What happens to your kids after a divorce or separation? Who bears the responsibility of making important decisions in their lives?

Well, in many cases, it’s actually the Family Court that decides if it’s best for your children to have both parents share parental responsibility or whether just one parent have sole parental responsibility.

Let’s define parental responsibility first.

Parental responsibility refers to all the duties, powers and authority the law gives parents to make long-term decisions for your children.

These laws take into account considerations such as plans and actions regarding each child’s well-being including their education, medical treatment, lifestyle and home life.

What is considered a major long-term decision?

A long-term decision regarding children includes essential issues that have a significant influence on the life of children such as their care, welfare, upbringing and development.

Often, such major long-term decision regarding parental responsibility involves:

  • Name – What will the child be called? Who gets to register their name?
  • Education – Where will the child  go to school? What kind of education is best?
  • Religion – What kind of beliefs should the child be exposed to?
  • Health – The child having an operation or significant medical treatment?
  • Home and relocation? – Where will the child  live? Can the child will leave the country or not?

This list can extend as your children grow.

For instance, other decisions which parents like you might need to address in the future include recreational activities or psychiatric or psychological treatment.

What happens when you and your former partner have equal shared parental responsibility?

For equal shared parental responsibility, both parents have a say in making major long-term decisions. It means you and your former partner need to consult each other and make a genuine effort to arrive at a joint or mutual decision.

In other words, you have a joint parental responsibility to care for your children.

How about sole parental responsibility?

Sole parental responsibility, on the other hand, is a parental responsibility order that allows for only one parent to make major long-term decisions for children.

Sole parental responsibility may be considered appropriate in situations where:

  • There has been abuse or there is a risk of abuse to the children
  • A parent has perpetrated family violence against the children, or the children have been exposed to family violence
  • There is a risk of harm to the children
  • It is impractical for both parents to share decision-making for the children
  • There is an inability of the parents to communicate to such an extent that the children would be affected because decisions would likely to be unable to be made when necessary
  • A parent is not contactable
  • A parent has chosen to be absent from the children’s life or chosen not to consult with the other parent in making decisions

What is the common presumption about equal shared parental responsibility you should know?

In cases where there are no parenting orders or plans in place, it is presumed to be in the best interests of your children for both their parents to have equal shared parental responsibility.

If a parenting matter is brought before the Court, the presumption is also applicable unless the Court orders otherwise.

Such presumption stands to encourage positive co-parenting – allowing you and your former partner the ability to be involved together, consult with each other and have an equal contribution in the long-term decision making of your children.

Take note, however, that this presumption of equal shared parental responsibility only works for the direct parents of the children. Nevertheless, a person who is not a parent of a child can still apply to the Court for parenting orders.

When is the presumption of equal shared parental responsibility not applicable?

The presumption of equal shared parental responsibility comes with exceptions. It can’t be implemented if there are reasonable grounds to believe that a parent (or person who lives with a parent) has:

  • engaged in abuse of the child or another child who was a member of the parent’s family
  • engaged in family violence
  • when making an Interim Order, the Court considers it would not be appropriate to apply the presumption
  • the Court is satisfied it is not in the best interests of the child

What about equal care arrangement?

Once a Court Order has been made for equal shared parental responsibility, you must keep in mind that the presumption of equal shared parental responsibility relates only to the allocation of parental responsibility – not the amount of time the children should spend with each parent.

A Court will not issue a Parenting Order for the children to spend equal time with both parents or have an equal care arrangement, simply because they have made a Court Order for equal shared parental responsibility.

However, if an Order is made for equal shared parental responsibility, the Court must consider these factors:

  • Whether the children spending equal time with each parent is in their best interests
  • Whether the children spending equal time with each of the parents is reasonably practicable
  • Whether the children spending substantial and significant time with each parent would be in their best interests
  • Whether the child spending substantial and significant time with each parent is reasonably practicable

If in doubt, always seek legal advice about parental responsibility.

Separation and divorce can be a confusing time for everyone. Emotions are running high and the stress can make it a tough time to make decisions, especially when it comes to parenting arrangements.

During times like this, it’s easy for parents to get caught up in negotiating the terms involved in parenting plans and parenting arrangements; but at the end of the day, the most important thing to consider is what’s in the best interests of a child.

The Family Court system defines two types of parenting arrangement considerations to factor in when it comes to a child’s best interest: primary considerations and additional considerations.

What are the primary considerations in parenting arrangements?

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

As you can see, the wellbeing and protection of the child’s immediate needs are the primary considerations the Court will consider when they are making decisions around parenting arrangements and Court Orders.

Because of this, the Court places greater emphasis on primary considerations.

What are additional considerations in parenting arrangements?

The Family Court has additional considerations that it takes into account, such as the child’s personal preferences and relationships as well as emotional, intellectual and physical needs.

As the name implies, these are additional considerations to a child’s immediate well-being – however, they’re still relevant in Parenting Agreements and Court Orders.

These can include:

  • any views and wishes of the child that the Court believes are relevant in a separation, such as a child’s maturity and level of understanding of the situation
  • the relationship between the child and each individual parent
  • the relationship between the child and other significant people in their family life (such as grandparents, step-parents or relatives)
  • each parent taking up the opportunity to: participate in making major long-term decisions about the child, spending time with the child and communicating with the child
  • each parenting fulfilling their obligations to nurture and look after the child
  • the likely effect of any changes in the child’s circumstances, including separating the child from: either parent, and any other significant person (such as grandparents, step-parents or relatives)
  • the Court must also consider whether the practical difficulty and expense will significantly impact the child’s right to maintain a relationship with both parents regularly
  • the Court will also consider the capacity of each parent or other significant person in their life, in their ability to provide for the physical, emotional and intellectual needs of the child
  • the child’s maturity, gender, lifestyle and background
  • the parents’ maturity, gender, lifestyle and background
  • if the child is of Aboriginal or Torres Strait Islander: the child’s right to enjoy their culture; and the likely impact any parenting orders will have on that right
  • the parent’s attitude to the child and responsibilities of parenthood
  • any family violence involving the child or a member of the child’s family
  • if there is, or has been a family violence order: the nature of the order, the circumstances in which the order was made, any evidence in those proceedings, any findings made by the Court in those proceedings; and any other relevant matter
  • making an order that would be least likely to lead to further Court proceedings; and
  • any other fact or circumstance that the Court thinks is relevant.

These factors are relevant when determining a child’s best interests in a separation.

While the Court places more weight on primary considerations, these additional considerations are still important in Court Orders and Parenting Arrangements.

Everyone’s situation is unique, which is why the Court tailors its decisions around these factors based on individual circumstances. However, the child’s best interests will always be the main focus during a separation.

