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Does Salary Sacrificing Influence Child Support in Australia?

Thu, 24 Apr 2025 13:47:49 GMT

Child support ensures that children receive adequate financial support after their parents separate. A common area of confusion is how salary sacrificing impacts the calculation of child support payments. Can it be used to reduce your obligations—or does it count toward your overall income?

In this article, we explore how salary sacrifice is treated under Australian child support law and what separated parents should keep in mind. If you’re unsure how your income arrangements affect your responsibilities, the family law team at Maatouks Law Group can provide clear legal guidance tailored to your situation.

What Is Salary Sacrifice?

Salary sacrifice is an arrangement where an employee agrees to receive less cash pay in exchange for benefits. These may include:

Additional superannuation contributions

Use of a car through a novated lease

Rental or mortgage payments

School or childcare fees

Laptops, phones, or other electronic devices

While salary packaging can offer tax savings, it also raises important questions when calculating child support.

Child Support Calculations: The Basics

Child support in Australia is managed by Services Australia – Child Support. The amount payable is based on several factors, including:

Each parent’s income

How much care each parent provides

The number and ages of the children

Standard costs of raising children

The key figure used is the parent’s adjusted taxable income. This includes not only regular taxable income but also:

Reportable fringe benefits

Salary sacrifice superannuation contributions

Net investment losses

Certain tax-free pensions and foreign income

Can Salary Sacrifice Be Used to Lower Child Support?

Not effectively. While salary sacrifice reduces your taxable income, it does not reduce your child support obligations.

Services Australia takes into account the total value of your salary package—not just your take-home pay. If you salary sacrifice part of your income into superannuation or other non-cash benefits, that value is added back into your adjusted income for child support purposes.

The system is designed to reflect your true earning capacity and prevent parents from using financial strategies to unfairly minimise their payments.

Addressing Disputes Around Salary Sacrifice

If one parent believes the other is using salary sacrifice to unfairly lower their child support payments, they can request a change of assessment. Services Australia will investigate whether the salary sacrifice arrangement is reasonable or intended to reduce obligations.

For example, if a significant portion of income is redirected toward super or luxury benefits, the Registrar may:

Include the sacrificed amount in the income assessment

Adjust the support payable

Look deeper into the parent's financial disclosures

If concerns about fairness arise, legal advice can be critical. Our lawyers at Maatouks Law Group regularly support clients through these reviews to ensure child support reflects real financial capacity.

How the Law Views Salary Sacrifice

When assessing salary sacrifice, authorities consider several factors:

Is the arrangement typical for the person’s role or industry?

Was the sacrifice voluntary or employer-mandated?

Are the sacrificed benefits essential or discretionary?

Does the arrangement reduce a parent’s capacity to contribute to their child’s needs?

The Family Law Act 1975 (Cth) and Child Support (Assessment) Act 1989 (Cth) empower Services Australia and the Courts to assess these arrangements and adjust assessments to ensure fairness.

Legal Support for Parents in Child Support Disputes

If you’re unsure how salary sacrifice affects your child support—or suspect your ex-partner is misusing it to reduce their obligations—legal advice can help clarify your position and protect your child’s rights.

At Maatouks Law Group, our family lawyers can assist you to:

Understand how your salary arrangements impact child support

Challenge or respond to changes in assessment

Gather evidence to support your claims

Navigate negotiations or formal disputes

Ensure your child receives appropriate financial care

Final Thoughts: Salary Sacrifice Doesn’t Mean Reduced Responsibility

While salary sacrifice can lower your taxable income, it won’t reduce your duty to support your child. Australian law ensures child support assessments are based on genuine financial capacity—not just what’s reported to the ATO.

Whether you’re the payer or recipient of child support, understanding how salary packaging is handled is vital. For personalised legal support, get in touch with the family law specialists at Maatouks Law Group—we’re here to help you secure a fair and accurate outcome.

Who Covers the Debts Between Separation and Divorce in Australia?

Wed, 23 Apr 2025 13:46:21 GMT

When couples part ways, a common concern is who takes responsibility for debts incurred after separation but before the divorce is finalised. This period can create uncertainty, and without clear legal guidance, you could end up liable for financial decisions made by your ex-partner.

At Maatouks Law Group, we assist clients navigating these financial grey areas with tailored advice and strong legal support. Our family law specialists can help clarify your obligations and work to protect your interests.

Separation vs Divorce: Understanding the Difference

In Australia, separation signals the breakdown of a relationship, while divorce is the formal legal process that ends a marriage. It’s not uncommon for couples to remain separated for a significant time before officially divorcing.

During this interim, either party might take on new debts. These liabilities could later impact how property and finances are divided, depending on the nature and purpose of the debt.

Are Debts After Separation Still Considered Joint?

In some situations, yes—but not always.

The Family Law Act 1975 (Cth) treats both debts and assets as part of the overall property pool for settlement purposes. That means everything from mortgages and credit card debt to personal loans may be considered during property division.

Courts assess post-separation debts on a case-by-case basis, taking into account:

Who took out the debt and for what reason

Whether the debt benefited the family or was for personal use

If both parties were aware of the financial commitment

Whether the debt was necessary or excessive

For example, debts used to pay rent or school fees might still be viewed as shared responsibilities, even if only one partner incurred them.

Debts Incurred for Personal Use

If a debt was taken on solely for personal benefit—such as spending on luxury items or gambling—it’s likely the Court will allocate responsibility for that debt to the individual who incurred it.

However, the other party may need to demonstrate that they were unaware of the debt and that it didn’t serve any joint purpose. Evidence and legal advocacy play a crucial role in these cases.

That’s where our team at Maatouks Law Group comes in. We work closely with clients to compile evidence, prepare strong arguments, and ensure a fair outcome in property settlements.

How Courts Determine Liability for Post-Separation Debts

The Court considers various factors when dividing post-separation liabilities, including:

Contributions (both financial and non-financial) made by each party

Current and future earning capacity

Childcare responsibilities and associated costs

The necessity and intent behind the debt

Whether the debt was taken on recklessly

If it's shown that a person irresponsibly took on debt after separation, they may be solely accountable for it—especially if it didn’t benefit the family unit.

Practical Steps to Protect Your Finances After Separation

If you’re worried about being responsible for your ex’s spending, here are some steps to help safeguard your finances:

Close or split any joint bank accounts or credit facilities

Notify financial institutions that you’re no longer jointly responsible for new debts

Monitor your credit history for unexpected activity

Keep records of any shared expenses or contributions

Get legal advice early to understand your options and rights

Being proactive helps ensure that you're not unfairly burdened with debts during the property settlement process.

Can You Still Be Liable for Debts in Your Name?

Unfortunately, yes. If your name remains attached to any joint loans, mortgages, or credit cards—even after separation—the lender can legally pursue you for repayment. The Court may take this into account during the settlement, but lenders can still enforce repayment obligations.

To avoid this risk, it’s essential to review all joint financial arrangements and, where possible, refinance or remove your name. Formalising financial agreements through Consent Orders or a Binding Financial Agreement can also provide added protection.

Our team at Maatouks Law Group can assist you with these processes to secure your financial future.

Final Thoughts: Post-Separation Debts Need Clear Legal Direction

Debts accumulated after separation and before divorce can significantly impact the financial outcome of a settlement. While not all such debts are considered shared, those that benefit the household or children often are.

If you’re unsure about your financial obligations post-separation, we’re here to help. At Maatouks Law Group, our experienced family lawyers offer clear, compassionate, and strategic advice to help you resolve complex debt and property issues.

Key Questions to Ask at Your First Family Lawyer Consultation

Mon, 09 Sep 2024 00:57:43 GMT

Key Questions to Ask at Your First Family Lawyer Consultation

Meeting a family lawyer for the first time can feel overwhelming, especially when you're dealing with the stress of a separation or divorce. To ensure a productive consultation, it's essential to ask the right questions. This will not only help you better understand the legal process but also help you choose the right lawyer for your needs. Below are some important questions to consider during your initial meeting with a family lawyer.

