10 Key Facts About Property Settlement

What is Property Settlement?

When a marriage or de-facto relationship is over, the financial ties between the parties need to be finalised.  For instance, if there is a jointly-owned house, it needs to be decided what happens to the house.  It may be that the house is sold, or one party may be able to take it over and, if necessary, “buy” the other party’s interest.

The Family Law Act 1975  sets out the process and law regulating Property Settlement.

Often people hear stories from friends, relations or work colleagues about their experiences; because the Family Law Act deals with people on an individual basis, each matter must be looked at on a “case-by-case” basis. Every relationship and situation is different; so to know where you stand, you must obtain advice about your situation, not someone else’s experiences.

Here is a comprehensive booklet our Accredited Family Law Specialist ( who has over 33 years experience in Family Law) has written about coping with property-settlement-managing-co-parenting/

Do separating couples need to have Property Settlement?

Yes.  One of the most important reasons for having a property settlement is to finalise your financial ties with your ex-partner.

If you do not finalise your financial relationship, either party may come back at the other down the track and make a claim for Property Settlement. If this happens, the Court doesn’t look at the property at the date of separation, they look at it at the date of proceedings, and, if it makes it all the way through the Court process, at the date of Trial.  Therefore, there are situations where property or debt acquired after separation by one party is brought into the property pool.

Examples of this are real estate or assets acquired after separation (even with another person), increases in superannuation and savings, and increases in the former matrimonial home.

Extreme cases can be when one party inherits an amount of money or has a lottery win after separation, but prior to a formal property settlement taking place. In this situation, the inheritance or lottery win can be included in the property asset pool for the Court to consider.

There are also practical issues which need to be addressed after separation; such as, who is responsible for the mortgage payments, personal loan or credit card payments?

Before agreeing to any proposed settlement, it is most important that you get legal advice as to your particular financial entitlement (and obligations) so that when you are dealing with your former-partner, you know where you stand, legally.

How do I start the Property Settlement Process?

Whether you reach amicable agreement or not in relation to your property settlement, the best way to finalise the financial relationship is to commence the property settlement process as soon after separation as is practicable. Most matters, even when there is a dispute, do not go to a Trial before a Judge.

At Journey Family Lawyers, we normally start the process by advising you of your entitlements.  With your instructions, we will then draft a letter to send to the other party to try to reach agreement without the necessity of going to Court.

Alternatively, Mediation between the parties is an option we recommend if it is likely that an agreement can be reached.  However, in some cases where  there is little likelihood of Mediation succeeding, commencing Court proceedings may be appropriate course of action to take because the Court process induces parties to address the issues and Mediation can follow.

Often, there are disputes about what property is in the property pool, what values are attributable to those assets and how they should be managed during the process (i.e. who should pay the mortgage, or who should live in the house before a final Property Settlement has taken place). These types of issues vary on a case -by-case basis but must also be dealt with to allow the Property Settlement process to proceed.

What is Property? 

Property includes all the assets under the ownership OR control of either or both parties to the relationship.

This includes real estate, interests in businesses and companies, superannuation, shares, money in bank accounts, vehicles, boats, antiques, jewelry or artworks and so on. Also, interests or entitlements in trusts may also form part of the property pool.

Also there are some financial resources that one party may have access to that a Court can also take into account.  Examples of financial resources can be interests in deceased estates and interests in family trusts.

What are the time constraints for Property Settlement?

Either party to a Marriage or a de-facto relationship (as defined by the Family Law Act), can bring an Application for Property Settlement at any time after separation.

Generally it is best to deal with Property Settlement as soon as separation occurs. At the least, separating parties ought to obtain independent legal advice as to their rights and obligations for property settlement so that they do not agree to accept less than their entitlement.

With some exceptions, separating parties must commence proceedings for a Property Settlement (bring a Court Application) within twelve months of their Divorce, for a married couple and for a de-facto couple, within two years of their separation. If you do not commence property proceedings within these time limits, you may lose your rights.

If a Property Settlement is not reached prior to these time limits, the other party may still be able to bring an Application for Property Settlement “out of time”.  So, if you have not had Property Settlement, you may still be at risk outside these time limits.

 

How do I formalise our Property Settlement?

Often through negotiations, agreement can be reached and then the best way to finalise property is through Consent Orders. Consent Orders are Orders both parties have agreed to and which a Court or a Court Registrar then scrutinises and if they are satisfied that the proposed settlement is just and equitable, they will make the Orders

There is also an option to make a written agreement called a Binding Financial Agreement.  There are many cases where these types of agreements have been overturned by the courts. It is important that they be prepared carefully and signed off properly. Quick or cheap Financial Agreements are not the answer.