If you’re unsure, seek legal advice about your parenting arrangement, separation or divorce.

In this day and age, shared parenting has become more common than ever, and sorting out parenting arrangements for your children in combination with parental conflict can take a huge toll on both parents and children alike. During these times, it’s understandable for parents to become preoccupied with the emotional stresses of the split, that they may forget to focus on the needs of their children.

This can lead to mistakes which can have a detrimental impact on the outcome of your case or work against you when it comes to parenting arrangements and Court Orders.

Because of this, it’s important to be prepared with the likely obstacles you will face – not only legally, but emotionally and financially as well.

Below is a list of the frequent mistakes parents can make when involved in parenting separation matters, so you know what to avoid for the good of everyone.

Criticising the other parent to the child

This is, unfortunately, the most common mistake parents make and can be displayed by both mothers and fathers alike in many cases.

For most parents, the reality is that their child is very aware of the conflict that goes on between both sides of the separation, as well as the interactions between both parents. This leads to the child acting as a ‘neutral listening post’.

What many parents fail to realise is that, amid their heightened emotions, the child can suffer in many different ways. A child’s emotional wellbeing can be impacted by the negative views of one parent towards the other, making them feel pressured to take sides.

It is important to remember that children are often curious and will likely overhear your conversations with friends and family. Bearing this in mind, be cautious of how you speak about your spouse when your child is around, as it can undermine the relationship that your child has with the other parent.

As children grow older, even into adulthood, they tend to look at their parent’s behaviour and may judge you if they perceive you have undermined their relationship with the other parent.

Apart from the impact on your children, denigrating the other parent may also cause the Family Court to look unfavourably upon you as Judges are very aware of the impact this has on children. Such behaviour can see parenting arrangements and Court Orders change drastically, simply due to how one parent refers to the other.

The most effective way to combat this mistake is to ensure that you have proper channels of stress relief.

Speaking to a Psychologist, a Psychiatrist or a GP is a good way to ensure you have the emotional support necessary to cope with your concerns over your separation by providing you with assistance.

Trying to make your child feel sorry for you, even if unintentional

This issue is referred to by the Family Law Courts as “attempting to align a child’s views to those of a parent”, or parental alienation.

This is a particularly harmful act, as it has the same consequences upon your child as discussed in item 1 above. It can also demonstrate to the Court you are not child-focused and suggests an issue of your inability to co-parent and act in the child’s best interests.

It’s also not helpful for your own relationship with the child as it effectively reverses the parent/child role, with your child taking on the role of the protective parent. Children require your guidance, and not the other way around.

Such behaviour can be seen as malicious, with a deliberate intention to hurt the other parent – such as telling the child that the other parent doesn’t pay for anything and to ask them for money, or telling the child that the other parent is a bad person for whatever reason.

However, subtler, unintentional forms of drawing sympathy can also cause harm, such as crying in front of the child, telling the child that the other parent is taking you to Court and expressing distress over the family breakdown such as providing details about not being given any money or being ‘kicked out’ of the family home.

The potential impact your sub-conscious behaviour can have on your child can be significant and, in most cases, cannot be undone. So, you must always be mindful of your actions and behaviour around your child during a separation or divorce.

Not trying to communicate with the other parent

This is a major issue for two reasons, the most important of which is that your children need to see their parents communicating for the good of their well-being. Failure to communicate with the other parent can be extremely detrimental to many aspects of your child’s life, including medical care, education and social development.

Children miss out on things when their parents can’t communicate. They also learn to play one parent off against the other, trying to get what they want.

The second reason is that the Family Court may take a negative view against you if you fail to try to communicate with the other parent.

In parenting matters, the Court’s primary concern is the best interests of the child – which is what its decisions will be based on. Failure to communicate will appear to that Court as if you’re not willing to promote the relationship between the child and the other parent, which is an essential part of parental bonding and social development.

You don’t need to be best friends. But you chose to have a child together, so the Court expects that you behave in a child-focused manner and exchange important information for the sake of your child. If you find it difficult to talk with the other parent, you may want to agree on one medium of communication that will minimise conflict. Many separated parents prefer to email, text, or use a communication platform, as they find that written communication elicits less emotion and keeps conversations more child-focused and appropriate.

If the Court considers that you are genuinely not willing to promote a relationship between the child and the other parent without good reason, there is a risk that the Family Court will say a shared care relationship can’t work and the other parent may become the primary carer. In some cases, they may even be given sole responsibility for major long-term decisions.

Preventing Access to a Child

While many parents believe they may be doing the right thing by withholding the child from contacting the other parent, it’s often one of the worst things a parent could do.

There are some cases where there is a need to protect a child from being physically or emotionally harmed. However, if there is no risk to the child, then the Court expects to see both parents are open and keen to demonstrate that they are willing to co-parent and promote a relationship between the child and the other parent. If you withhold a child from the other parent without a good and justifiable reason, you could find yourself losing primary care of your children for your failure to show a willingness to encourage the children’s relationship with the other parent.

Having said that, there are some circumstances where it is essential for a parent to withhold the child from access by the other parent. These are when serious situations arise where the child is at risk of harm, be it emotional or physical, and in need of protection from the other parent.

Some instances where this is deemed necessary can include:

  • The other parent is violent towards the child
  • The other parent is taking drugs in the presence of the child
  • The other parent is the victim of domestic violence and the child may be exposed to this behaviour
  • There is a risk of the child being exposed or subjected to sexual abuse
  • The other parent may potentially expose the child to harm
  • The other parent has done or said something to make you believe that they will not return the child at the end of their access visit.

If your concern for the child’s well-being is so serious that it causes you to prevent access to the other parent, we strongly recommend attempting to maintain some form of contact with the child and the other parent (perhaps by phone or video link such as Facebook Messenger or Facetime) or arranging supervised visits (if appropriate) until Court Orders are made by the local Family Court. This will show the Court that you are serious about attempting to maintain a relationship between the child and the other parent, while maintaining the safety and well-being of the child.

Remember, withholding access to a child without any justification can have serious ramifications for you in Court proceedings. So, you may wish to seek legal advice as to possible alternate measures and if your actions are reasonable before denying access.

Lying About Drug Use or Alcohol

Drug and alcohol abuse is not uncommon in family law situations or parental separations. What is also common is the frequency of parents who try to hide or deny the use of drugs or alcohol.

Many parents with a history of drug and alcohol consumption understandably believe that their use of such substances will impede upon their chances of gaining parental responsibilities in parenting arrangements.

This can be the case, however, it is important to recognise that the Family Law Courts are not as concerned about drug or alcohol use as much as they are concerned about how use may impact your children and your ability to be a good parent.