What Is Your Family Law Experience? It's crucial to understand your lawyer's background and experience in family law cases similar to yours. Ask about their track record and any specializations that may be relevant to your case. Having a lawyer with a solid background in handling cases like yours will boost your confidence in their ability to represent you effectively.
What Approach Do You Take in Family Law Cases? Every lawyer has a different approach to resolving family law matters. Some prioritize mediation and settlement, while others may lean toward litigation. Understanding your lawyer’s style can help you determine if they align with your goals and expectations for resolving your case.
What Are the Potential Outcomes of My Case? While no lawyer can guarantee an outcome, they should provide you with a realistic overview of possible scenarios. This will help set your expectations and prepare you for potential challenges during the legal process.
What Is Your Fee Structure? Make sure to clarify the lawyer's fees upfront to avoid any surprises later. Ask whether they charge by the hour, a flat fee, or a retainer, and inquire about any additional costs such as court fees or extra services. Understanding the costs can help you manage your finances during this challenging time.
What Information Should I Provide? Bringing the right documentation is key to helping your lawyer assess your case. Ask about the records and documents they need, such as financial statements or legal paperwork. Being well-prepared will ensure a smoother process and allow the lawyer to represent you more effectively.
Do You Assist with Mediation? Mediation is often encouraged as a way to resolve family disputes without going to court. Ask how your lawyer can support you through mediation and whether they have experience in helping clients reach fair settlements without the need for lengthy legal battles.
How Will We Communicate Throughout the Case? Clear communication is critical to maintaining a strong lawyer-client relationship. Ask how the lawyer prefers to communicate (phone, email, etc.), how often you can expect updates, and who will be your primary point of contact. This will ensure that you stay informed and involved in your case.
What Are the Next Steps? Before concluding your meeting, make sure you understand what comes next. This includes any immediate actions, deadlines, and the general timeline of your case. Having a clear roadmap can reduce stress and uncertainty during the process.

Additional Tips for Your First Meeting

Be Transparent: Share all relevant details with your lawyer, even if they may seem unfavourable. Full disclosure helps your lawyer build a stronger case.
Take Notes: Write down key points and instructions during the meeting to ensure you don’t forget any important details.
Ask Questions: Don’t hesitate to ask for clarification if anything is unclear. Your lawyer is there to guide you through the legal process.

Conclusion Being well-prepared for your first consultation with a family lawyer can greatly impact the outcome of your case. By asking the right questions, you can gain valuable insights and ensure you’ve chosen the best lawyer for your needs. . Our dedicated team of family lawyers is ready to help you with all your family law concerns.

Call to Action: Contact us today to schedule a consultation and take the first step toward resolving your family law issues with confidence.

Domestic Violence and Its Profound Effect on Custody Decisions

chris.vanlangenberg@sensis.com.au (Chris Van Langenberg) — Thu, 27 Jun 2024 04:39:51 GMT

Domestic violence is a critical issue that significantly influences custody decisions under Australian family law. The guiding principle of the Family Law Act 1975 is the best interests of the child, which directs all decisions concerning child custody and visitation.

Understanding Domestic Violence in Family Law

Domestic violence includes a spectrum of abusive behaviours, such as physical, emotional, psychological, and financial abuse. The Family Law Act defines family violence as any violent, threatening, or controlling behaviour that induces fear in a family member. This comprehensive definition ensures the courts address various forms of abuse.

How Domestic Violence Influences Custody Decisions

1. Best Interests of the Child

The child's best interests are the paramount consideration in custody decisions. The court assesses several factors, prioritising the child's safety and well-being. Protecting children from physical and psychological harm, including exposure to domestic violence, is crucial.

2. Presumption of Shared Parental Responsibility

Generally, Australian family law assumes both parents should share parental responsibility. However, this assumption is void if there are reasonable grounds to believe that a parent (or someone living with a parent) has engaged in family violence or abuse. In such scenarios, the court may grant sole parental responsibility to one parent to safeguard the child.

3. Impact on Contact Arrangements

When deciding child contact arrangements, the court considers any existing domestic violence orders (DVOs) and their circumstances. A DVO doesn't automatically bar a parent from seeing their child, but it heavily influences the court's decisions. Depending on the severity and nature of the violence, the court may order supervised contact or, in extreme cases, no contact.

4. Supervised Contact

If the court deems unsupervised contact with a parent potentially harmful, it may mandate supervised visits. These visits can occur at a contact centre or under the watch of a trusted third party, ensuring the child's safety during interactions.

5. No Contact Orders

In severe instances where any contact with the abusive parent would harm the child's well-being, the court might prohibit contact entirely. This decision prioritises the child's safety and emotional health.

Additional Considerations in Custody Cases Involving Domestic Violence

The Family Law Act specifies considerations for the court in cases of domestic violence:

Nature and Circumstances of the Violence: The court examines the type, frequency, and severity of the violence and its context.
Impact on the Child: The physical and psychological effects of the violence on the child are thoroughly evaluated.
Parental Capacity: Each parent's ability to care for and protect the child is assessed.
Child's Views: Depending on the child's age and maturity, their views may also be considered.

Legal Framework and Protections

1. Domestic Violence Orders (DVOs)

DVOs are legal measures designed to protect victims of domestic violence by restricting the abuser's behaviour. These orders can prevent the abuser from contacting or approaching the victim and their children, playing a crucial role in custody and visitation decisions by highlighting the need for protective measures.

2. Family Court Interventions

The Family Court can implement various actions to ensure children's safety in domestic violence cases. These actions include appointing an Independent Children's Lawyer (ICL) to represent the child's interests, ordering psychological assessments, and obtaining evidence from police and child protection agencies. The court may also require the abusive parent to attend parenting programs or counselling.

3. Mediation and Family Violence

Typically, parents must attend mediation before seeking court orders for parenting arrangements. However, in domestic violence cases, this requirement can be waived to avoid endangering the victim. The court acknowledges that mediation may not be suitable when there is a significant power imbalance due to abuse.

Conclusion

Domestic violence significantly impacts custody decisions in Australia, with the child's best interests as the primary concern. Courts strive to balance the child's need for meaningful relationships with both parents while ensuring their safety from harm. Legal tools like DVOs and the court's protective measures are vital in safeguarding children in these situations.

If you're facing a custody battle involving domestic violence, it's essential to seek legal advice to understand your rights and the protections available for you and your child. At Maatouks Law Group, our experienced Family Lawyers in Sydney can provide the guidance and support you need during this challenging time.

Navigating the Dual Nature of Social Media in Our Connected World

Thu, 27 Jun 2024 04:35:48 GMT

While the internet has brought the world closer, social media has taken it a step further, making it feel like everyone is just a click away. This connectivity allows us to stay in touch with family and friends, regardless of physical distance.

However, this ease of connection comes with a need for caution. As users of social media, we must be mindful of what we share online. This is especially crucial during family law disputes, where indiscriminate posting can have serious consequences.

The Impact of Social Media on Family Law:

The Real-World Effects of Online Words:

It's important to recognise that your online activities can have tangible consequences, affecting perceptions and behaviours. Courts now consider social media posts, comments, videos, and activities as evidence in family law cases. If you're involved in such matters, reducing your social media presence can be beneficial.

From Sharing to Sanctions: Social Media Mistakes to Avoid:

If you habitually post derogatory content about your ex-partner or share personal details freely, it's time to reconsider. These actions can backfire and negatively impact your case, especially if you're seeking a favourable judgement.

Understanding the Legal Risks:

Crossing Boundaries: Social Media and Family Law Violations:

Section 121 of the Family Law Act prohibits sharing information about your family law issues on social media, with potential legal repercussions. Posts indicating violent behaviour, substance abuse, or other negative traits can harm your case in court.

Digital Evidence: How Your Online Activities Can Influence Your Case:

Your digital footprint can be scrutinised as evidence, reflecting on your parenting, financial status, and the veracity of your claims. Be cautious with your social media behaviour to avoid undermining your position in custody battles or financial disputes.