How is Property Settlement calculated?

The Family Law Act and the Courts have established a four-step process to work out the respective parties’ rights and entitlements in a Property Settlement.

Broadly speaking, the process considers what is in the property pool, including all assets and liabilities; it then looks at initial contributions, contributions during the relationship, both financial and non-financial and then it looks at post-separation factors. As there are many variables, each case must be looked at on an individual basis to determine the respective entitlements.

Before agreeing to anything, we strongly recommend you see a Lawyer to go through this process to work out your position.

Do I have to go to Court for Property Settlement?

Most cases do not go to Court or to Trial. This is because the process is aimed at negotiating and finalising the property settlement without the necessity of a Court action. There is a process that encourages settlement. The result is that, even when Court proceedings are commenced, very few cases end up in a final Trial.

What happens if one party does not want to have Property Settlement?

It is not uncommon that one party wants to finalise the Property Settlement and the other party does not. At Journey Family Lawyers, we firstly write to the other party or their Lawyers suggesting a process to mediate/negotiate the Property Settlement.

If the other party refuses to mediate or negotiate or, does not do so in a genuine manner, the next step is to bring an Application for Property Settlement. This means that both parties go before the Court. The Court makes directions to clarify the issues; it generally also Orders some form of Mediation. Often this process results in an agreed settlement (and Consent Orders).

This system means that, even if a party does not want to cooperate, the Court system deals with the Property Settlement, regardless.

 

What should I do?

In the first instance, you need to know where you stand in relation to your entitlements and obligations. If you do not do this you will not know what to expect and you may agree to something that is not “fair”.

Also, if you do not know what your entitlement is, you cannot negotiate effectively with the other party.

Therefore we recommend your first step is to see a Lawyer to ascertain your individual situation.

At Journey Family Lawyers, at our initial consultation, we try to work out a client’s entitlement and a suggested course of action to settle the matter as soon as practicable.

Sometimes after ascertaining your entitlement, you may choose to discuss it with your former partner. If you come to an agreement, we recommend you use a Lawyer to formalise that agreement.

Other times, it might be a matter of engaging Lawyers to deal with the issues.

Each case is usually slightly different and it depends on the individual situation.

If you are in doubt with any of these matters, always consult a Lawyer.

Alternatively, if you are wanting further information, click here to go back to our Property section where we have lots of helpful articles.

10 Key Facts About Property Settlement

What is Property Settlement?

When a marriage or de-facto relationship is over, the financial ties between the parties need to be finalised.  For instance, if there is a jointly-owned house, it needs to be decided what happens to the house.  It may be that the house is sold, or one party may be able to take it over and, if necessary, “buy” the other party’s interest.

The Family Law Act 1975  sets out the process and law regulating Property Settlement.

Often people hear stories from friends, relations or work colleagues about their experiences; because the Family Law Act deals with people on an individual basis, each matter must be looked at on a “case-by-case” basis. Every relationship and situation is different; so to know where you stand, you must obtain advice about your situation, not someone else’s experiences.

Here is a comprehensive booklet our Accredited Family Law Specialist ( who has over 33 years experience in Family Law) has written about coping with property-settlement-managing-co-parenting/

Do separating couples need to have Property Settlement?

Yes.  One of the most important reasons for having a property settlement is to finalise your financial ties with your ex-partner.

If you do not finalise your financial relationship, either party may come back at the other down the track and make a claim for Property Settlement. If this happens, the Court doesn’t look at the property at the date of separation, they look at it at the date of proceedings, and, if it makes it all the way through the Court process, at the date of Trial.  Therefore, there are situations where property or debt acquired after separation by one party is brought into the property pool.

Examples of this are real estate or assets acquired after separation (even with another person), increases in superannuation and savings, and increases in the former matrimonial home.

Extreme cases can be when one party inherits an amount of money or has a lottery win after separation, but prior to a formal property settlement taking place. In this situation, the inheritance or lottery win can be included in the property asset pool for the Court to consider.

There are also practical issues which need to be addressed after separation; such as, who is responsible for the mortgage payments, personal loan or credit card payments?

Before agreeing to any proposed settlement, it is most important that you get legal advice as to your particular financial entitlement (and obligations) so that when you are dealing with your former-partner, you know where you stand, legally.

