Welcome to Grahame Jackson & Associates – Family Law
The applicable legislation for all Family Law matters in NSW involving children, spouses and partners is now the Family Law Act (“the Act”) which has take over the regulation of the NSW Property (Relationships) Act (the outdated de facto legislation).
We draft and advise on Pre-Nuptial agreements if you are getting married (s90B) during marriage (s90C) and after Divorce (s90D) and Co-Habitation Agreements (s90UC) and Separation Agreements (s90UD) if you are a de facto couple. These type of agreements are all referred to as Binding Financial Agreements (“BFA”). Call us on 9908 1700 or email an enquiry if you would like us to advise on and draft a BFA for you.
If you are wanting to Divorce your spouse, get advice on how to support the children and what property distribution entitlements you are eligible for, simply call us on 9908 1700 or email an enquiry and we will respond quickly and confidentially during this difficult and emotional time.
If you have separated, whether you are married or not, and want advice on your rights, we can guide you through the procedural requirements and be your strength when negotiating terms, often at times when you are least emotionally equipped to look after your own self interest in relation to:
Divorce
You need to be separated for at least 12 months prior to applying for a Divorce.
You can be separated whilst living together on a shared accommodation basis, rather than as husband and wife. You will be required to make an additional statement regarding your living arrangements and the separation in this case.
If you have been married for less than 2 years, you will be required to attend counselling prior to applying for a Divorce.
You must come within the jurisdiction of the Court for a Divorce to be granted under at least one of the following categories.
- You regard Australia as your home
- You intend to live in Australia indefinitely
- You have lived your whole life in Australia
- You are an Australian citizen
- You ordinarily live in Australia and have for the 12 months prior to the Application for Divorce
If you have children, you must satisfy the Court that proper arrangements have been made for them in respect of their.
- Housing
- Supervision
- Health
- Education
- Contact arrangements with their other parent
- Child support
- Any other future arrangements for the child/ren
You will need to provide the Court with your marriage certificate (and a sworn English translation, if necessary) and pay a filing fee. You may be exempted from the filing fee because of your financial circumstances.
The Application will then need to be served on your spouse at least 28 days before the scheduled date for the Divorce Hearing.
At the Divorce Hearing, the Court will dissolve the marriage and grant a decree nisi thereby dissolving your marriage. One month and a day later, the decree nisi will become “absolute” and you will then be free to re-marry.
If you don’t have children, you need not attend the Divorce Hearing.
The Family Court website has Divorce Kits you can download to guide you through the process [ click here Family Law Court ], or contact us for a quote to do the work for you and ensure things go smoothly at a time when you could use a hand.
Children
When you separate, you need to make suitable arrangements for the children. The Family Law Act makes the children of paramount concern and decisions regarding your futures are based on what is in the best interests of the children, and sometimes these interests conflict with what separated parents consider their best interests.
Arrangements for the children can be formalized in a Parenting Plan, essentially a written agreement between yourselves, or Parenting Orders, which are made by the Court if you can’t come to an agreement.
Before going to Court, you must both attend a compulsory mediation with an accredited family dispute resolution provider for reaching an agreement regarding the children. For further information see Relationships Australia or Family Relationships Online for a free mediation centre near you.
If suitable arrangements can’t be agreed, then a certificate will be issued allowing you to file proceedings in Court. Obviously this course of action is expensive, stressful and time consuming (up to a year for a Hearing) that ends in a Court making a decision about what’s in the best interests of your children, rather than the parents.
Parenting Orders cover :
- Who the children will live with
- The amount of time the children will spend with the other parent
- Parental responsibility while the children are in your care
- Parental decision-making while the children are in your care
The main issues usually revolve around contact periods (weekends and mid week), schooling, holiday contact and where the children will live.
Child Support
The Child Support Agency (“CSA” – a division of the Australian Taxation office) deals with all child support claims under the Child Support (Assessment) Act 1989 (“the Act”).
Normally, children must have a connection to Australia and be under 18 to be eligible for child support, which ends when they turn 18, or are adopted or part of a couple.
The applicant for child support must be separated, an Australian resident, or resident of a reciprocating overseas jurisdiction.
