If you're seeking advice from a family lawyer, it's likely that you are going through a challenging and stressful life event. If children are involved, its imperative that the matter is handled with extreme care and professionalism. Madison Marcus' family law specialists are able to achieve the best possible result whilst ensuring clients feel supported.
Madison Marcus' family law specialists are able to achieve the best possible result whilst ensuring clients feel supported during a challenging and stressful life event.
Our Family Law Division prioritises the need for amicable and peaceful divorce. Whilst we recognise that more complex matters inevitably require the intervention of a Court, we firmly believe that costly and protracted litigation is rarely the answer for the majority of family law disputes.
We assist our clients with selecting the best method of dispute resolution for their particular circumstances. We then work together with our clients to formulate a personalised dispute resolution pathway, tailored specifically to their needs. We work closely with our clients towards a suitable outcome with sensitivity, empathy, respect and integrity.
The practice of Family Law is constantly evolving. Following the 2019 Review into the Family Law System by the Australian Law Reform Commission, the practice of Family Law has become increasingly specialised.
Our specialist team are able to assist and advise our clients on:
- Separation and Divorce;
- Pre-nuptial and Post-nuptial financial agreements;
- Co-parenting and children’s issues;
- Domestic violence;
- Division of matrimonial property,
- Spousal maintenance and child support.
We are also fully accredited in Interdisciplinary Collaborative Practice.
What is Interdisciplinary Collaborative Practice?
Interdisciplinary Collaborative Practice (ICP) allows the parties involved in a family law dispute to control the dispute resolution process via a series of round-table, confidential and transparent negotiations, adopting a “team approach” to ultimately reach an interest-based outcome.
The parties and their legal representatives are assisted by an interdisciplinary team such as financial planners, accountants, valuers, divorce coaches, family dispute resolution practitioners, family therapists and psychologists who are present during the round-table discussions to help the parties adopt a more holistic approach in resolving their dispute. The focus is for the parties to reach an agreement that is ultimately beneficial for the whole family unit.
If the parties act in good faith, ICP enables a cost-effective resolution within an average of three to six months.
There is no doubt that separation and divorce is one of the most challenging and life-changing experiences that a person is likely to ever encounter. Engaging a specialist lawyer who will ensure that you survive (and thrive) during the transition is of critical importance.
Our specialist team can provide you with advice and expertise about all aspects of life post-separation, including dignified divorce, how to co-parent effectively, minimise conflict and remain friends.
A binding financial agreement (also known as a pre-nuptial or post-nuptial agreement) sets out the way some (or all) of a couple’s assets will be divided in the event that their relationship breaks down. It can also deal with the payment of spousal maintenance.
Although a binding financial agreement can be signed at any point during a relationship, it is preferable that the agreement is put in place before getting married or before the parties commence living together (if entering into a de facto relationship).
Whether you are thinking about getting married, commencing a de facto relationship or remaining in a de facto relationship for the foreseeable future, establishing an agreement while you are happy in your relationship is far more likely to result in a prenuptial or de facto financial agreement that is fair to both of you, which will ultimately save you time and money.
You’ve worked hard for your money and it’s important that, as you enter a serious relationship, you take steps to protect your assets.
It is important to consider a binding financial agreement when:
- you have more money, property or assets than your partner at the beginning of your relationship;
- you may, at a later stage, be entitled to an inheritance or large gift;
- you operate a family business or investment that you need to preserve;
- you want to ensure the terms of any property division are agreed upon to avoid a potential dispute in the event of a separation; or
- you are forming a new relationship and you have children who need to be protected financially.
The law in respect of parenting arrangements post-separation has become increasingly complex in recent years, due to the legislative amendments concerning shared parenting and family violence. These changes have significantly impacted the types of Court-ordered parenting outcomes that now typically occur.
Separation shouldn’t stop both parents from working together to raise their children, however co-parenting effectively post separation is fraught with difficulties. Co-Parenting Plans are a useful tool in confirming details of your new co-parenting relationship, including your rights, responsibilities and the implementation of strategies to resolve any disputes that may arise.
A co-parenting plan should address:
- a schedule of “spending time” arrangements;
- financial support;
- children’s medical needs;
- holidays and special events; and
- decision-making guidelines.
Once the plan is in place and working well, you may need to draw your mind as to what will happen if one of you needs to change the plan or has a change in circumstances in the future.
Whilst co-parenting plans are not legally enforceable, it does indicate to the Court the existence of a bona-fide agreement in the event one party breaches the terms.
Alternatively, legally enforceable arrangements can be documented by way of Consent Orders once an agreement is reached.
If you find yourself in a family violence situation it’s important that you find out what options are available to protect yourself and any children.
Orders can be made in both the Local Court and Federal Court jurisdictions for the protection of yourself, a child, other relevant persons or property. However, it is extremely tricky when there are a set of protection Orders made by a Local Court that conflict with parenting Orders made in a Federal Court. Ultimately, the Local Court is empowered to amend the existing parenting Orders made in the Federal Court if it is necessary to give effect to the family violence protection Orders made in the Local Court.