How do I start the Property Settlement Process?

Whether you reach amicable agreement or not in relation to your property settlement, the best way to finalise the financial relationship is to commence the property settlement process as soon after separation as is practicable. Most matters, even when there is a dispute, do not go to a Trial before a Judge.

At Journey Family Lawyers, we normally start the process by advising you of your entitlements.  With your instructions, we will then draft a letter to send to the other party to try to reach agreement without the necessity of going to Court.

Alternatively, Mediation between the parties is an option we recommend if it is likely that an agreement can be reached.  However, in some cases where  there is little likelihood of Mediation succeeding, commencing Court proceedings may be appropriate course of action to take because the Court process induces parties to address the issues and Mediation can follow.

Often, there are disputes about what property is in the property pool, what values are attributable to those assets and how they should be managed during the process (i.e. who should pay the mortgage, or who should live in the house before a final Property Settlement has taken place). These types of issues vary on a case -by-case basis but must also be dealt with to allow the Property Settlement process to proceed.

What is Property? 

Property includes all the assets under the ownership OR control of either or both parties to the relationship.

This includes real estate, interests in businesses and companies, superannuation, shares, money in bank accounts, vehicles, boats, antiques, jewelry or artworks and so on. Also, interests or entitlements in trusts may also form part of the property pool.

Also there are some financial resources that one party may have access to that a Court can also take into account.  Examples of financial resources can be interests in deceased estates and interests in family trusts.

What are the time constraints for Property Settlement?

Either party to a Marriage or a de-facto relationship (as defined by the Family Law Act), can bring an Application for Property Settlement at any time after separation.

Generally it is best to deal with Property Settlement as soon as separation occurs. At the least, separating parties ought to obtain independent legal advice as to their rights and obligations for property settlement so that they do not agree to accept less than their entitlement.

With some exceptions, separating parties must commence proceedings for a Property Settlement (bring a Court Application) within twelve months of their Divorce, for a married couple and for a de-facto couple, within two years of their separation. If you do not commence property proceedings within these time limits, you may lose your rights.

If a Property Settlement is not reached prior to these time limits, the other party may still be able to bring an Application for Property Settlement “out of time”.  So, if you have not had Property Settlement, you may still be at risk outside these time limits.

 

How do I formalise our Property Settlement?

Often through negotiations, agreement can be reached and then the best way to finalise property is through Consent Orders. Consent Orders are Orders both parties have agreed to and which a Court or a Court Registrar then scrutinises and if they are satisfied that the proposed settlement is just and equitable, they will make the Orders

There is also an option to make a written agreement called a Binding Financial Agreement.  There are many cases where these types of agreements have been overturned by the courts. It is important that they be prepared carefully and signed off properly. Quick or cheap Financial Agreements are not the answer.

How is Property Settlement calculated?

The Family Law Act and the Courts have established a four-step process to work out the respective parties’ rights and entitlements in a Property Settlement.

Broadly speaking, the process considers what is in the property pool, including all assets and liabilities; it then looks at initial contributions, contributions during the relationship, both financial and non-financial and then it looks at post-separation factors. As there are many variables, each case must be looked at on an individual basis to determine the respective entitlements.

Before agreeing to anything, we strongly recommend you see a Lawyer to go through this process to work out your position.

Do I have to go to Court for Property Settlement?

Most cases do not go to Court or to Trial. This is because the process is aimed at negotiating and finalising the property settlement without the necessity of a Court action. There is a process that encourages settlement. The result is that, even when Court proceedings are commenced, very few cases end up in a final Trial.

What happens if one party does not want to have Property Settlement?

It is not uncommon that one party wants to finalise the Property Settlement and the other party does not. At Journey Family Lawyers, we firstly write to the other party or their Lawyers suggesting a process to mediate/negotiate the Property Settlement.

If the other party refuses to mediate or negotiate or, does not do so in a genuine manner, the next step is to bring an Application for Property Settlement. This means that both parties go before the Court. The Court makes directions to clarify the issues; it generally also Orders some form of Mediation. Often this process results in an agreed settlement (and Consent Orders).

This system means that, even if a party does not want to cooperate, the Court system deals with the Property Settlement, regardless.

 

What should I do?

In the first instance, you need to know where you stand in relation to your entitlements and obligations. If you do not do this you will not know what to expect and you may agree to something that is not “fair”.

Also, if you do not know what your entitlement is, you cannot negotiate effectively with the other party.