Critical Missteps to Avoid:

Balancing Privacy in Parenting and Property Disputes Online:

It's crucial to understand the boundaries of sharing information online, especially regarding your ex-partner, co-parenting situation, or ongoing case details. Clear communication with your ex-partner about what can be shared is essential.

Digital Hazards: When Social Media Posts Become Legal Liabilities:

Social media should not be a platform for venting frustrations or making threats. Any statements or videos perceived as threatening or self-incriminating can be used against you in court. Choose your online words and actions carefully.

The Evidence Factor:

Screenshots as Legal Proof: The Digital Evidence You Leave Behind:

Screenshots of your online posts can serve as solid evidence in family law cases. They can support testimonies or aid in cross-examinations, influencing the legal outcomes significantly.

The Role of Social Media in Financial Disputes:

During financial settlements, ensure your social media posts do not contradict your claims of financial hardship. Posts indicating a lavish lifestyle can undermine your case.

Strategic Social Media Use:

Guidelines for Collecting Evidence on Social Platforms:

When gathering evidence online, adhere to ethical standards. Avoid deceptive practices like fake accounts or hacking. Ensure any collected evidence is supported by additional proof.

Navigating the Challenges of Digital Evidence:

For digital evidence to be admissible, it must be verified and authenticated. Proper collection, storage, and handling are crucial to maintain its validity. Any breaches in this process can raise doubts about the evidence's authenticity.

How to Protect Yourself:

When to Limit Your Social Media Activity:

During legal proceedings, it's wise to limit your social media activity. If you must post, do so thoughtfully, as your posts can be used against you.

Enhancing Your Social Media Privacy:

Familiarise yourself with social media platforms' privacy settings, use strong passwords, enable two-factor authentication, and be selective about who can view your posts.

Precautions and Best Practices:

Guidelines for Social Media Conduct During Legal Disputes:

Exercise restraint in your social media conduct during legal disputes. Avoid posting impulsively and consider how your posts might be perceived in relation to your case.

The Importance of Legal Advice in Managing Social Media Risks:

A legal advisor can help you understand the implications of your social media activity, guide you on what to avoid, and advise you on strategically using social media to support your case. They can also educate you on your rights and responsibilities in this context.

Avoiding Ex’s Debt After Divorce

Thu, 27 Jun 2024 04:28:14 GMT

Navigating a divorce in Australia is challenging, but with proper support, you can proceed smoothly. Separating your finances from your ex-partner is essential and must be done decisively. Open discussions and clear arrangements are crucial to avoid financial confusion later.

The Challenge of Debt in Divorce

Divorce financial matters involve dividing both assets and debts. Ensuring fairness in both is difficult, especially with debts.

Beyond Asset Division: The Hidden Battle of Debt in Divorce Liabilities like mortgages, credit card loans, personal loans, and student debts must be managed when a couple separates. These debts need arrangements for repayment or continued payments. Dividing assets is hard, but splitting debts is more complex, often leading to unfair distribution.

Why Debt Division is Harder Than Asset Splitting Partners are eager to claim assets but reluctant to share debts. This common attitude complicates fair debt division. The long-term financial impact and the challenge of equitable debt distribution make it tougher than splitting assets, which is more straightforward.

Seeking Fairness in Division

Fairness is essential in dividing both assets and debts. Assessing both parties' debt situations helps determine responsibility and whether debts were for mutual benefit. Future financial capacities must also be considered.

Equity Vs Practicality: Striving for Fairness in Debt Division Fair debt division requires balancing equity and practicality. While equity involves contributions and financial circumstances, practicality focuses on feasible solutions. Flexibility, cooperation, and open communication are key. A thorough financial assessment, including income, assets, and liabilities, is necessary.

The Legal Framework for Fair Debt Allocation: Insight from Family Law The Family Law Act 1975 governs debt allocation for separating couples. Courts consider factors like when the debt was incurred, each party's contributions, and the impact on children in asset and debt division.

Practical Steps for Fair Division

Regardless of emotions, financial matters must be approached objectively for an equitable debt-sharing arrangement.

A Slow and Steady Approach to Debt Division Debt division requires time and careful steps, including gathering financial information, assessing joint debts, prioritising high-interest debts, and exploring options for repayment. Honesty and cooperation are vital.

Unveiling Hidden Debts: The Importance of Full Disclosure in Divorce Proceedings Both parties must legally disclose debts and assets during separation. Hiding debts can hinder fair division and lead to legal consequences and trust issues.

The Role of Contributions and Circumstances in Debt Division Financial contributions include income, assets, and debt payments, while non-financial support also matters. Financial circumstances, such as income, assets, liabilities, and earning potential, are crucial in debt division.

Handling Shared Debts

Planning and open communication are essential in handling shared debts.

Tackling Shared Debts: Mortgages, Loans, and Unreasonable Debts After disclosure and assessment, careful planning of shared debts is needed. Financial circumstances are considered, and repayment options are explored to create workable agreements.

Who Pays What? Understanding the Allocation of Shared Debts Debt allocation depends on several factors, including whether debts were for reasonable household expenses or unreasonable spending. Reasonable debts may be shared, while unreasonable debts typically fall on the borrower.

Preventive Measures

During a divorce, it's important to stay financially aware to avoid taking on an ex’s debt or losing a claim to an asset.

Staying Ahead: Preventive Measures to Avoid Taking on an Ex’s Debt Prenuptial agreements help, but staying aware of earnings, expenditures, borrowings, and outstanding debts during the relationship is crucial. This clarity aids in determining who takes on what debt during separation.

Financial Literacy: A Shield Against Post-Divorce Debt Burdens Financial literacy involves understanding financial obligations, budgeting, managing debts, and saving. This knowledge helps avoid post-divorce debt burdens and ensures better financial circumstances.

The Power of Financial Awareness in Preventing Debt Disputes Financially aware partners encourage open communication about assets and debts and take proactive measures like prenups. This awareness helps prevent major debt disputes.

Taking Control of Your Financial Future

Focus on long-term financial consequences and maintain control to ensure a secure future.

Reclaiming Financial Independence After a Divorce Assess your financial situation, including income, expenditures, assets, and liabilities, to prevent unfair debt division. Highlight high-interest and long-term debts, and consider your repayment capacity. Seek professional financial guidance for debt-sharing agreements.

Legal Recourse for Unfair Debt Division: Know Your Rights If debt allocation feels unfair, seek legal help. A family lawyer can guide you on your rights and assist in reopening your case if necessary, leading to reassessment of debts and assets.

Developing a Financial Game Plan Post-Divorce After debt division, create a financial plan for a stable future. Seek professional advice if needed, and design plans that accommodate short- and long-term goals and savings. This helps maintain financial control and avoid future entanglements.

What Are AVO, ADVO, and APVO?

Mon, 01 Apr 2024 00:55:40 GMT

Apprehended Violence Order or AVO is an order issued by the Local Court in order to assure the safety of someone who has been a victim of a violent crime and seeks protection. They fall under the Crimes (Domestic and Personal Violence) Act 2007. AVOs branch out into more specific realms of personal and domestic violence and victims in such cases can get an Apprehended Personal Violence Order (APVO) or an Apprehended Domestic Violence Order (ADVO) as the case may be.

At Maatouks Law Group, we help you identify the situation you are in and assist you with all kinds of AVO processes. Whether you want to consent to the AVO (with or without admitting to the allegations mentioned on the AVO), contest the AVO, or modify the AVO, we have the experts here who can guide you on what you need to do and also handhold you through the entire process.

What is an AVO (Apprehended Violence Order)?

An Apprehended Violence Order is an order issued to protect the victims of violent crimes. When a person has been assaulted, intimidated, harassed, or threatened, he or she can get an AVO issued against the perpetrator. AVOs are sound and legitimate orders that prevent the perpetrators from continuing the heinous acts towards their targeted victims. Although an AVO is not a criminal charge, you will have to abide by certain restrictions that will be applicable till the AVO is valid. In most cases, the AVOs have a validity period of 12 months.