Taking steps to minimise substance abuse, such as counselling or rehabilitation, and making an effort to stay away from drugs and alcohol during visits with the child can show the Court that you can maintain self-control and will improve your chances of having further contact with your children.

Remember the Court is more concerned with your future ability to care for your children appropriately, rather than your past.

Splitting up the children

It is becoming more and more common to see blended families today. The Court will take into account the relationships between all types of siblings, including half-siblings and step-siblings – not just biological siblings.

In the instance that parents with blended families separate, it is important to consider the impact on the children if they are split up. People tend to focus on only the biological children of the parents and fail to accommodate for the other children involved.

Seeking to separate the children may suggest to the Court that the parent is not child-focused. The Family Court does not usually like to separate children unless they have no other option.

It may be wise not to ask the Court that children be separated and consider alternative measures instead. However, on occasion, the Court may decide that the best option to accommodate all of the children’s best interests and their well-being is for them to be separated.

We recommend you seek legal advice in this regard, as it applies to your individual circumstances.

Not Being Properly Prepared for Court Specialists and Court Experts

Family report writers are called on to be impartial and provide recommendations based on the best interests of the child.  The Court places a high level of trust in family report writers’ observations of the parents and interactions with the children.

Although it is a common part of many family law matters, people tend to underestimate the importance of family reports and the interviews conducted with all parties during the separation process.

Many Judges rely heavily on the recommendations of the family report writer or psychologist, giving great weight to the analysis of these experts having interviewed all relevant parties and the children, before giving their independent opinion.

While decisions aren’t always made solely based on family reports by court experts, they weigh heavily on the decisions made by the Court (such as Court Orders).

You must let your children speak for themselves as children will normally be quite honest, or are bad liars when questioned during family report interviews. It will be obvious to the report writer when a parent has tried to coach the child for the interview. Children do not like to be made to choose one parent over the other and any manipulation by one parent will display unfavourably in the written report.

To prepare for a family report interview, you should practice refraining from saying anything negative about the other parent. This will help you to be more balanced and child-focused during the interview process.

Remember, from the moment you speak to the family report writer or their secretary on the phone to arrange interviews, through to arriving in the reception area, interacting with your children and speaking to the other parent, right up until when you leave the interviews, everything you say and do is being observed.

Allowing Children to Play Parents off Against Each Other

When parents fail to communicate or are competing for the affection of their children, children tend to play one parent off against the other – which then causes parents to lose their ability to co-parent effectively.

Rules and structure are vital to the growth of a child. So, when this is lacking, it tends to encourage children to test the boundaries of both parents, often seeing an opportunity by making one – or both – parents feel guilty.

While children may test the boundaries from time to time, they need their parents to make decisions for them.  If you cave in to your child’s demands, it can lead to bad parenting decisions and increasing parental conflict.

A good way to avoid this happening is to ensure communication between parents relating to the separation is not in the presence of the child.

Involving Children in Adult Conflict and Legal Proceedings

As far as Judges are concerned, family law proceedings are for the involvement of the parents only and children should not be involved in any aspect of the case. A courtroom is no place for a child and anyone under 18 years is not permitted in the family law courtrooms without the Judge’s permission.

There are many reasons why your child should not be involved in the court proceedings and this includes showing your child court documents. It is considered extremely inappropriate because you are involving your child in adult issues that children should not be privy to. Your child may not be aware of various matters, such as drug use, an affair or instances of poor parenting.

Children often see their parents as heroes, and information that may be exchanged through family law proceedings is not something your child needs to know. You may hinder a child’s view of the other parent, or even their view of you in some cases and undermine the relationship between the child and parent.

If deemed necessary, the appropriate way to include a child’s wishes is by arranging a family report.

Not putting the children’s best interests ahead of your own decision making

Understandably, people can often become completely consumed by their separation. But when parents are completely entrenched in parenting separation matters, it can often lead to them focusing on their own interests and the negative things about the other parent, over and above what is best for their children.

A common example is living arrangements. For example, wanting to live somewhere that is close to work, wanting your children to live with you to minimise child support, or not agreeing to the other parent’s parenting plan because you don’t want them to dictate when you see the children.

It’s common for parents to put forward their own agendas to be portrayed as if it is about the interests of the children. The Family Court sees this time and time again and can easily identify when parents aren’t being child-focused.

Before you make a decision that concerns your child, it is best to ask yourself if what you are about to do is truly in the best interests of your child. If the answer is no, then it should be avoided as the Court will likely see it as you putting your needs ahead of your child.

The ultimate decision of the Court will always reflect the best interests of the children.

While Judges will investigate the many factors involved in determining their decision, they are human, so they will still be influenced by their own opinions. This means it is incredibly important to act in a way that will not leave them questioning your judgement.

If you aren’t sure you’re doing the right thing, it’s important to seek legal advice.

Going through a divorce or legal separation is already an overwhelmingly emotional experience. You also need to deal with negotiations regarding property settlement.

However, one of the most difficult parts of this process is trying to settle on the ideal parenting arrangements for your children.

It’s easy to get confused or feel discouraged due to unreliable myths you often hear people say about parenting arrangements and parenting orders.

To help provide some clarity, here are the 10 common myths around parenting agreements during a separation or divorce.

The mother always has more power

The Court will always prioritise what’s best for your children’s interests when it comes to deciding on who they should live with. As such, it’s wrong to assume the Court will place a bias on gender or that mothers have the upper hand in this matter.

Remember – there are no laws that state children should live primarily with the mother rather than the father after a separation.

Parenting plans are binding

Parenting plans refer to the agreements signed off by you and your former partner, but which are not submitted to the Court for approval and formalised into Consent Orders.  These are not legally binding and cannot be enforced by the Court if they are breached.

Parenting Orders, whether made by consent or decided by a Judge, are the only formal document that can be enforced by the Court. Therefore, serious consequences and penalties such as payment of fines, compensation, community service, or imprisonment can be ordered against either parent due to a breach.

Getting a Court Order is the solution if both parents can’t agree

You can’t go straight to Court and demand for the Judge to make an immediate Order just because you and your former partner or spouse can’t reach a compromise for your parenting matters.

There is a significant amount of time and work involved in preparing court documents, and it’s also common to experience delays for several months before your case may even be listed for the first hearing.

Unless it’s urgent or there is a real risk of harm or abuse to the children, parents must focus on a more serious attempt of mediation – making a genuine effort to reach an agreement before court proceedings can be filed.

There is no need to consult with the other parent about decisions affecting the children

If there are Parenting Orders for joint parental responsibility, you are required to consult and negotiate with your former partner or spouse when making major long-term decisions for your children. You also need to disclose important information like your children’s medical appointments, school information and travel plans.