Therefore we recommend your first step is to see a Lawyer to ascertain your individual situation.

At Journey Family Lawyers, at our initial consultation, we try to work out a client’s entitlement and a suggested course of action to settle the matter as soon as practicable.

Sometimes after ascertaining your entitlement, you may choose to discuss it with your former partner. If you come to an agreement, we recommend you use a Lawyer to formalise that agreement.

Other times, it might be a matter of engaging Lawyers to deal with the issues.

Each case is usually slightly different and it depends on the individual situation.

If you are in doubt with any of these matters, always consult a Lawyer.

Alternatively, if you are wanting further information, click here to go back to our Property section where we have lots of helpful articles.

Children & Separation – Important Information

When a marriage breaks down, the parents generally have a lot of questions and issues about the situation and what happens to the children. This article tries to explain the more common issues and offer suggestions as to how best to deal with them. If you have other questions feel free to email us or call one of our Journey offices for a free ten minute consultation.

We have just separated, what do we do now?

It is best for everyone, particularly the children, if parents can amicably agree to parenting arrangements. You may wish to seek legal advice before making any decisions. Generally each case is a bit different and you are probably best to get some legal advice about your particular situation before agreeing to anything.  At this point you may not need to engage a lawyer but you should find out where you stand. At Journey Family Lawyers, we offer an initial consultation at a flat rate of$143. The consultations generally take at least an hour and we can discuss possible arrangements for the children. There is a lot of miss-information around so it is better to get your information from the experts so you do not make a mistake.

If you feel comfortable and it is safe to do so, the next step should usually be to discuss what you propose the parenting arrangements to be with your Ex. You could do this by email, telephone or in person. Remember when discussing any arrangements that they must be in the child’s best interests.  You should discuss the following matters:

  • Where the children should predominately live and what time they spend with the parent they don’t live with.
  • Changeover arrangements – where should changeover occur, who drives where, what time changeover will occur. Take into account school or public holidays if you decide changeover should occur at a child’s school.
  • Times for the child to contact each parent by phone when they are in the care of the other parent.
  • Arrangements for special days, including Christmas, Easter, Mother’s Day, Father’s Day and birthdays.
  • Any important decisions needing to be made including schools the children attend, medical decisions etc and how those decisions will be made (i.e jointly or by one parent – see Parental Responsibility below).

If you can agree, you can record the agreement in either a parenting plan or a Court Order.  See below for information about these options.

If you cannot agree or if there is an urgent matter involving relocation or risk of harm, the next step is to see a solicitor to proceed with either mediation or applying directly to court (in urgent matters or where there are special circumstances).

If you have primary care of the children, you should also contact Centrelink and the Child Support Agency to determine your eligibility for child support and Centrelink payments such as the Family Tax Benefit or parenting payment. The Child Support Agency has an excellent website for obtaining more information about entitlements and obligations.

Best interests of the children

In parenting matters in Australia, the Family Law Act says that the best interests of the children is the deciding factor when determining parenting arrangements following separation. It is important to understand that all decisions you make regarding these arrangements should be made with the child’s best interests in mind. Under the Family Law Act (in section 60CC), there are several factors listed to consider to decide what is in the child’s best interests. The most important factors are protecting the child from harm and ensuring the child has a meaningful relationship with both of their parents. Other factors include the views of the child (given weight according to their age and maturity), the relationships the child has with each of the parents and other family members, the capacity and participation of each parent in parenting the child and spending time with the child, the effect of any changes to the child’s circumstance and the practical difficulty and expense of any proposed arrangements.

Mediation

Mediation is a compulsory step for parents who cannot agree on parenting arrangements before the matter goes to Court. Parents who attend mediation to resolve disputes will be given a certificate (referred to as a section 60I certificate). You need this certificate to file an application to Court, unless the matter is urgent (risk of harm to the child or relocation by the other party) or you are unable to attend mediation for some other reason (do not know where the other party is, the other party refused to attend mediation).

There are 3 general options for mediation:

1. Private Mediation

A private mediation is run by a Family Dispute Resolution Practitioner, generally a solicitor. You would need to pay the fees for the mediator and generally for your solicitor. We can give you an estimate of the costs involved depending on the mediator chosen.  The benefit to a private mediation is that it can be arranged quickly, you have your solicitor with you (if you wish), the parties are generally better prepared for mediation and in many cases, is more likely to result in an agreement than Legal Aid Conference or Relationships Australia. Normally your lawyer can arrange that for you though of course, both parties need to be agreeable and you need agreement as to who pays the cost of the mediation.