At Maatouks Law Group, you get the best consultation on violence orders of all types. We can help you apply for an AVO against your perpetrator as well as represent you in contesting any AVO issued against you. We understand your situation and work out feasible solutions to help your case. We help gather evidence if you want to get an AVO against your intimidator/stalker. Conversely, we also help prove your innocence or collect evidence that can justify your act if you want to contest or modify the AVO issued against you. Speak to our legal team for effective guidance.

What is an ADVO (Apprehended Domestic Violence Order)?

An ADVO stands for Apprehended Domestic Violence Order and is a form of AVO issued for violence in the domestic setup. Domestic setups include married couples, de facto couples, couples living in the same premises (which also includes a residential care facility), two people having an intimate relationship, and two people related as extended family or kin (for the Aborigines and Torres Strait Islander people).

In case of domestic violence cases, Domestic Violence Liaison Officers (DVLO) are involved. DVLOs are trained to assist with all aspects of domestic violence from child protection and victim support to all court processes that need to be taken to assure the safety of the victim and his family. They also monitor victims and perpetrators to make sure such heinous acts are not repeated.

When it comes to ADVOs, the expert team at Maatouks can help you apply for one or contest for one issued against you. We can liaise with the DVLOs and also represent you at the court if need be. If you are the victim, we can help you gather evidence and get the ADVO against your family member who has been inculcating fear in you.

What is an APVO (Apprehended Personal Violence Order)?

APVO stands for Apprehended Personal Violence Order – an order issued for the protection of victims who have endured personal threats, harassment, injuries, or intimidation from people outside of their family like co-workers, neighbours, or even strangers. If a person has been stalking you or causing you to live in fear of any sort, you can apply for an APVO against the person. Likewise, if an APVO is issued against you, you will not be allowed to go near the person in need of protection or even attempt to contact or speak to him or her. Any breach of this will lead to incarceration and some solid jail time.

At Maatouks, we specialise in all kinds of violence orders including APVO. Be it filing for an APVO or contesting one, our counsellors can advise you on the right course of action and assist you with the entire process start-to-end. We can also help build your case by gathering evidence and preparing you for the court proceedings. Our experienced lawyers can identify the possibilities of getting you a watertight AVO or strongly defending yourself against one. We provide thorough counselling and guidance in all matters related to APVOs.

How to Get an AVO in NSW?

Getting an AVO is a step-by-step process. It needs to be thoroughly proved that the person applying for the AVO has a solid reason to fear the defendant. Any kind of harassment, threats, or violence should be reported to the police without delay and guidance should be sought on how to deal with such situations. Evidence should be collected to be able to prove that the defendant can potentially hurt you which provides a solid ground for you to get an AVO.

Whether you are being subjected to mental or physical harassment or intimidation, it should be brought to the notice of the concerned authorities and a solution should be sought. This could be from a member of your family, someone who is in an intimate relationship with you, or someone from outside the family like a neighbour, co-worker, customer, etc. The concerned authorities include the police, and the ideal solution would be to get an AVO through the Local Courts in NSW.

How Does an AVO Work?

An AVO is a legal order that will strictly prevent the defendant from coming close to you or even trying to contact you. You can apply for an AVO against any person who has been violent towards you, instilled fear in you with intimidation, domestic abuse, sexual assault, physical violence, etc.

There are certain conditions included in an AVO. While the defendant is not allowed to continue their heinous acts, they can also not contact or cause any damage to the victim’s property in any way. When an AVO is issued to protect a victim, their families are also covered under this protection and the defendant can also not come close to the victim’s family.

Additionally, the defendant or the perpetrator cannot reside in the same house as the victim or possess any firearms. The defendant can speak to the victim only in the presence of a lawyer and should not be within a certain radius of proximity to the victim. These instructions must be adhered to, failing which, the defendants could face prison time and a non-criminal AVO takes the form of a criminal charge and goes into your records.

How to Apply for an AVO or ADVO?

Applying for an AVO or an ADVO is categorically a multi-step process. So if you are receiving threats, being harassed, being physically assaulted, or facing any such situation that makes you live in fear because of a certain person, the first thing you need to do is get an Apprehended Violence Order or Apprehended Domestic Violence Order. Let’s look at the stepwise process.

Contact the Police

When you are being repeatedly intimated by someone, be it from the family or outside, you need to contact the police and report the incidents. Also, you need to submit ample proof to substantiate the claims of threats, intimidation, or violence.

Provide a Statement

Provide a detailed statement of the incidents which instilled fear of the perpetrator and all details in relation to those incidents. The more relevant your information is, the more strong your complaint will be. The police can also help you apply for an AVO on your behalf.

Sign the Statement

Once the statement is completely furnished with all necessary and relevant details, you may check the same and sign it to mark your approval. You will get a copy of this statement and the police makes headway into the investigation of the matter.

Serving the Application

Once the application is done, the police serve the application to the defendant personally. After serving the application, the police fill out a Statement of Service that is to be submitted in the Court as proof of having informed the defendant of the application.

Going to Court

Once the application has been submitted in Court, the defendant will be intimated of the date and time when he or she needs to be in Court. The further process of submitting the evidence and proving that there are enough grounds for the victim to fear the defendant happens in Court. During the Court proceedings, you may argue your own case or get a lawyer to represent you. Victims of domestic violence can get some guidance from the Domestic Violence Practitioner Scheme about this.

Is an AVO a Criminal Record?

An AVO is not a criminal proceeding against you and does not get into your records. However, if you happen to breach the stipulations in the AVO, you will be charged and punished. Punishment includes a two-year imprisonment or a 50-unit penalty.

Conclusion:

For more details, call us!

What Happens to a Mortgage After Divorce in Australia?

Mon, 01 Apr 2024 00:55:40 GMT

When you separate from your partner or get a divorce, the emotional turmoil is not the only one you have to go through. There will be a great deal of family, finance and asset-related issues that will come up for discussion as you move forward. If you have a house together that you took out a mortgage for and are still in the process of clearing it, then you will have to divide the responsibilities for that between yourselves too.

Even though it can be quite a harrowing experience, it is important to get your finances straight so as not to run into problems later. There are many options available to deal with a mortgage after divorce in Australia. Which option you choose depends on the nature of your relationship with your ex after the split, the responsibilities and assets each of you are gaining, the needs of the dependents each of you support, future financial prospects, contributions made to the household and any other conditions that may, in any way, affect the mortgage.

Who Has to Pay The Mortgage After Divorce

The responsibility of paying the mortgage goes to whoever owns the house and took out the mortgage. If only one of you did it, then that person has to keep making the payments as usual. If both of your names are on the mortgage contract, then that means you co-own the house and are co-borrowers for it. Hence, you both have to keep making payments towards it as you were before your marriage or relationship broke down. Even if you have moved out and are no longer living in the house you bought together, the conditions won’t change when it comes to the mortgage payments.

What are the Options After Divorce

There are of course several options that you can pursue after a divorce regarding your mortgage payment. The truth is, several factors come into play when a divorce is finalised. Assets and liabilities are divided according to the incomes, existing property and responsibilities of each partner. It is but natural that in most cases, some sort of adjustment needs to be made in the mortgage payments too. Given below are all the options that you can choose during the settlement process.

Pay the Mortgage Together

This is the ideal situation where both partners keep paying for the mortgage as they used to before. However, this is hardly ever the case due to two reasons. The first is that you can only come to such an arrangement if the split was an amicable one and both parties have carefully discussed their joint and individual finances in a logical manner without emotions coming in the way. This is not very common. The second is that one or both parties will no longer be staying in the home, which means they will have to bear the cost of financing their new residence as well as making the mortgage payments. Hence, in most cases, people go for one of the options explained below.