You could be in breach if you do not comply with Parenting Orders that have been made by the Court. The other parent may file a contravention application against you, which could then have serious consequences resulting in penalties being imposed by the Court.  The other parent may also apply to the Court, and be successful, in varying the  existing Parenting Orders, on terms which you may not agree with.

Even if there are no Parenting Orders, the Court may still decide that you should have consulted the other parent about major long-term decisions such as schooling and education, religion, serious medical appointments or relocating with the children.

For example, if you unilaterally change the children’s school or relocate with the children so that it impedes on their relationship with the other parent, the Court may make an Order that the children be returned to their previous school or that the children be returned to live within close proximity to where they were living before.

Your children can make their own decisions about where they want to live once they turn 12 years old

Your children can express where they wish to live, but this is just one factor amongst many things the Court will take into consideration when determining the appropriate parenting arrangements for them.

The law sets no exact age at which children can decide for themselves where they want to live or stay. As such, the Court takes into account their age, maturity and reasons and understanding of the decision when considering their preferences.

Divorce applications deal with parenting arrangements

Your divorce application only deals with obtaining your divorce so that you are no longer legally married. However, it doesn’t automatically put parenting arrangements in place.

Ensuring a Parenting Order is made, either by consent or by a Judge, is the key to formalising your parenting arrangements to make them binding and enforceable.

There is nothing you can do when the other parent is bad-mouthing you

This is not true. You can actually seek orders that prevent your former partner or spouse from denigrating or insulting you or your family members or other significant persons to your children.

It’s not necessary to follow Court Orders

Serious ramifications can result from breaching Court Orders. Since the Court holds the power to issue penalties ranging from fines up to imprisonment, it is not wise for you to breach Court Orders – especially without seeking legal advice first.

A Parenting Order will override any Domestic (Family ) Violence Orders

This is not always the case.  Under Australian domestic violence laws, the local Magistrates Court which deals with family violence matters must consider any existing parenting orders. Nevertheless, it does not mean that the domestic violence Courts will limit their powers so as to make Protection Orders (i.e. Domestic Violence or Family Violence Orders) that are consistent with the existing parenting ones, particularly when the safety of your children is at stake.

The local domestic violence Courts may revive, vary, discharge or suspend parenting orders.

The Family Law Courts must take into account the child’s best interests being the paramount consideration, and to the extent possible ensure the Order is consistent with any Family Violence Order and does not expose a person to an unacceptable risk of family violence.  The Order may include safeguards the Court considers necessary for the safety of the children or persons affected by the Order.

When a Protection Order contradicts a Parenting Order, you may need to apply to the Family Law Courts to obtain a declaration that that the Parenting Order is inconsistent with an existing Family Violence Order and the Family Violence Order is invalid.

Not spending time with children means there’s no need to pay for child support

If you are the biological parent of your children, you bear the duty to maintain and provide financial support to them, regardless of whether you’re spending time with them or not. You  need to offer financial assistance, even if the other parent prevents you from spending time with your children.

The amount you’ll pay is assessed and determined by the Child Support Agency based on factors such as how much overnight time each parent has the children in their care for, the earnings of each parent and the age and needs of each child.

If in doubt, always seek legal advice about parenting matters.

Parenting arrangements should always prioritise the best interests of your children. However, this can sometimes seem easier said than done, especially when your children are still quite young and going through a lot of developmental changes over the next few years.

In fact, social science studies show that children who are in the 0 to 5-year old age bracket need stability, routine and consistency to thrive and meet all their developmental milestones.

This is the reason why separation from either parent can be a difficult adjustment for children, especially around these ages. Due to their young age, they may end up just staying with only one parent or spending alternate time with you and your former partner or spouse.

Because of this, it’s necessary to understand the impact of the new family dynamic to your children’s emotional and psychological health. This way, you can build the right parenting arrangements to suit younger children.

What are the right parenting arrangements for overnight stays?

Family law does not state a specific age when your child should commence staying overnight with a particular parent. You may have decided, for stability, that your child remains with you while they’re very young.

So, how do you know if your child is ready to spend time and bond with your former partner or spouse?

Most likely, it will be dependent on your child’s coping ability to be separated from you (assuming you’re the primary parent) and their common environment.

To help determine whether it’s fine for your child to spend overnight time away from you, here are some questions to ask yourself:

Is my child breastfed?

Generally, if a child is still breastfeeding, it’s safe to assume he or she is likely too young to spend overnights away from their mother. Nevertheless, arrangements can be made to make this possible, such as the mother expressing and storing breastmilk to bottle feed the child during the time they are away from each other.

In all cases, consider what’s best for your child and make parenting arrangements that will allow him or her to spend meaningful time with the non-primary parent, while still allowing them to be breastfed.

How much time does my child spend away from me (their primary parent)?

If your child is spending 5 days a week in day-care or in the care of a person that is not biologically related to them, then it is likely he or she is used to spending time away from you (considering that you are the primary parent).

It means, your child should be able to transition to overnight stays with their other parent without too much difficulty.

What is my child’s routine when they are with their other parent?

To give your child the best chance of coping well with overnight time, both you and the other parent should be willing to maintain consistency and routine between households.

Communication is key here. While it’s not easy for separated parents to agree on issues such as nap times and a feeding schedule, it is still achievable through the help of methods such as email and texts or other communication apps that are available for separated parents.

Am I available to care for my child during their overnight stay?

The Family Law Courts like to see that the parents are caring for the child overnight.

It is because newborns and toddlers require 24-hour care. This is not to say that you cannot leave your child with a trusted friend or relative, but you have to remember that there is no substitute for the care of the biological parent.

What are the best parenting arrangements for the 0 to 4-year age group, then?

Newborns and toddlers should spend short and regular time with the other parent. The reason for this is that having bonding moments and gaining familiarity with the other parent will help your child not to get stressed when he or she is away from you as the primary parent.

Here’s an example of a parenting arrangement appropriate for a young child.

The child lives with one parent and spends time with the other parent each Monday, Wednesday, and Saturday from 9am to 11am.

Around 3 to 4 years of age, children start to become more resilient and aware of their primary attachments. Obviously, the times and days provided in the example above can be adjusted as the child continues to grow and their needs begin to evolve.

For instance, if we build on the previous example, a suitable parenting arrangement schedule for the child to spend time with the other parent (not the parent they primarily live with) may look like this:

Upon the child turning 1 year old:

(a)  Each week on Monday and Wednesday from 9am to 1pm; and

(b)  Each weekend on Saturday from 9am to 5pm.

Upon the child turning 18 months old:

(a)  Each week on Monday and Wednesday from 9am to 5pm; and

(b)  Each weekend on Saturday from 9am to 5pm.