 2. Legal Aid Conference

If you are eligible for Legal Aid, a legal aid conference is a good option. You will have a solicitor present to advise you through the process. The mediation would either be by phone, from our office; or at the Legal Aid office in Caboolture, Maroochydore or Brisbane. The conference can be run as a shuttle conference, where you will not need to speak to or see the other party if safety or fear of the other party is an issue.  Legal Aid may require a contribution on your behalf if you are assessed as having the means to pay, but otherwise a Legal Aid Conference is free. Legal Aid will also pay for any agreement to be made into a court order should the parties agree to it.

3. Relationships Australia mediation

RelationshipsAustraliaand other similar community organisations conduct mediation. The mediator is not a solicitor and you are not permitted to have a solicitor with you. This is a good option if you cannot afford a private mediation but are not eligible for a Legal Aid conference. It is best to seek legal advice prior to attending mediation through Relationships Australia so you are aware of where you stand. Contact Relationships Australia Queensland for any enquiries about fees and availability.

Parenting Plans or Court Orders?

Once you reach an agreement with your ex you can formalise it in several different ways. A parenting plan is a written agreement reached between both yourself and your ex and is signed by each of you.  A parenting plan can deal with many aspects of parenting including, where the child shall live, when the child shall spend time with each parent, communication between the parents regarding the child, authorities for parents to access school or medical records and many other things.  Whilst a parenting plan creates obligations between the parents to each other, it is not legally binding. This means that it cannot be enforced by the court. If you think there will be problems later on with the other parent keeping to the agreement, the a parenting plan is not suitable.

A Court Order is a legally binding document which creates legal obligations on each parent.  If both parties agree to enter into Court Orders then this is what is called a Consent Order.  A Consent Order is legally binding and if either party does not follow the Order then the other person can take them to court for breaching or contravening the Order.  There are serious ramifications for breaching Court Orders.

We generally recommend Consent Orders. This is because they are legally binding; as well, you have proof as to the legal arrangements with the child.

Court Process

If you have tried mediation or if the other party is not cooperative, and you are faced with the likelihood of going to court, there are a few things to keep in mind.

Firstly in order to apply to court you are required to prepare and file documents in the court advising of what orders you are seeking and the background of the dispute.  Once you file these documents you will be given a first court date.  This court date is generally between two to three months after you file the material.  You then serve a copy of your material on the other party who then responds to this, generally before the first court date.

On your first court date, the court does not make final parenting Orders.  They are only able to make interim (or short-term Orders). These Orders include time arrangements and also cover procedural issues.  For example, at this point the court may order that a Family Report or a Psychiatric Report be prepared or that an Independent Children’s Lawyer be appointed.  These reports are designed to assist the court in making an informed decision as to what is in the best interests of the children.

A Family Report is a document that is prepared by an independent Family Consultant. These people are generally social workers or psychologists and are experts in the field.  The Family Consultant’s role is to meet with the parents and the children, and any other significant people and to make recommendations about what is in the child’s best interests.  This report is a valuable piece of evidence for the court and is generally considered very important by the Judges.

An Independent Children’s Lawyer is a lawyer who is appointed to represent the children’s interests only.  They generally do not meet the children or take instructions from the children, however they undertake a forensic role in investigating what is in the children’s best interests.   This could include arranging for experts to do reports (ie Family Reports or Psychiatrists or others), issuing subpoenas (to get records from organisations such as the Police or DOCS) and making recommendations to the court based on this information.

Once the necessary investigatory steps have been taken and reports obtained then if the parties are still unable to agree on an outcome, the court will have a trial.  At the Trial both parents are required to give evidence in court (the children are not), along with any experts or other witnesses.  At the conclusion of the trial the court determines what is in the children’s best interests and makes an Order.

The court process can be lengthy and if your matter requires a trial it can take a long time to get to that point. What is encouraging however is that 95% of Family Court matters resolve without the need to go to Trial.  At any point during the Court process, if the parties reach an agreement you are able to enter into Consent Orders and therefore no longer continue through the system.

Parental Responsibility and ‘shared care’

The term “equal shared parental responsibility” is one used very regularly in family law.  Equal shared parental responsibility refers to the responsibility for making long-term decisions for the child. Long-term decisions include schooling, religion, medical procedures or changing the child’s name, amongst other things.