Buy Them Out

You have the option of buying the house and taking the entire share of the mortgage payments on yourself. This is possible only if your ex-spouse is ready to give up their share and if you have the financial capacity to shoulder the added expenses. The process will involve transferring the ownership to you and refinancing the loan. However, you must be able to qualify for the refinancing. The lender must be convinced that you would still be able to make the payments regularly without defaulting. You must carefully consider factors like your income, expenses and financial responsibilities before deciding to go for it.

Sell Your Share

This is the reverse of the above situation where your ex-partner buys you out instead. If you are willing to give up your ownership of the house and your ex-spouse qualifies for the refinanced loan with the ability to bear the increased monthly payments, then this can be a great way to rearrange your finances after a divorce. You will no longer have to provide your share of the mortgage payments or pay taxes for the property. Again, like before, this will only work if both you and your ex-partner are willing and your ex is financially capable enough for the extra expenses.

Alternative Arrangements

There is a middle ground among all these options too, where you make your decision based on certain factors and conditions of both your lives. Say, if you had children and one of you is getting greater custody of them or one of you has dependents living with you who are not in a condition to move, that person may decide to keep living in the house and making greater contributions towards the mortgage payments while the person no longer living there can make significantly lesser payments.

Sell the House and Share the Profit

Perhaps the most common avenue chosen by most couples is to sell the co-owned house and divide the profits as part of the property settlement. In most cases, neither of the parties is capable of making sole payments on the mortgage and would not be willing to pay for a house they are not living in. Hence they decide to sell the house and, if the equity on the house is large enough, it could turn into significant liquid assets that can be split accordingly between the two and used towards the financial requirements of resettling after the divorce.

It is important to remember that in all cases where the mortgage payment is adjusted or modified in any way, your credit score will also be affected. Hence, if you are not fully confident about understanding the exact impact any of these will have on your financial records and credit score, it is best to get a financial advisor along with legal help for the divorce.

Can You Transfer Your Mortgage to Your Ex-Spouse

Yes, it is possible to transfer your share of the mortgage to your ex-partner. However, several factors have to be considered for this to work. First, your ex-partner has to be willing to take up the responsibility of maintaining the entire house as well as paying the entire mortgage amount by themselves. But that is not where it ends. Transferring the mortgage to your ex’s name means the loan must be refinanced and your ex has to be financially stable enough to make the required payments regularly according to the lender’s assessment. If either of these conditions is not met, you will not be able to choose this option.

Can You Buy Your Partner’s Share of the Mortgage

On the contrary, if you want to retain ownership of the house you owned jointly, you could have it transferred to your name in the property title deed along with a refinancing of the mortgage to have the entirety of the payments made by you. In the same manner as above, your financial condition will be examined thoroughly by the lender before you are considered eligible for refinancing. However, even if you pass this step, you should make a thorough budget plan to ensure that you will not run short on essentials while making these payments.

How to Remove An Ex-Partner from a Mortgage

The first step to remove your ex from the mortgage of the house is to get their consent for the process. Unless they are willing to give up their share of the house, you will not be able to move forward with the procedure. Once you have their willing agreement, you need to discuss the proposition with your lender. Your lender will then examine your financial statements to ensure that you would be able to make the regular payments for the mortgage by yourself and that there is little to no chance of defaulting.

When the loan is refinanced, the joint mortgage payment agreement will be removed from your credit score and the new, sole payment agreement would be added. You will also have to get the name of your ex-spouse removed from the property deed once everything has been settled. If you feel you need help, you should hire a Family lawyer and financial advisor to ensure that you are not making any mistakes that will cost you dearly later on.

Removing Your Name From the Mortgage After Divorce

In many cases, you may be the one moving out from the house you and your ex-partner co-owned and you want to be removed from the ownership and mortgage of the house. The process is similar in this case too. You will first have to talk to your ex and reach an agreement where they are willing to take upon themselves the entirety of the mortgage payment. Before the loan is refinanced, your ex will be assessed for his financial capacity to meet the payment requirements solely by themselves.

If they pass all the criteria of the lender, the refinancing process can be started. Your credit score will no longer reflect the mortgage and you will not have to make any further payments towards the mortgage. You will also not have to pay any taxes for the property anymore and your name will have to be removed from the property title deed.

Pros of Refinancing

Refinancing the mortgage on your house can have a few advantages to both the person taking on the extra payment and the one being exempted from it:

If The Loan Is Refinanced To You, It Will Mean That Once All The Repayments Are Done, You Will Be The Sole Owner Of The House. That Will Be A Huge Asset For You.
If You Are Removing Yourself From The Mortgage, You Will Be Saving A Lot Of Money That Used To Be Spent Making The Payments And Paying Taxes For The House.
If The Current Rates For The Interest Are Lower In The Market, Refinancing Will Actually Reduce The Interest Amount You Need To Pay. That Means You Will Be Saving Money On The Mortgage.
If You Have The Financial Capacity, You Can Refinance The Loan For A Shorter Period, Which Will Allow You To Take Complete Ownership Of The House Much Sooner.

Cons of Refinancing

You may face certain issues and worries when refinancing your mortgage after divorce in Australia. The main things you have to look out for are:

If The Entire Mortgage Is Transferred To You, You Not Only Have To Make Sure That You Are Eligible To Take On The Entire Loan Yourself But Also That You Will Not Be In Financial Trouble After Making Said Payments, Especially If You Have Dependents, Medical Needs Or Any Other Such Requirements.
When You Refinance The Loan To Transfer It To Your Ex-Spouse, You Will Be Losing Ownership Of The House That You Contributed So Much Towards. You Will Also Most Probably Have To Move Out And Start Life Anew. If You Are In A Position In Life To Handle These Changes, You Can Go Ahead With The Decision.
The Refinancing Process Can Be Quite Lengthy Due To The Submission Process And Document Verifications, Which Will Only Add To The Time Taken To Complete The Divorce Proceedings.
There Might Be Extra Fees And Costs That Will Be Involved When Refinancing The Mortgage. It Is Important To Remember That Divorce Itself Is A Costly Process, Along With The Added Expenses Of Restarting Your Life From Scratch. Refinancing The Mortgage Will Add To These Costs And You Should Be Ready To Bear Them.

Conclusion

A divorce is a stressful time in a person’s life. Often, the financial hurdles make it even more difficult because you need to stay calm and logical and not let your emotions, which are already running high, come in the way of your financial decisions. Dealing with an ongoing mortgage during a divorce might seem too much work, but it is extremely necessary to sort things out in time. If it feels too overwhelming or complicated to do by yourself, you will always be able to find a Maatouks lawyer by your side whenever you reach out to us.

All you need to do is get in touch with us and we will take care of everything. Call or message us now for any legal issues you need help with, including family law and divorce.

Mother’s Rights vs Father’s Rights After Divorce In Australia

Mon, 01 Apr 2024 00:55:40 GMT

Australia is a country with strong women’s rights and it is common for mothers to win child custody disputes. Simultaneously, there is a growing movement for father’s rights and courts nowadays prefer to grant joint custody and determine the main carer keeping the best interest of the child in mind. In the past, mothers were considered the primary carers for children and fathers got to see their children occasionally, or over the weekends.

Rights Of Mothers in Divorce

The rights of a mother after separation include child support, spousal maintenance and property settlement. A mother is entitled to receive financial support from the former spouse to help in the child’s upbringing. Spousal maintenance is provided when there is a real need for money and the spouse can pay. Payment made for the benefit of a former spouse is referred to as spousal maintenance whereas any financial help given for the child’s expenses solely like school fees, medical bills and other miscellaneous expenses is child support. If a mother who has primary custody wishes to relocate with her children after a divorce, she can do so after the spouse agrees in cases where the father shares parental responsibility. In case the father denies it, she has to make an application for relocation orders to the family court.