Upon the child turning 2 ½  years old:

(a)  Each week on Monday from 9am to 5pm; and

(b)  Each alternate weekend on Saturday and Sunday from 9am to 5pm each day.

Upon the child turning 3 years old:

(a)  Each week on Monday and Wednesday from after day-care or 3pm to 6pm; and

(b)  Each alternate weekend from 5pm Friday to 5pm Saturday.

Upon the child turning 4 years old:

(a)  Each week from after day-care or 3pm Monday to 9am Tuesday; and

(b)  Each alternate weekend from 5pm Friday to 5pm Sunday..

Upon the child commencing Kindergarten or Prep:

(a)  Each alternate weekend from after-school Friday to before-school Monday; and

(b)  Each alternate week from after-school Wednesday to before-school Thursday.

As you see, this schedule allows for the gradual progression of time appropriate  with a child’s age and stage of development.

However, this is a general guide only.  Every family is unique and has different factors that are relevant and ought be taken into account. You need to consider what arrangement would be most appropriate and in the best interests of your child based on your individual circumstances.  In your specific case, you may modify the days and times for each stage to suit your child’s needs and routine and both parents’ individual schedules.

Your separation or divorce with your child’s other parent can be traumatic for him or her, especially during their development stage. To reduce this, it’s important for you and your former partner to come up with the appropriate parenting arrangements that will accommodate your child’s welfare. By working together, you can tailor a set-up that will make it easy for your child to adjust and cope with spending time with both parents separately.

If in doubt, seek legal advice about your parenting arrangements.

Refer to the panel of lawyers on our website who are our trusted partners and can give you the advice you need.

There may be situations regarding child custody or child support matters when you consider using a DNA test to determine who the biological parents of a child are.

To learn more, here’s how DNA testing can establish parentage.

What is a DNA test?

Also referred to as a paternity test, a DNA test is conducted by a medical specialist to determine whether a person is the biological parent of a child.

What can a DNA test be used for?

DNA tests aid in establishing the parentage of a child. Legally, they allow you:

  • to obtain child support from a parent
  • to oppose child support being sought
  • to prove paternity in parenting matters

Aside from these legal reasons, DNA tests can also help provide you with peace of mind regarding parenting matters during a divorce or separation.

What are the procedures for DNA testing?

There are generally two types of parentage testing procedures.

First is the ‘peace of mind testing’ (which is non-legal testing). This is known as non-NATA testing or self-sampling, and it does not meet the legal requirements of a Court-ordered test.

Here, simple mouth swab samples are taken by the individual (usually in their own home), as opposed to an authorised medical collector like a Pathologist. Once a sample is collected, they will be sent to an authorised collector for analysis. Peace of mind DNA testing can cost anywhere upwards of $150+.

The other type is called legal paternity testing or NATA accredited testing and usually costs around $825 or more.

Legal paternity testing is conducted by an accredited medical Pathologist laboratory which collects samples from both of the parents and the child. Both parents and the child are required to have formal identification before undertaking the DNA testing procedure.

NATA approved DNA testing in Australia requires the consent of the child’s mother. However, a peace of mind test can be taken without the mother’s consent – samples just need to be collected by the father and be sent to a laboratory for results.

Whether a peace of mind test or a legally binding DNA test is performed the results will still be presented in the same way.  If the person is NOT a parent of the child then the result will come back as 100% accurate.  If the person is determined by the test to be the parent then the result will be displayed as a percentage of likelihood that the person is a parent.  For example There exists a probability of 99.9887780% that Person A is a parent of the child.  No test proving that a person is in fact a parent is 100% certain.

In cases where one parent refuses to participate in paternity testing, the Family Court may make a Court Order to require that person to participate. This Order requires the mother to present the child for the collection of a sample and the father to present himself for the collection of his own sample.

What should I do if I need to establish parentage for child support purposes?

The parents of a child have a duty to look after them when separated or divorced. In Australia, this happens by providing child support payments.

The Family Law Act 1975 (Cth) states that if a person is listed as the father on a child’s birth certificate, he will be under the presumption of the law that he is indeed the father of the child. Usually, this will be sufficient for child support purposes.

However, if the child’s birth certificate does not list the biological father as the child’s father, the Department of Human Services will not mandate that the father must pay the mother child support payments unless one of the following is produced:

  • An updated birth certificate listing the biological father
  • A statutory declaration signed by the biological father declaring that he is the father of the child (there is a specific template which should be used)
  • An Order from the Court stating that the father is the biological father of the child from to the results of a DNA test

It is always preferable to provide the father with these three options and ask him to select one. If the father did not agree with updating the birth certificate or signing a statutory declaration for the Department, you should request he take part in a DNA test.

Nevertheless, if both parties have agreed to take part in a DNA test, the intervention of the Court won’t be required.

The following steps must be done instead:

  • The biological mother of the child (if the child is less than 18 years of age) and the father are to sign the application for a DNA test.
  • The application will be processed by the company selected by both parties. Each party is then provided with an appointment time to provide a DNA sample.
  • After a short period of time, the parties will be provided with a report which analyses the samples and outlines the possibility that the father is the biological father of the child.

If it is found that there is a very high probability that the child and the father are biologically related, you should ask the father to sign the statutory declaration that will then be passed to a child support agency.

If the father refuses to sign the statutory declaration, you will have to apply to the court for an Order that states the father is the biological father of the child, as evidenced by the DNA report. This Court Order is needed because the DNA report itself is not sufficient to establish parentage for child support purposes.

Just keep in mind that if you are considering DNA testing for child support issues or parenting matters, you should always choose the legal paternity testing option.

What should I do if I want to disprove I am the father of a child?

If you believe you are not the biological father of a child, then you can use a DNA test to provide sufficient proof.

A DNA test is the simplest and most cost-effective way to prove or disprove paternity.

If cost is a factor, the father can request the mother to pay half the costs of obtaining a DNA test.

Here’s a recent DNA test example.

A mother of a six-month-old child was having difficulty obtaining child support from the father. The father had blocked all communications from the mother and refused to recognise the son.

The father was provided with the following options:

  1. Sign the birth certificate of the child.
  2. Complete the statutory declaration provided by the Department.
  3. Take part in a DNA test with the costs to be shared between the parties.

The father agreed to take the DNA test so that this matter didn’t need to proceed to Court for a DNA test to be ordered.

The father and child provided samples to the testing facility and a report was produced. It was found that there was a very high probability of them being biologically related.

As a result of that report, the father agreed to sign the statutory declaration produced by the Department. After this, the mother was able to start receiving child support payments.

If in doubt, always seek legal advice about establishing parentage.

During a separation or a divorce, you’ve probably heard the term “Consent Orders”.

But what does a Consent Order really mean? Why are they important?