The term, “equal shared care” refers to where the children live; in the shared care arrangement, it means 50/50 or equal time living with the each of the two parents.

There is a presumption under the Family Law Act that both parents shall have equal shared parental responsibility unless there is family violence, child abuse or some other special reason not to do so.

Whilst many parents who are separated do not get along particularly well, this does not mean they cannot make decisions jointly and therefore in only a small number of matters does the court give one parent sole parental responsibility.

If the court orders that the parents should make long-term decisions jointly then the court must consider whether a “shared-care” arrangement would work (meaning an arrangement whereby the child lives with each parent 50% of the time).  In many circumstances a shared-care arrangement is not in the children’s best interests and in these cases the court then considers an alternative arrangement. For instance, a common arrangement is for the children to live with one parent and spend every second weekend with the other parent, plus one night during the week, plus half school holidays. If you are not sure what is appropriate or whether what you are proposing is reasonable, you should consult a lawyer.

Location and Re-location

Where the children live is a long-term decision which generally needs to be made by both parents.  If you are considering relocating, there can be very serious ramifications to this if you do it without the other parent’s written consent or without a Court Order. If you are considering relocating we strongly recommend that you obtain legal advice before making this decision or taking any action. If you do not do things properly, you can not only make it worse for yourself but in some instances, have the child taken away to live with the other parent.

On the other hand, if the other parent has moved away with the children and it affects the children’s ability to spend time with you, it is important to act quickly. In some instances you can obtain a recovery Order requiring the other parent to return the children, however if you delay this and do not make this application straight away, you are less likely to be successful.  We recommend that you get legal advice straight away if you are faced with this situation.

Domestic and Family Violence

Sadly in many families children are exposed to domestic and family violence.  This is treated very seriously by the courts.

If you are experiencing domestic violence, which includes physical and psychological abuse, harassment, intimidation, threats or control then you need to consider whether you should apply for a Protection Order.  A Protection Order is an order made by theMagistrates Courtand can impose a number of obligations on the offender, this includes that they must be of good behaviour to you and not commit domestic violence, that they may not be able to contact you or to go to your house or workplace, and many other conditions.  You are also able to apply to have your children or other relatives or associates named on the order as protected persons.

A Protection Order is serious and if the other person breaches a protection order and is convicted, it is a criminal offence.

You are able to apply for a Protection Order yourself, however it is often a good idea to get legal advice and assistance so that you have the best chance of success.

Domestic and Family violence is considered in all parenting matters before the Family or Federal Magistrates Courts.  If there is domestic or family violence the court is required to consider the impact of this on any parenting order that is made.

Remember however, that the fact there is domestic violence between the parties, does not mean the children will not be allowed to spend time with the other parent. The Family Law courts look at each case on their merits (violence against the children by a parent is however taken very seriously).

Legal Aid

If you have a low income or are in receipt of a health care or pension card and you have a substantial issue in dispute, you may be eligible for legal aid funding.

You can make an application for Legal Aid to assist with your parenting dispute or your domestic violence matter.  If you are granted Legal Aid for your parenting matter this will often be to attend mediation (or a Family Dispute Resolution Conference as it is referred to).  If this is unsuccessful you may then obtain funding to go to court (apart from in exceptional circumstances where you may need to apply straight to court).

In some circumstances although you are awarded a grant of legal aid funding, you may be required to pay an initial contribution. This is based on your income and is assessed by Legal Aid.  We can assist you with applying for Legal Aid funding as we are a Legal Aid preferred supplier.

You can apply for Legal Aid either through Journey Family Lawyers or directly through Legal AidQueensland(you can request that your matter be assigned to our firm).

Helpful Organisations

  • Legal Aid – 1300 65 11 88 – for assistance with funding legal proceedings;
  • Relationships Australia – 1300 364 277 – can arrange counselling or mediation in some circumstances;
  • DV Connect – 1800 811 811 – provide you with support and assistance in circumstances where you have experienced domestic violence;
  • Centrelink – 136 150 – assist with parenting payments and other income-tested pensions;
  • Child Support Agency – 131 272 – assess child support liabilities and can collect this on your behalf.

Separation advice: Before you go

We find when client’s come to Journey Family Lawyers for the first time, there are two prominent issues that we need to look at;

what will be the final outcome and

what is going to happen in the short term.

This article gives some practical tips for what to do before you go and what to do once you’ve left.

Understand your finances.