A child may be considered to have been exposed to family violence if:
- The child overhears threats of death or personal injury;
- The child sees or hears an assault;
- The child sees or hears a family member being comforted or provided assistance after a family violence situation; or
- The child sees or hears a family member clean up the family home after it was intentionally damaged during a violent incident.
When the Court turns it mind to making parenting Orders, it must make the best interests of the child its paramount objective. In determining what is in a child’s best interests, the Court must weigh up two primary considerations:
- The overwhelming benefit of the child having a meaningful relationship with both parents; and
- The need to protect the child from harm by being subjected to or exposed to abuse, family violence or neglect.
Property settlement refers to the division of assets and liabilities following the breakdown of a marriage or relationship.
The implications of the term “what’s mine is yours and what’s yours is ours” is perhaps never fully understood until a long-term relationship has irretrievably broken down. Whilst the term may be romantic and sentimental to a couple during a blissfully peaceful relationship, the irony behind it is not lost on those who are in the midst of a property dispute post-separation.
Property (and debt) accumulated before, during and sometimes even after separation is deemed to be “matrimonial property”. Any and all property of the relationship (despite who has legal title or legal ownership of that property) is considered to be matrimonial property.
Broadly speaking, matrimonial property can include houses, motor vehicles, superannuation and business and commercial structures (including joint ventures and complex trusts, shareholding arrangements, and even copyright or patent rights).
Once the net position of the matrimonial property pool has been determined, the Court will then determine how the pool is to be divided between the parties, taking into consideration the following:
- The financial and non-financial contributions of each party towards the acquisition, maintenance and preservation of the property. Non-financial contributions such as that of a homemaker is considered equal to that of the breadwinner;
- The age of the parties and their state of health, their current and future commitments and responsibilities, their current income and whether they are capable of earning any income in the future; and
- Whether the proposed division is just and equitable in the circumstances of the case.
Whilst viewed as a mathematical exercise, the division of matrimonial property is not an exact science. Court-based outcomes vary depending on how the Court views the facts of the case.
Spousal maintenance is an available remedy to persons in Australia seeking financial support from their former partner/spouse after the breakdown of their marriage or de facto relationship. In certain circumstances, spousal maintenance can be an essential consideration when finalising a property settlement.
The entitlement to spousal maintenance is not an automatic right. There is a two-step threshold test that must be met when considering whether a person is eligible to receive spousal maintenance:
- Whether the person claiming spousal maintenance is unable to adequately support themselves because (i) they have care and control of a child of the marriage who is under the age of 18; and (ii) whether they are unable to seek gainful employment due to age, state of health or mental incapacity; and
- If the above is established, then ascertaining its limit needs to be determined, which is governed by the extent to which the payer is “reasonably able to do so.”
This two-pronged test is sometimes referred to as the “the Need vs the Ability to Pay” test. If the Court is satisfied that the threshold has been met, namely that one party is unable to support themselves and the other has the capacity to assist with their financial needs, the Court then exercises its discretion to determine whether it should make an order and if so, what order it considers proper in the circumstances.
Parents have a duty to support their children financially after separation, regardless of who the children live with. Parents can manage this between themselves via a private arrangement or they can apply for a child support assessment through the Child Support Agency (the Agency).
In an ideal world, a child would receive the same overall percentage of parental income that the child would have received if the parents were still living together. In practice, if a parent provides a larger percentage of care than their share of the total income, they’ll generally receive child support payments from the other parent. If a parent provides a smaller percentage of care than their share of the income, they’ll generally pay child support to the other parent.
Child Support is generally determined by an administrative assessment via the Agency. The assessment is triggered upon the application by one party and the liability to pay arises when that application is made. The assessment is made by way of a complex formula set out in the Child Support (Assessment) Act 1989.
A good first step is to obtain an approximation of the amount of child support you could expect to receive (or pay) from Agency using their online calculator. If you choose to, you can lodge an application for assessment with the Agency to manage the payment of child support that it determines is appropriate based on their formula.
Alternatively, child support can be arranged between the parents by way of a private, binding agreement, referred to as a Binding Child Support Agreement, which essentially “cuts-out” the involvement of the Agency.
Generally speaking, a Binding Child Support Agreement will make provision for the payment of child support (called a periodic payment) and payment of other expenses incurred in raising a child (called a non-periodic payment). Those non-periodic payments usually relate to payment of, or contribution towards, medical expenses, private health insurance, school fees and other school expenses like uniforms, sporting registration fees and other extra-curricular activities and private tuition.
You will need to bear in mind that Binding Child Support Agreements only take into account your circumstances at that time. What happens if, after the Agreement is made, your former partner starts earning substantially more money or reduces his or her hours of work to part-time? What if one of you loses your job? What if he or she re-partners and has another child? Is their new partners income or assets relevant? It is thus critically important that the agreement properly reflects the intentions of the parties and ties off the possible risk that a change in personal circumstances may mean.
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