If you have children with your ex-spouse or you share assets, then it’s important to become well-informed about this topic. So, to help, here is a quick guide to Consent Orders.

What is a consent order?

A Consent Order refers to the legally enforceable agreement made by a Judge or approved by the Family Court. It is negotiated between two or more parties to settle disputes and involves actions that need to be upheld.

For Family Law, where the case involves separation or divorce, a Consent Order can relate to either parenting of a child or property settlement i.e. the division of assets and allocation of debts.

A Parenting Order is a set of orders made by a Court about parenting arrangements for a child, while Property Orders are a set of orders from a Court regarding the division of assets, debts and payment of money to a spouse or partner.

How to apply for a consent order

A Court can issue you with a Parenting Order or a Property Order either during Court proceedings that have already been commenced where there were issues in dispute (contested matters), or prior to either party having started Court proceedings, where there is an agreement between the parties involved (a Consent Order).    .

If you opt to settle your parenting arrangements and property matters through an agreement with your partner or spouse, you can formalise it into writing and make it legally binding  by applying to the Family Court of Australia for Consent Orders.  You do not need to appear in Court before a Judge when filing an Application for Consent Orders, where Court proceedings have not already been commenced.

If the Court is satisfied that your proposed orders are “just and equitable” for property and financial matters and/or are in the ‘best interests of the children’ for parenting arrangements, the Court will approve them and provide you with a sealed copy of the Orders.

Parenting Orders and Property Orders made by consent have the same weight and enforceability as if they were Orders that had been decided by a Judge after a contested hearing.

What is a minute of consent for?

If you’ve made an Application for Consent Orders, or have reached an agreement after Court proceedings have been commenced, as per the above, you are requesting the Court to make Consent Orders.  You file a Minute of Consent Order which is a document setting out the Orders you are asking the Judge to approve that has been signed by both parties.

How much will it cost to file consent orders?

The current Court filing fee for Consent Orders is $165.00 (although this is subject to change – check your local Family Court for the latest fees).

Nevertheless, you may be exempted from paying if you are going through financial hardship or if you are the primary cardholder of a Health Care Card, Health Benefit Card, Pensioner Concession Card, Commonwealth Seniors Health Care or any other card issued by Centrelink or the Department of Veterans’ Affairs that entitles you to commonwealth health concessions.

How long do consent orders take to process?

If you have submitted your documents correctly and the Family Court is satisfied in making the Consent Orders, you will usually receive the sealed orders within 4 to 6 weeks from the filing date.

If in doubt, contact the Court directly for an update.

Are consent orders legally binding?

Yes. It is important to remember that Consent Orders are legally binding.

While Consent Orders are generally enforceable by the Family Court, there are still limited circumstances when such Property Orders concerning property and financial matters can be overturned due to:

  • fraud
  • duress
  • suppression of evidence
  • failure to disclose relevant information
  • giving of false evidence
  • Proceeds of Crime Order subsequently made
  • circumstances have arisen since the Court Order was made where it is impracticable for part of the order to be carried out
  • circumstances of an exceptional nature have arisen since the Court Order was made relating to the care, welfare and development of a child of the relationship where a party caring for the child suffer hardship if the Order is not varied
  • due to a person’s default under the Orders, it is just and equitable to vary the order

For parenting matters, on the other hand, it’s expected that Parenting Orders made will be in force until the children turn 18 years of age – unless, of course, a new Parenting Order is put in place.

So, if you and the other party agree to change these arrangements, you may enter into a parenting plan or apply for Consent Orders that will modify the existing ones.

Why is it necessary to get consent orders over a parenting plan?

A parenting plan is a written agreement signed by the parties that emphasises the parenting arrangements you have with your former partner.

This is not legally enforceable by the Court, which is why it does not bear the same consequences and legal rights as a Parenting Order.  However, the Court will have regard to the terms of the most recent parenting plan if doing so would be in the best interests of the children.

If you wish to make your parenting agreements binding and enforceable, you should formalise them into Consent Orders.

What happens if consent orders are breached?

Provided that it has not been altered by a subsequent parenting plan, the Court can penalise you or your former partner or spouse if there is a failure to comply with a Parenting Order or enforce the terms of a Property Order that hasn’t been complied with.

If your former partner or spouse has not complied with a Property Order, you may need to commence enforcement proceedings so that the terms of the Order are carried out.

If a Parenting Order is breached, you may wish to file a contravention application (in other words, notifying the Court of a breach).

The Court will, then, consider all the facts to determine if:

  • the contravention was established or not
  • the contravention was established but there was a reasonable excuse
  • if there was a less serious contravention without reasonable excuse
  • if there was a more serious contravention without reasonable excuse

If the Court determines a party has failed to comply with a Parenting Order without a reasonable excuse, depending on the circumstances and the type and seriousness of the contravention, the Family Law Courts have the power to:

  • vary the Parenting Order
  • order a post-separation parenting program be attended
  • compensate for lost time with the children as a result of the contravention
  • require a bond be entered into
  • order the other party’s legal costs to be paid (either partially or in full)
  • order compensation for reasonable expenses lost as a result of the contravention
  • require community service to be participated in
  • order a fine to be paid
  • order a sentence of imprisonment
  • adjourn the case to allow the other party to apply for a further Parenting Order

You may not actually want the other party punished for breaching the Parenting Orders.  Instead you may simply want to ensure the resumption of the existing Parenting Orders, or alternately you want to vary the Orders given they have not been complied with and there may be circumstances that have changed such that they are no longer workable or best for the children.

In these circumstances, you may be able to file and Application in a Case rather than a Contravention Application.  You should seek legal advice as to your individual situation so that the Application you file is the most likely to achieve the outcome you are seeking.

It is important to obtain independent legal advice to ensure you are aware of your rights and responsibilities when it comes to Court Orders.

Attaining professional help can also allow you to understand the meaning, effect and consequences of the Court Orders you are seeking. Our referral lawyers can advise you if your agreement is just and equitable and/or in the children’s best interests and likely to be approved by the Family Law Courts.

If you are separated or divorced and you have children with your spouse or partner, then you’ve probably been involved  parenting agreement discussions and trying to work out a parenting arrangement.

These are agreements between you and your ex-partner regarding how you will both continue to look after your children. Sometimes, you may be issued a legally recognised parenting order from the Family Law Courts which you both have to follow.

Here’s some more information about Parenting Orders and what to do if you wish to make changes.

What is a parenting order?

A parenting order is a set of official orders made by a Court regarding parenting arrangements for a child or children involved in a separation.

They are set in place until the child becomes an adult at 18 years old. However, over time, the needs and circumstances of the child can change – meaning that the orders may need to adapt or be varied at some point.