The court will consider the child’s best interest and welfare and decide accordingly. In cases where the father withholds the child from seeing the mother, or moves the child to a different country without the mother’s knowledge, she can apply for recovery orders. Father’s rights include access to children and their whereabouts even when they do not have the primary custody of the child unless there is any evidence of violence or abuse. If parenting orders are breached, the father can send an application to the court, informing about the breach. It is always advisable for both parents to document any breaches, instances of violence or abuse and record witness statements. Any allegations of domestic violence or abuse should be addressed immediately.

Child Custody Rights For Mothers

There are no specific child custody rights for mothers technically as per the Australian Family Law. The same goes for fathers as well. The family court focuses on the rights of the children and makes the child’s best interest a priority over the rights of the parents as such. Neither parent is given any preference and shared custody rights are encouraged so that the child gets to spend quality time with both parents. This is done keeping in mind that staying connected with both the mother and the father helps the child’s emotional and overall growth in a better way. Being a father or mother does not make any difference technically when the proceedings for parenting orders begin and both parents are expected to work together amicably in the best interest of the child. There can be exceptions, however, if the child is vulnerable to abuse, violence or harm of any nature and type.

The mothers must establish that they understand the best interests of the child and can look after their welfare by being able to provide financial and emotional security to the child. In instances where an abusive parent exposes the child to violence or harm, that parent can be denied access from the child or given restricted and supervised access. As part of a mother’s right to save herself and the child from family violence, she can request interim orders in case urgent protection is sought from an abusive spouse or family member.

Law For Custody Of Child After Separation

Parental responsibility should not be confused with child custody. Also, the parent with whom the child lives may not be entitled to make all the important and long-term decisions. Decisions like which school is the best for the child, following specific customs and culture and choosing the medical treatment plan fall under parental responsibility. Both parents are expected to make the decisions together amicably and by giving respect to the other’s views, whenever equal shared parental responsibility is justified.

A mother has the right to make significant decisions to help with the best upbringing of the child. In instances where the father comes up with major decisions that the mother does not agree with, she can stop the same from going ahead. Separating children from either of the parents is not advisable unless it is going to benefit the child. Children have all the right to stay with both parents unless it may jeopardise or harm the child. Both parents are expected to share equal responsibilities for bringing up the child.

What Affects Mother’s Rights In Parenting Orders?

Many factors are considered while making parenting orders. It is believed that a child has the right to have an equal relationship with both parents unless there is physical, emotional, psychological or sexual harm to the child from either parent in which case contact will be limited or cut off as per the scenario to protect the child from abuse. Apart from the child’s best interest, the views of the parents and the child are also taken into consideration. How the child feels about the proposed custody arrangements and what the parents think about shared parental responsibility also matter. The lifestyle of the child and the parents and their ability to provide financially for the child’s education and overall needs is also looked into while proceeding with parenting orders.

Current family violence or any evidence of it previously is also taken into account and the court can exercise its discretion to determine the outcome as per the situation of the family. It is a mother’s right to protect her children and herself from the violence of any form and they can apply for an apprehended domestic violence order (ADVO). She needs to show that there is a fear of violence, stalking or intimidation based on reasonable grounds. The mother can also request interim orders if there is a need to get protection urgently. This can prevent future acts of violence as well. It helps a great deal if the mother can provide substantial evidence that she can take care of the children’s needs financially as well as emotionally. A mother needs to keep the best interest of the child as a priority during the custody proceedings.

Can A Mother Deny A Father’s Access In Australia

A mother cannot deny a father access to their children in Australia as equal and shared parental responsibility is stressed in the best interest of the child. Fathers have the right to see their children and taking a child away from the father can be considered unethical and illegal. However, a mother can restrict or deny a father access if she can show that the father is abusive or a potential risk to the child. In cases where a history of violence (physical/ emotional/ sexual/ psychological) is present, drug or alcohol abuse is involved or when the father is afflicted with extreme mental health issues, a mother can request the court to deny access after providing all the evidence that supports the claim.

Only an order from a local, federal or family court in Australia would be able to stop a father from accessing their child. Denying a child from either of the parents is usually seen as the last resort after exhausting all other available options like supervised or limited access. A child is denied access by the court only in cases where that is the best and safest option for the child.

Does A Father Have The Right To Know Where His Child Lives?

A father has the right to know where his child lives, even if the father is not the custodial parent. He also has the right to know what is happening in his child’s life including school and medical details. He can even request to see or access the child’s documents like health records, school report cards and details of any extra-curricular activities. Australian law emphasises shared parental responsibilities and equal rights for both parents and thus a father, even though a non-custodial parent, has all the rights to know the whereabouts of his child. There could be exceptions however where the father is abusive or there is evidence of family violence and not sharing the details of the child is the best solution for the safety and well-being of the child.

Fathers’ Legal Rights To Unborn Child In Australia

A father has very limited legal rights towards an unborn child in Australia. A father of an unborn child cannot restrict the mother’s movements or stop her from doing what she wants to of her free will and wish. A father can, however, be given legal rights to support the mother and the child in instances where there is a potential risk to the mother from external violence or abuse. A father can be given the right to provide financial support to the mother, bear the cost of childbirth and raise the child. He can also be given the right to spend time with the mother and provide emotional support whenever needed. Nevertheless, once the child is born, the child’s rights will take over the rights of the parents and any decision will be taken based on the child’s best interests and safe upbringing.

Shared Parenting

It is proven that children who get to spend time with both parents do well emotionally and psychologically and this reflects in their behaviour and attitude even after they become adults. Hence, courts these days advocate that a child should get equal time with both parents and encourage shared parenting wherever possible. There could be exceptions made where parental access could be restricted, supervised or denied as the last resort when there is evidence of violence or abuse in any form, criminal proceedings, mental illness and alcohol or drug abuse involved.

The court prioritises protecting children from psychological, emotional, physical and sexual violence, abuse or harm. It is in the best interest of the children that they receive sufficient time and support from both parents for their overall growth and well-being. A child should not be denied contact with one parent unless it is absolutely necessary and in the best interest of the child. Both parents should share the responsibility for the child’s upbringing including financial contribution, spending quality time and attending to the emotional needs of the child. Both parents should keep their differences aside in the best interest of the child.

Legal Help For Divorced Fathers And Mothers

The decision to go for separation or divorce can be emotionally and mentally challenging and more so when children are involved. Child custody battles and other legal proceedings can drain you out without proper guidance. Maatouks Law Group is a reputed law firm with offices across NSW that can help you during this challenging phase of your life. We understand the sensitivity involved in dealing with separation cases and treat all our clients with courtesy and respect. Our team is dedicated to achieving superior and the best possible results for our clients.

We have the experience (25-plus years), confidence and resources to provide unparalleled service no matter what your legal requirements might be. We provide our clients with a full range of legal options so that they are aware of the proceedings. We work closely with some of the top barristers in NSW and can assist you with an array of legal issues including family law, criminal law, property law and traffic law. Our services also include debt recoveries, wills and estates, litigation matters, corporate law and conveyancing. You can call us to know more about our legal services and our friendly team can help with all your queries. We also provide free phone consultations to assist you.

Call us now and we can help you!

Difference Between Binding Financial Agreements and Consent Orders

Mon, 01 Apr 2024 00:55:40 GMT

A divorce or a separation brings with it not only an emotional turmoil of mammoth proportions but also the legal complexities of property and financial settlements. And if you are feeling emotionally tormented or drained, your judgements can be clouded or driven by the forces of your feelings. Therefore, hiring a legal expert becomes imperative so that you make no mistakes and avoid causing irreparable damage to yourself financially.

To avoid protraction of the legal proceedings in settling properties and finances, it is very important to formalise any and all kinds of financial agreements reached under by way of either a Binding Financial Agreement or a Consent Order. Without a legal binding agreement, either of the parties may come back in the future and reagitate issues and claims against the former partner and their new assets. So, by all means a legal binding instrument by way of a Binding Financial Agreements or Consent Orders is in the best interests of both parties and gives peace of mind to full closure of your matter.

