into account the current global crisis and social distancing requirements, we at McNamara Law are proud to offer AMC to our clients through alternative measures such as teleconferencing or online platforms. This allows all parties to participate in the dispute resolution process from the comfort of their own homes or a location of their choice.

When a couple separate and they have a child or children together, a question may arise whether the father is the biological father. That you have to sort out your parenting or property settlement matters prior to filing your Application for Divorce.

This might just be for peace of mind, or it may be required to for legal issues, such as:

Providing to the Family Court in support of your claim for Orders to spend time with the child (if paternity is questioned);
Providing to the Child Support Agency for child support payments, or to cease child support payments;
Changes to birth certificates;
Immigration;
Surrogacy;
or Estate matters.

Frequently asked questions

Q: Testing for Peace of Mind Only

A: If a parent seeks to confirm if the father is the biological father for their peace of mind only, that parent can apply to an agency offering paternity testing by simply completing the Application for that agency and paying the fee.

The test is usually mailed to the mother/father and their samples can be collected at home. The sample is a mouth swab from that parent and the child.

Some agencies might, however, require the consent of the parent who is the legal guardian of the child, to obtain the child’s sample, and in this event, you may need to seek the consent of the legal guardian or apply for Orders in the Federal Circuit Court.

This test does not provide results that are as accurate as having both parents’ DNA swabs, and it cannot be used for legal matters, however, it is an option available if a parent requires that peace of mind that they are, in fact, the parent of that child.

Q: Testing for legal issues

A: There has been a recent case involving a father paying many years of child support to the mother, and after he and his new partner attempted to conceive a child, he discovered that he was incapable of conceiving children. This resulted in the mother being Ordered to pay back a sum of over $3,000 to the non-biological father.

On the other hand, a mother might wish to claim child support from the father who either refuses to pay, or refutes a claim that he is the biological father.

In these scenarios, legal testing is required which involves having the consent of both parents. The procedure involves making an Application and paying a fee. A sealed DNA kit will be mailed to each parent, and you are to both arrange to attend your doctor or a Pathologist to provide a blood test of both parents and the child. After the sample is received from the agency, the results are usually available within 5 to 10 working days.

Identification for both parties, such as a passport, is required prior to the DNA kit being sent to each parent.

If the other parent refuses to provide their consent, you will need to apply to the Federal Circuit Court for Orders for Paternity Testing. The Application to the Court will require the filing of an Affidavit and an appearance before the Court to seek the leave of the Court for an Order for testing.

Our family law team are happy to assist you, whether it be for peace of mind, for legal matters and applying to the Court, or negotiating with the other parent.

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Please pass on my gratitude to Joshua for his honesty and spending time to look at my matter. What he has done may not have been much to him but carries a lot of weight with folk like myself who were brought up in 'Old School' values! I won't hesitate to recommend Joshua to represent any of my neighbours or friends. Thanks again and Kindest Regards!

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Dear Ruth, On behalf of myself, Shane and Kym I would like to thank you for all you have done for us. Even now I don't think we quite believe it was sorted out. Thank You again to yourself and Karen.

Thank you for representing me through the last couple of months in this fight with work cover. I appreciate your professionalism and personal touch. I think that you are an asset to McNamara Law. I will be recommending McNamara Law to anyone I meet seeking legal help. Thank you again for your hard work and without hyperbole your actions have literally been life-changing for myself.

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Excellent service and communication through the entire process. Very friendly helpful staff who gave us very good legal advice and guidance. Highly recommend to anyone.

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Dear Josh, just wanting to thank you again for your hard work to get this positive result today. I thought our luck had nearly run out, but your hard work has given us hope again to keeping Jessie’s dream alive. So once again I thank you

McNamara Law provided superb yet sensitive service on the finalisation of my father’s estate. A somewhat difficult time was made much easier by the prompt, informative and helpful assistance from all those that we came in contact with the firm. Thanks to McNamara Law and especially Bekky for her assistance!

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Navigating families through rough times.

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consult is FREE

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How We Help

Frequently asked questions

There are two primary considerations:

Frequently asked questions

Binding Financial Agreements

Frequently asked questions

Child support can be paid from one parent to another through either:

Frequently asked questions

Frequently asked questions

Frequently asked questions

AMC – Arbitration, Mediation and Conciliation

Frequently asked questions

I Want To

Make a will

Manage my superannuation

Contest an estate

Buy a house

Sell a house

Obtain compensation

CLIENT TESTIMONIALS

Helpful Links

Get In Touch

Experienced lawyers navigating families through tough times

Links

Practic Areas

Latest News

Sunsuper and QSuper announcements

Navigating families through rough times.

Your initial ½ hr consult is FREE

Ready to makea start?

DOWNLOAD OUR FAMILY LAW GUIDESFOR MORE INFORMATION

How We Help

Frequently asked questions

I Want To

CLIENT TESTIMONIALS

Helpful Links

Get In Touch

Experienced lawyers navigating families through tough times

Links

Practic Areas

Latest News

Your initial ½ hr
consult is FREE

Ready to make
a start?

DOWNLOAD OUR FAMILY LAW GUIDES
FOR MORE INFORMATION