Children naturally develop over time, from infancy to young adulthood, which means that their needs are unique and highly individual. As a result, don’t expect the parenting orders to continue to remain the same over time.

Parenting orders will likely need to change at some point, to align with where your child will be developmentally, socially, and intellectually in the weeks, months and years ahead. The Family Law Courts recognise this.

So, why then have parenting orders?

Even though parenting orders may change at some point, they still have an important role to play to create a structure for your child, open communication between  parents and reduce the risk of conflict between parents.

Having parenting orders means that there is a structured set of arrangements for your child put in place by the Court, enabling the parents to then structure their life around this and provide a routine and stability for their child. Parenting orders also provide an agreed framework for the parents to spend time with their children, which means that the risk of conflict or confusion is reduced.

How to change parenting orders

Sometimes, parenting orders may not always complement your schedule and can sometimes be highly impractical. If that is the case, you will need to seek legal advice around your options to vary the existing parental orders.

To change Parenting Orders, you may need to:

  • confer with the other parent to try to come to an agreement
  • consult a Family Dispute Resolution Practitioner to arrange a mediation
  • engage a Family Report Writer or Parental Coordinator to assist in determining the best interests of the child
  • commence court proceedings seeking orders to vary the existing parenting orders

What if parenting orders are breached?

Both parents should follow the parenting arrangements made by the Judge in the Court Orders, unless both parents agree in writing to change the arrangements set out in the Parenting Orders.

However, any action made by either parent that goes against the parenting agreement may have legal consequences. Serious ramifications for breaching the orders can include:

  • fines
  • make-up time
  • community service
  • participating in parenting programs
  • jail time
  • paying the legal costs of the other party and
  • other consequences depending on the seriousness of the contravention.

Please, seek legal advice immediately if there has been a breach of your parenting orders by the other parent or you are considering breaching the orders for a specific reason or if you believe the existing parenting orders should be changed.

Family dispute resolution prior to changing parenting orders

If the other parent will not agree to change the existing parenting orders, your first option is to try family dispute resolution.

Family dispute resolution, also known as mediation, is an effective way to resolve the differences between you and your ex-partner before resorting to starting proceedings in the Family Law Courts – especially when emotions are running high and it’s hard to find a middle ground.

When is mediation (family dispute resolution) not appropriate?

There are some exceptions that may apply to participating in mediation prior to attending Court.  This will bee assessed by your family dispute resolution practitioner (mediator).

These include:

  • if there is an agreement and the parenting orders are by consent (i.e. both parents have agreed to make a new Parenting Order or amend an existing Parenting Order and wish to formalise the new agreement by Consent Orders)
  • there are reasonable grounds to believe that there has been child abuse or family violence by a party or there is a risk of child abuse or family violence
  • there are reasonable grounds to believe that a person has behaved in a way that shows a serious disregard for their obligations under the Order
  • in circumstances of urgency; or
  • one or both parents are unable to participate effectively in mediation.

What if you reach an agreement with family dispute resolution?

If you reach an agreement with your ex-partner in mediation, you can formalise this agreement in the form of a parenting plan or a parenting order. However, a parenting plan is not legally binding, as it is more of a general discussion between parents.

So, if you have been able to reach an agreement through mediation, you may wish to consider obtaining Parenting Orders by submitting an Application for Consent Orders to the Family Court. This way, the changes will be legally recognised and therefore, enforceable. In this circumstance, you may wish to also seek legal advice to oversee the new Consent Orders that are drafted.

If you are in the unfortunate situation where you have attended mediation and were unable to reach an agreement, you will need to consider your next option – commencing proceedings in Family Court.

Commencing proceedings in court to change parenting orders

Whether minor or major, any changes to Parenting Orders which have not been agreed will not be considered by a Court unless there has been a significant and substantial change in circumstances.

If a parent seeks to vary the Parenting Orders, they must satisfy the court that there has been a significant and substantial change in circumstances that warrant a variation of existing parenting orders.

Broadly speaking, there are two classes of change:

  1. The parent seeking to vary the existing Parenting Order is able to establish to the Court that there was a material fact that was not disclosed to the Court when the Parenting Orders was made, or
  2. The parent seeking to vary the existing Parenting Order is able to present evidence of new circumstances that have arisen since the making of the original Orders.

So, what is a significant and substantial change?

The Family Law Courts have accepted (in some cases) the following matters as being a significant and substantial change in circumstances such to allow the parents to reopen the proceedings and seek to vary the existing parenting orders:

  1. Where one or both parents failed to disclose domestic violence perpetrated by one parent against the other prior to the making of final parenting orders
  2. Significant opposing behavioural changes in a child
  3. Where a child has been diagnosed with a significant health issue since final Parenting Orders were made which required a level of care for the child that rendered the existing Parenting Orders impracticable
  4. Re-marriage of one or both parents where the re-married parent was able to provide stable accommodation and care for the child after having re-married
  5. Where one parent has relocated or wishes to relocate or
  6. Where one parent has contravened and/or continues to contravene final Parenting Orders.

It is important to remember that unless the court has approved to vary an existing order or both parents have mutually agreed, both parents must comply with the existing parenting orders.

Ultimately, it is at the discretion of the Court to vary existing Parenting Orders and the Court will only do so if it’s in the child’s best interest.

Changing family court oOrders

If you are considering varying your existing Parenting Orders or believe you may fall into one or more of the categories that allow Parenting Orders to be varied, you should seek legal advice.

One of our referral partners’ who is a suitably qualified lawyer should be able to tell you whether or not your circumstances satisfy the conditions.

When a couple separates, it can be a difficult time – especially when children are involved.

Should you and your partner decide to separate, and you have dependent children together, the family law system encourages both parents to work out amicable arrangements for the children, either through a Parenting Plan or a Parenting Order.

What is a parenting plan?

A Parenting Plan is a written document which sets out the agreed arrangements that have been put into place for your children. This doesn’t require having to go to Court.

What is a parenting order?

A Parenting Order is a list of legally enforceable instructions made by a Court concerning the parenting arrangements of a child involved in a separation or divorce. Either this Parenting Order is based on an agreement between the parties and legally recognised (known as consent orders) or after a Court hearing or trial.

What types of clauses should a parenting plan or parenting order include?

No relationship is the same.