Family Court Consent Orders

When both parties come to an agreement about the division of their assets and finances, which may also include the care and welfare of their children, a Consent Order is issued by the Family Court. Though your presence in the court is not necessary to obtain a Consent Order, presenting your consent to the agreement is essential. To do this, you will need the Application for Consent Orders. The Application of Consent Order is a fundamental piece of document in which you need to disclose all the details of your relationship along with the list of all the assets and debts in either party’s name and their respective values. Also added to the application would be the contributions made by each party towards earning the assets and their respective future needs after the divorce or separation.

When the application is filed, the Consent Order is made which entails details about the settlement. Things like the deadline for making a certain payment and the amount are all specified in a Consent Order which needs to be signed by both involved parties. Thereafter, the documents are sent for review by the Registrar and this process involves a filing fee. The process of review can take somewhere between one to eight weeks. Once the registrar approves, the Consent Orders are stamped and sealed and sent to both parties, thereby making the Consent Order a legally binding agreement. It is noted that the Registrar could determine the Orders as not being “Just and Equitable” and could reject making them.

Advantages of Consent Orders

Being a legally binding document, a Consent Order is advantageous in several ways. Let us see why it is advisable to get one in case of a divorce or separation.

Legally Binding

By nature, a Consent Order is a court document that in itself is very powerful and binding. The involved parties are bound to comply with the terms and conditions mentioned in it. It is also legally accepted proof that a certain agreement has been arrived at about the settlement of property and finances.

Difficult to Revoke

It’s a court order and it’s binding – everything here says that a Consent Order is not so easy to revoke or overturn. Once the parties have come to an agreement about the settlement of the assets and the same is registered with the Family Court, revocation, though not impossible, is certainly a long process to go through and needs to be substantiated by some solid reasoning.

Legal Advice by Choice

Each party has the right to seek legal advice in filing for a Consent Order. While signing the documents, each party is required to check the box denoting that they are aware of their right to legal counsel. Whether to seek independent legal advice or not is entirely up to the parties involved. Filing a Consent Order can be done by the parties themselves without any intervention by legal experts.

Disadvantages of Consent Orders

Like every legal process, obtaining Consent Orders also has two sides to it. While it is certainly touted as beneficial, there are flaws on the flipside. Let us take a look.

Registrar’s Judgement

While reviewing a Consent Order, the Registrar will give the final nod only if he deems fit. If the Registrar confirms that all the terms and conditions mentioned in the Consent Order fall within the purview of the Family Law Act, the Consent Order will be approved. In case of a minor deviation from the Family Law Act, there could be further iterations and notices will be sent to both parties asking for additional information.

Tedious Process

Filing for a Consent Order is a tedious process. There are just too many details to be included in the Application Form and a lot of information to be provided. As an individual, it may be way too cumbersome for you but when a legal expert is involved, things might be a lot easier.

Fee and Time Involved

Filing the Consent Order involves a fee and as of now, this amounts to $180. This could be quite an amount for some from the lower income bracket and pose a disadvantage. Furthermore, there is also a time frame for this process to be completed which can span anywhere between one to eight weeks. How fast the process is carried out totally depends on the workload with the Family Court.

Binding Financial Agreement

A Binding Financial Agreement (BFA) is a contract of sorts between two people who are in a marriage or a de-facto relationship. This agreement defines how the financial assets and liabilities of a couple are going to be divided in case of separation or divorce. When a couple enters a Binding Financial Agreement, it means both the involved parties have come to an agreement about who gets what in case of a separation or a divorce.

A Binding Financial Agreement can be between two people in a relationship be it a marriage or a de facto. The relationship may be between people of the same sex or different. With a Binding Financial Agreement, you can avoid lengthy court proceedings and several hearings about equitable and justified division of assets. A couple can enter into a Binding Financial Agreement before they get married, while they are married, before filing for divorce or after filing for divorce. In the case of a de-facto relationship, the couple may finalise their BFA before they enter into the relationship, while they are in the relationship or during separation.

Irrespective of when the couple signs a Binding Financial Agreement, they have to make sure of one thing and that is to be thoroughly informed of the effect of the agreement and its advantage and disadvantage. Hiring individual legal experts is advisable to get precise information about how your rights might be affected by the said Binding Financial or Pre-Nuptial Agreement. Thereafter, the agreement needs to be signed by both parties and the signed copies need to be retained by them both along with the signed statements from the lawyers. If all these parameters are covered, a Binding Financial Agreement is a legally binding document for both parties involved.

Advantages of a Binding Financial Agreement

Having a pre-nuptial or a Binding Financial Agreement can be beneficial in many ways.

Free From Judicial Intervention

A Binding Financial Agreement is an agreement between 2 people who are or have been in a relationship. There is no intervention from the Family or Federal Courts to enforce the terms and conditions of the BFA. As long as both the involved parties have been thoroughly advised of the terms and conditions of the BFA by their legal counsel and they are aware of its probable implications on their lives and finances, there is no other pre-requisite to make the agreement binding.

Simple and Swift Process

With any and all kinds of judicial interference excluded, preparing a Binding Financial Agreement becomes a much simple process. Both parties have to be given a thorough understanding of what the BFA is all about, its terms and conditions and all the possible effects it could have on each one’s life. Once the parties understand the BFA inside out and sign the agreement, it is up, done and binding.

Flexible Timelines

A Binding Financial Agreement can be prepared at any stage of your relationship. You could enter into a Binding Financial Agreement before you enter into a marriage or a de-facto relationship, during the marriage or de-facto relationship, when you are contemplating separation but haven’t filed for divorce yet and when you are absolutely separated or divorced.

Disadvantages of a Binding Financial Agreement

Despite the benefits, there are a few unavoidable disadvantages in entering into a Binding Financial Agreement. Read on to learn more about them.

Elaborate and Confusing Legal Advice

As iterated before, the legal advice on the implications of a Binding Financial Agreement is usually quite detailed and contains a lot of information. Hence, the legal advisors send in their advice in written form instead of keeping it verbal. The information contained in the written advice is not only immense but also profound and can overwhelm the reader.

Risk of Unenforceability

A Binding Financial Agreement, if not drafted properly, cannot be enforced. Similarly, if the advice certificates from the solicitors have some issues, the Binding Financial Agreement can be rendered unenforceable. So when signing on the BFA papers, you need to ensure that the advice certificates are in order and the BFA itself is drafted properly.

Cumbersome Legal Process

If for any reason, one of the parties does not fulfil the stipulations mentioned in the Binding Financial Agreement, the other party can apply for intervention by the Court. The court will be requested to enforce the said BFA and this process could take a few weeks, not to mention the other complexities involved in legal procedures.

How Are Consent Orders Different From BFAs?

There are some major differences between a Consent Order and a Binding Financial Agreement.

Involvement of the Court

For a Consent Order to be binding, the Family Court needs to give their approval with a stamp and a seal. However, there is no such requirement for a Binding Financial Agreement. As long as both involved parties have been given thoroughgoing legal advice on the stipulations and implications, a BFA stands binding. Court intervention is not required.

Fairness and Equitability

A Consent Order has to be fair and the division of assets as per the Consent Order should be equitable and justified. The terms and conditions mentioned in a Consent Order should fall under the scope of Family Law. However, for a Binding Financial Agreement, there are no such requisites of equitability and justified division of assets.

Difference in Timelines

The application, filing and final binding of a Consent Order is a protracted process wherein the review stage alone could take up to one to eight weeks. And if there are issues with the information provided in the Consent Order, there could be more iterations and thus, more time taken to finalise the document. However, for a BFA, there are no court proceedings involved and hence can be done sooner.

Coverage

A Consent Order covers parenting rights as well besides containing clauses on the division of assets and finances. However, a Binding Financial Agreement stays strictly financial and does not include parenting or visitation rights after separation or divorce.

Legal Counsel

Preparing a Consent Order , although rather difficult, can be done by the couple themselves and a legal expert need not be involved. However, when preparing a Binding Financial Agreement, it is imperative that each party has an independent legal counsel who can advise them on the stipulations mentioned in the BFA and its effects.