One of the biggest problems we have with client’s coming to see us for the first time, is that they just don’t understand their finances. It’s very common to hear, “Oh, but so-and-so always paid the bills, I have no idea how much we have.” As painful as it is, you need to learn the basics.

After speaking with us for the first time, we will often recommend that you go and speak to a financial planner. Why? Because we can’t give you financial advice. They can give you advice on:

  1. Budgeting (very important in the interim);
  2. Life insurance;
  3. Mortgage payments;
  4. Savings accounts;
  5. Retirement;
  6. etc.

We can work with your financial planner to let them know how much money you have to work with so that a manageable budget can be planned.

Get Organised

Often, people just walk out of the house with nothing more then the clothes on their bank. Sometimes however, you have the opportunity to do a little pre-planning. If you can, take a copy of all your useful documents (bank statements, superannuation statements, share statements, tax returns, pay slips, etc.) to provide to us to give us a better understanding of your property pool.

And once you do leave, get organised! Put a binder or folder together of your most important information. You can include in it account numbers, contact information, policy numbers, correspondence from your solicitors and any other important documentation. It’s simple, but effective and helps you to focus.

As well as this, if you are leaving and you’re worried about personal items, take them with you. Photo albums are not easily replaced but copies can be made later.

Get Support

Divorce adds pressure to your already busy life, so to get through it, you need a good support system. Find a solicitor that you can relate to. Having a good relationship with your solicitor is absolutely fundamental. If you don’t trust or feel comfortable with your lawyer, you will never feel ok with the outcome. If you need to, speak to a psychologist or counsellor. Remember, we are all professionals in different arreas for a reason. Just like a counsellor can’t give legal advice, there are certain issues that solicitors aren’t trained to deal with. If you feel like it’s becoming too much, speaking to a professional will often help with this pressure.

Speaking with a financial planner, accountant or real estate agent often helps as well. Ask your family and friends for a good recommendation.

Your Journey file

We lawyers absolutely love paperwork! And if you think your paperwork pile was big before, a complicated divorce matter makes things so much worse. It can be tempting to simply through everything in a box and leave it there, but we recommend getting a file or system in place that allows you to keep everything organised. That way, you’ll know where everything is when you need to access it and you will make your life much easier.

Who pays the bills?

There is a time lag between a person first applying for Centrelink payments and Child Support and the date of the first payment. This can leave one party in dire straits for a few weeks, especially if they do not have any funds in their own name.

In these circumstances, most people continue to take mortgage payments and other living expense from whichever salary funded them in the past. It is usually only later, when Child Support payments are being made that the person living in the house assumes liability for the mortgage and outgoings. The Court expects a person living in a property to pay for the costs associated with that property on the basis that the other parent will have other living expenses involved in renting.

If no agreement can be reached then it may be necessary to bring an urgent spousal maintenance claim to cover day to day living expenses.

Who lives in the home?

Many times the Father leaves the house and the children and their Mother stay in the home. This is usually the sensible course of action as it is easier for one person to relocate than for several people to relocate. Difficulties arise however, where neither party will leave the home and resulting conflict makes life hell for both parties and the children.

In these circumstances, it may be necessary for one party to apply to the court for an order granting them “sole occupancy”. Decisions on this point are made by the Court based on the balance of convenience and fault, amongst other things. Generally the person who has somewhere else to go and the money to fund the move will be asked to leave. Unless he or she can convince the Court that there is no reason why they should leave. It is not unusual for people to continue to live under one roof but separately if they are unable to afford alternative accommodation for one party.

Where will the children live?

At the early stages, unless there are serious emergent circumstances, the parties will need to negotiate interim parenting arrangements either directly between themselves, or with the assistance of solicitors. Family Relationships Centre or Relationships Australia offer a free mediation for parties to discuss parenting arrangements.

Remember, unless there is an exception, parties must attend (or have sought to attend) compulsory family dispute resolution prior to commencing proceedings.

Urgent or interim Child Applications

When most Applications for Parenting Orders are filed in the Family Court of Australia or Federal Magistrates Court of Australia, there is usually an Application for Interim Orders contained with it. This is because, at the moment, it’s taking about one and a half years to two years for an Application for Parenting Orders to proceed to trial in the Family Court and about one year to one and a half years in the Federal Magistrates Court (at least in a Brisbane Registry). Steps are being taken by both Courts to try and speed that process up. But in the meantime, Interim Orders are likely to apply for a significant period of time.