Because of this, there is no official set template or parenting clause checklist. So, while there are many different clauses that can be included in parenting orders or parenting plans for the ongoing care arrangements for children, the most common include:

  • Parental responsibility for the children
    – who makes what decisions for the children
  • The living arrangements for the children during the school term
    – including where they stay and how they get to and from school
  • The living arrangements for the children during school holidays
    – this may detail out a roster for certain vacation periods or school breaks
  • The arrangements for special days including birthdays, Easter, Christmas
    – special conditions or agreements may be applied for certain events
  • Changeover locations and times
    – including perhaps a calendar of pick up and drop off times for children
  • Access to information about the children including educational and medical information
    – which can mean sharing the details of each child
  • Telephone and video communications between the children and each parent
    – it’s often important to set boundaries around who can connect with each child at certain times
  • Restrictions on the children relocating outside a certain distance
    – stipulating where a child can live so as to not separate too far from each parent
  • Non-denigration clauses that prevent denigration of parents and extended family members
    – this involves being firm about unfairly criticising or insulting the other partner or their family members in front of the children
  • Interstate and overseas travel arrangements including obtaining and maintaining passports for the children.
    – being clear about what travel is allowed and what is required for this process

Having these set of clauses means that both parents understand what rules and responsibilities each have for the children involved in a separation.

In general, these clauses should be realistic, practical and in the best interests of the children.

Not every Parenting Arrangement will include the same clauses and this list is not exhaustive. It’s recommended to consider what parenting separation clauses you need to include to suit your specific circumstances – if you’re unsure, then you may wish to consider legal advice.

If in doubt, seek legal advice about making agreements for the arrangements for children.

When you’re separated or divorced, there may come a point where you need to work out a property settlement between you both.

Property settlement works by dividing a couple’s combined net assets, but it’s not as simple as it seems.

To ensure that all of your assets are divided and debts allocated fairly with your former partner or spouse, the Family Law Courts considers a range of factors – from identifying which among your assets are obtained during your marriage, all the way to determining each person’s likely needs in the future.

The Court provides 4 important steps to work out your property settlement entitlements:

  1. What is the net asset pool (assets less debts)?
  2. What have been the financial and non-financial contributions?
  3. What are each party’s “future needs”?
  4. Is the division of assets “just and equitable”?

Let’s discuss them more thoroughly.

Step 1 — What is your net asset pool (property pool)?

Property settlement begins with determining your asset pool.

You need to calculate the assets and debts that are to be divided between you and your former partner or spouse. When arranging a property settlement agreement, don’t forget to take note that:

  • All assets are included – whether they are held in joint names, either person’s sole name or the name of a company, trust or other entity that either person has an interest in, or  held by someone else on your behalf or held by you on behalf of another person, such as a child; all of these assets are included the asset pool
  • The Court also has the power to make Orders concerning assets held overseas and requires that you disclose overseas assets, not just assets in Australia
  • Assets purchased either before your relationship commenced (i.e. when you started living together, irrespective of if you later married) or after your separation are still included in the asset pool
  • Property settlement in Australia takes into account the value of assets and debts considered at the time of the agreement, not the separation date
  • Liabilities are included, irrespective of whose name they held in
  • Superannuation is generally included, because superannuation accounts held by either person are usually considered as an asset and can be divided in a property settlement. However, there are some circumstances where superannuation is not an asset but instead considered a financial resource. You should seek legal advice if you are unsure if the superannuation of either yourself or your partner or spouse is considered an asset or a financial resource.

Here are some examples of assets and debts that may be taken into account in your property settlement:

Assets:

  • Houses
  • Units
  • Land
  • Cars
  • Motorbikes
  • Savings/bank accounts or building society accounts
  • Investments
  • Money that is owing to you
  • Shares
  • Companies
  • Trusts
  • Businesses
  • Jewellery
  • Furniture/household contents and appliances
  • Artwork
  • Superannuation
  • Caravans
  • Trailers
  • Timeshare
  • Tools
  • Boats/vessels
  • Life insurance that can be cashed in before death – i.e., has a surrender value

Debts:

  • Mortgage
  • Overdraft
  • Line of credit
  • Personal loan
  • Credit card
  • Business loan
  • Motor vehicle loan
  • Loan/monies owing to other third parties such as a family member or friend
  • Taxation debts
  • Centrelink debts
  • HECS/HELP debts
  • Selling costs on a property or other assets such as commission, brokerage fees, auctioneer’s costs and costs to prepare a property for sale

It’s possible that you may not know your former partner or spouse’s assets and debts.

In cases like this, you can directly ask the other person for information. If the value of an asset is not agreed to by both of you, you may need to jointly instruct a professional valuer to provide a valuation.

We can refer you to one of our trusted partners who can prepare a joint registered valuation should you require.

In this step 1 of t he property settlement process, keep in mind that you and your former partner or spouse have an obligation to provide what is referred to as financial disclosure – meaning all documents and information relevant to your assets and debts, financial resources, incomes and anything otherwise relevant to your financial circumstances should be stated and disclosed upon request.

Step 2 — What have been the financial and non-financial contributions?

It is wrong to assume that financial contributions are the only things that matter in a property settlement agreement.

In fact, the Court considers every financial and non-financial contribution to your household – including contributions made when you first started living together, during the relationship and after separation.

For financial contributions, the ones you and your former partner have each provided are broken down into initial contributions, contributions during the relationship and contributions after separation. These kinds of financial contributions can include:

  • Assets already owned when you started living togther
  • Earnings over the length of the relationship
  • Gifts
  • Inheritances
  • Redundancies
  • Payouts

Post-separation contributions, on the other hand, refer to any payment you or your former partner or spouse made after the relationship had ended. These could include things such as mortgage repayments, rates and water on the former matrimonial home.

For non-financial contributions, these day to day duties ensure the household runs smoothly and are given valuable merit in a property settlement agreement:

  • Cooking
  • Cleaning
  • Caring for children
  • Bookwork
  • Gardening
  • Doing renovations
  • Managing finances

Step 3 — What are each party’s future needs?

Sometimes, one party may have greater needs in the future than the other. As such, the Court also considers this kind of situation when doing adjustments in the percentage split of properties.

How is this possible?

Either you or your former partner might need more support in the future due to the following reasons:

  • Having to handle the primary care of a child or children
  • Earning less income than the other
  • Having health concerns that require ongoing treatment or needs
  • Being at a much older age than the other (therefore, having less working life before retirement age to re-establish themselves)

Step 4 — Is the division of assets “just and equitable”?

The final step of property settlement evaluates if the proposed asset division is just and fair to your circumstances. However, it’s not entirely up to you to decide what’s fair or not – the Court holds that power.

The Court will begin by looking at the types of assets each party holds. Assets such as shares, properties, cars or bank accounts can be sold or converted into cash, whereas superannuation can only be accessed at retirement age. However, if you are close to retirement, your superannuation may be treated as a cash asset.

Your circumstances are unique, which is why the Court considers all important factors like contributions (both financial and non-financial) and future needs when managing the division of assets between you and your former partner.

If in doubt, always seek legal advice about property settlement.

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