Child Support is based on a formula depending on the incomes of the parents (usually from the last year’s tax return) the amount of time spent with the children and the number of children to support. Click here for the CSA child support estimator to determine your support level.
Child Support agreements can be Binding (each party requires certified independent legal advice), or Limited (based on an administrative assessment).
A Binding Agreement can be for any amount of child support (although Centrelink will base “payments” on the notional assessment) and cannot be varied, only terminated on limited grounds.
A Limited Agreement can be for no less than the assessment amount. If the assessment amount varies by more than 15%, the agreement can be terminated and a new Limited Agreement can be put in place.
If an administrative assessment has been issued by the CSA, either party can object to it within 28 days based on specific grounds, causing an internal review within 60 days. If either party is still unhappy with the decision, an Appeal can be lodged within a further 28 days to the Social Security Appeal Tribunal (“SSAT”). It can take 3 months for the further review to be determined by the SSAT, which will issue a decision and reasons for it.
Typically, a payer may be self-employed and manipulating income to limit tax payable and also their income, or there are greater costs of raising a disabled child, or the child’s agreed schooling costs are greater than average (eg. private schools). In these cases a Departure Order under section 117 of the Act may be sought varying the administrative assessment.
Child support payments can be collected by the CSA from employers, tax refund offsets, pension deductions, prevention of a payer from leaving the country until child support arrears are paid (Departure Prohibition Orders) and litigation in the Courts.
Spousal Maintenance
Spousal Maintenance is a separate category from child support and is for the ongoing financial support for a separated spouse. An application must be made after separation and within 12 months of a Divorce.
Spousal Maintenance is not automatic and normally considered part of an overall property settlement. An Order for maintenance is dependent on one spouse not being able to financially meet their reasonable needs and the other spouse having the capacity to pay.
The amount is determined having regard to:
- What is fair and equitable
- The property and financial resources of the parties
- The income and debt position of the parties
- Age and health issues
- The earning capacity of the parties
- A suitable standard of living
- Whether the children live with you
Once a spousal maintenance application is commenced at Court, you will be required to participate in mediation, as part of the Court’s dispute resolution process, prior to the matter being listed for Hearing.
Property Settlement - Your legal rights under the Family Law Act
Upon separation, either party can apply for an adjustment of property interests of their Net Matrimonial Property if certain conditions apply.
The conditions being that the parties are married, or, if not married.
- They were ordinarily resident in Australia for at least 1/3rd of the length of the relationship
- They have lived together as man and wife for over 2 years
- Substantially contributed to the property interest of the other
- They have a child together
Matrimonial Property is taken to be all of the parties property, including:
Houses, Units, Lands, Bank Accounts, SharesPrivate, Companies, Family Businesses, Tools, Cars, Superannuation funds, Inheritances, Trust property, Furniture and furnishings, Personalty (including jewelry) whether this property is owned solely, or in joint names, or with a third party/s.Net Matrimonial Property is the Matrimonial Property less any debt owed by the parties, or alternate ownership interests (eg. Partnership with third party/s).
Debts can include:
Loans, mortgages, credit cards, leases, hire-purchase arrangements, bills of sale, deeds of charge.
The Net Matrimonial Property is then divided by the Courts after determining the parties contributions to it based on factors set out in section 79 (4) and section 75(2) of the Family Law Act, being:
1. That party’s financial contribution (both direct and indirect) to the acquisition, improvement and maintenance of the Matrimonial Property, on behalf of themselves or any child/ren,
2. That party’s non-financial contribution (both direct and indirect) to the acquisition, improvement and maintenance of the Matrimonial Property, on behalf of themselves or any child/ren,
3. That party’s contribution to the welfare of the family, in their capacity as homemaker and/or parent.
4. The parties respective;
Age, Health, Income earning capacity, Property and financial resources, Duty to care for a child/ren, Commitments to support themselves and children from another relationship, Standard of living in their circumstances, Entitlements to a pension, and/or superannuation entitlements, Spousal maintenance payments (if any), Duration of the relationship, Financial resources of any other person the party is then co-habitating with.
The property is then divided notionally as a whole and distributed to ensure the parties receive their apportioned percentage, which may involve the transfer of property, a cash payment, or a superannuation splitting order, from one spouse to another.