Interim hearings are, by their nature, limited. There is no cross-examination of witnesses (the Court only looks at the Affidavit material provided by the parties). The hearings are limited to a maximum of two hours including reading time. Interim hearings are usually heard in the context of a number of hearings listed before a Federal Magistrate or the Judicial Registrar of the Family Court in one day.

Interim hearings are usually held about six weeks after the date of filing depending on individual circumstances. In the Family Court, a case assessment conference with a Family Consultant and a Registrar may have been undertaken and/or there may have been an appointment with a Family Consultant prior to the interim hearing.

In Interim Court hearings:

  1.  Cases are limited to two hours
  2.  The Court can not make or should not make findings of fact in contested as a general proposition
  3. There will be no cross-examination; and
  4. The Court will proceed just on the Affidavit material of the parties, any documents that are tendered and the submissions of the parties or their legal representatives.

The Approach taken by the courts:

Goode’s case says that the “status-quo” or “stability” arguments can no longer be made. It is not good enough for a Court on an interim basis to simply make a finding based on the available evidence and the uncontested facts of certain arrangements that have taken place post-separation and merely preserve those arrangements until a final hearing. In practice, this might mean that it is more likely that the Court will make Orders for equal time on an interim basis. 

The Family Law Act as it is now written says that there is a presumption of equal shared parental responsibility. That presumption can usually only be rebutted if there is evidence of abuse, family violence or, in an interim case, unless the Court considers it would not be appropriate for the presumption to be applied when making that Order, or it is simply not in the best interests of the child or children.

If there is equal shared parental responsibility, then the child or children will spend either equal time with each of the parents or substantial and significant time with the person with whom the child does not live. “Substantial and significant time” means more than just alternate weekends and half school holidays but does not necessarily mean equal time.

Having taken those relevant sections into account, the Court has indicated that an interim hearing the Court should follow the following formula:

  1. Identify the competing proposals of all the parties
  2. Identifying the agreed or uncontested relevant facts (these will be given the most weight)
  3. Identify the issues in dispute at the interim hearing.
  4. Consider the matters in Section 60CC (The section deals with the best interests of the children)  that are relevant and make findings about them if possible on the uncontested material (and this may not be possible)
  5. Deciding whether the presumption of equal shared parental responsibility applies. If it does not, finding on the available evidence that there is abuse of a child, family violence or it’s simply not appropriate to apply.
  6. If presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests.
  7. If the presumption applies and is not rebutted, considering making an Order that the child spend equal time, or substantial and significant time, with both parents.
  8. If equal time or substantial and significant time is not appropriate, then making such Orders are in the best interest of the child
  9. If the presumption of equal shared parental responsibility is rebutted and such other Orders that may be in the best interests of the child or children.

What sort of findings can the Court make on an interim basis?

It’s important to consider what sort of findings a Court can really make at an interim hearing. You will find it very unlikely that a Court will make a positive finding at an interim hearing about matters such as drug use, alcoholism or general allegations of neglect (unless really substantiated elsewhere). An example of what sort of findings the Court might make on an interim basis is provided in Goode’s case and it is as follows:

  1. T attends school and J attends childcare on three days a week on Monday, Thursday and Friday from 8:30am to 4:30pm when the mother works.
  2. Since separation, the Father has been spending time with the children each alternate weekend from Friday afternoon until Sunday afternoon and with the child T on Monday afternoon and Tuesday afternoon each week.
  3. The Mother proposes that T spends one half of the school holidays with the Father and J spend block periods of four (4) consecutive days with the Father including two (2) such blocks during school holidays.
  4. T spends one half of the July school holidays with the Father.
  5. The Mother lives in the former family home and the Father lives with his parents close to the school, day-care and the former family home.
  6. The Father has the assistance of his parents to care for the children and works in his family business with them.
  7. The Mother conceded that there was no issues of risk to the children, the only issue was the amount of time that the Children should spend with the Father.

Conclusion – Is this a change or not?

It will remain to be seen weather on a day to day basis the Family Court of Australia and Federal Magistrates Court will change the way the make Interim Determinations in parenting cases.  While Goode’s case provides a new formula the outcome could well be exactly the same as it was under the old principals of Cowling applying the Family Law Act as it existed apply to 1 July 2006 parties coming to Family Law proceedings and Family Law practitioners will need to be aware though that if Orders are being sort that do not involve a child or children spending equal time or substantial time with both parents they will need to be a very good reason why such orders shouldn’t be made.