FAQ

Should I go for Consent Orders or a BFA?

A BFA is a better option if you would like to settle your financial matters sooner which would also include your superannuation funds and spousal maintenance. However, if there are children between you and your spouse or partner, a Consent Order is a better option since it includes parenting and visitation rights as well. To get a clear picture, it is better to get professional legal advice before choosing the right path.

When can Consent Orders be revoked?

Like all legal orders and documents, a Consent Order can also be revoked. If one of you can prove in the Family Court that the Consent Order is based on insufficient or false evidence and is unfair by all means, then the Consent Order can be revoked. In case, there has been a change in your situation, financially or otherwise, then you may request for the Consent Order to be amended such that it includes the requirements of your changed circumstances.

When can a Financial Agreement be set aside?

A Financial Agreement can be set aside under the following circumstances:

If the agreement is void or unenforceable due to any reason.

If there is ample proof to show that the agreement was obtained fraudulently.

If there is ample proof to show that a major piece of evidence was withheld.

Plus there are a host of other reasons for financial agreements to be set aside. Hiring a legal expert would help you make clear decisions about choosing financial agreements over Consent Orders and vice versa.

When do BFAs become legally binding, and how are they created?

BFAs become binding on both the involved parties when the BFA is in writing and both parties have been amply advised on it. Both parties are required to hire legal experts who can counsel and advice you on the effects and implications of the BFA. After having a thorough understanding of the financial agreement, both parties are required to sign it which will make a BFA binding on both the involved parties.

To create a BFA, the two parties need to understand the terms and conditions that will form the basis of the BFA. Once signed, the agreement is in place and makes it a binding document without any involvement of the court.

When do Consent Orders become legally binding, and how are they created?

Consent Orders become legally binding when they are approved and stamped by the Family Court. Before approving, the Court determines if all the stipulations mentioned in the Consent Order are in accordance with the Family Law. The Court will also determine if the division of assets and finances is equitable and just. Once the Consent Order checks all these boxes, it is approved, stamped and sealed by the Court, thereby making it a legally binding document for both parties.

Are Debts Shared in a Divorce in Australia

Fri, 29 Mar 2024 07:35:55 GMT

Debts and Divorce

When people get married, divorce is the last thing on their minds. They are only thinking about how to make their relationship richer and more fulfilling than ever before. They spend a lot of time, effort, and money trying to set up a happy home. However, when a divorce does occur, not all resources and energy you put into the family can be returned or reimbursed to you. What you should aim for is an equitable and just division of assets and liabilities in the separation. With the help of the eminent family lawyers at Maatouks, that should hardly be an issue. Call us today for a free phone consultation.

What is a Debt in a Divorce

The average Australian household has a debt of over a quarter of a million dollars. That is quite a significant amount and cannot be dismissed in a divorce settlement. Property settlement is one of the most important aspects of divorce proceedings, in which the complete assets and liabilities of both parties are assessed and divided in an equitable and just manner between them. However, the aim of both sides is to maximise the assets they receive while minimising the debts they are made responsible for. Debts in property settlement can either be incurred by oneself or together with your spouse. In either case, a decision must be made regarding whether to include the debt in the asset pool depending on the purpose and other aspects of the debt.

Can I be Held Liable for My Spouse’s Debts During a Divorce

The nature of the debt and the financial conditions and responsibilities of each party plays a role in deciding who will have to take up a debt or a portion of it. If the debt was incurred by only one of the spouses for their individual purpose, then, the most likely course for the debt is to remain with that person. However, if the debt was a decision of both parties taken for the upkeep and improvement of the family, it would be added to the joint asset pool.

If the debts are minor, then, to prevent complications, the judge might decide to let each spouse handle their own debts. However, hardly any case is that simple and hence, the question of debt settlement comes. A lot of factors must be considered when deciding who needs to take up which debt, like the current financial state, future financial responsibilities, number of dependents, if any, medical conditions, present and future earning capacity, any foreseeable earnings or spendings that will seriously affect their finances, and so on.

Based on all these factors, the judge will decide how to separate the debts. In this process, it is entirely possible that a debt originally taken by your spouse may come upon you and vice versa. There is also the possibility that a loan may be refinanced so that only one party will have to take care of it, making things simpler. If you have sufficient assets, they might be sold to repay some of these debts in the property settlement in a bid to allow the spouses to step into their new life with zero or minimal historical debts from their deteriorated marriage or relationship.

Are Post-Separation Debts My Responsibility After Divorce

A lot of people make the mistake of thinking that the joint asset and liability pool to be divided gets closed and calculated on the day of the separation. But that is not true. The asset pool is calculated on the day of receiving the court consent orders for a binding financial agreement. Until then, any earnings, expenses and debts incurred will be counted into the asset and liability pool.

Often, this information may cause one or both spouses to start spending or taking debts with the intention of depriving the other of the assets to be divided. This is called dissipating the asset pool. If the judge deems that your post-separation debts were taken irrationally or illegitimately, with an intention to dissipate the asset pool, he may exclude that debt from the asset pool completely.

It is not uncommon for lawyers to use wastage or dissipation of assets to argue against valid debts and expenses to secure more assets for their client. You can argue against it and show the legitimacy of the debt, but the best solution is to finalise the financial agreement as soon as possible after the separation.

Which Debts are Excluded from the Asset Pool During Divorce Proceedings

As we have talked about before, the court decides whether a debt will be included in the joint liability asset and liability pool or not depending on the purpose of the debt and which parties it benefits. Depending on the complete assessment of these factors, the judge will decide who is responsible for the debt. However, there are a few common cases in which a judge will invariably decide not to include a debt in the pool. These include:

Debts That Were Taken By One Of The Two Spouses Solely For Their Benefit And The Money Obtained Did Not Go Into The Family, Matrimonial Joint Expenses, Or The Other Spouse Will Be Considered Solely The Responsibility Of The Spouse Who Took The Debt. It Does Not Matter If The Debt Was Incurred Before, During, Or After The Relationship.
Debts Incurred Due To Irresponsible Spending Like Gambling Or Drugs, That Did Not Benefit The Other Spouse And In All Probability, Probably Harmed The Spouse And The Family, Will Be Considered As The Sole Liability Of The Responsible Party.
Debts Due To Reckless Actions That Reduce The Asset Pool, Like Giving Away Joint Assets To Other People, Incurring Losses On A Personal Front Like Your Own Business, Or Paying Other Members Of The Family Not Involved In The Relationship Or Marriage, Which Resulted In The Reduction Of The Joint Asset Pool Will Again Come Under The Responsibility Of The One Who Took Such Actions.
Liabilities Incurred Through “Waste”, I.E. Deliberate, Malicious Actions Meant To Reduce The Asset Pool Will Again Be Vested In The Responsible Party Only. However, It Must Be Proved That Those Expenses Can Be Classified As A “Waste”. For Example, If The Money Was Spent Right Before Financial Disclosure, If The Expense Was Unnecessarily Lavish, Or If An Attempt Was Made To Make A Joint Asset Look Like An Individual One Or Conversely, An Individual Debt Look Like A Joint One, It Can Be Excluded From The Joint Asset Pool.

Visit a Family Lawyer in Sydney if You are Worried About Your Debt After Divorce

The emotional turmoil of going through a divorce often causes one to overlook the financial aspects, which can decide your future. Instead of taking a risk, it is advisable to consult a family lawyer to sort out these aspects of a divorce. If you need expert family lawyers in Sydney to help you with debt and asset settlement after divorce, Maatouks Law Group is the best choice for you in Sydney.

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Overseas Assets in Property Settlement in Australia

Fri, 29 Mar 2024 07:35:55 GMT

If you are looking for information regarding what happens to assets that are in overseas locations during property settlement in Australia, then this blog may be helpful for you. With more people investing in properties overseas thanks to growing access to information and purchasing power, there is a need to know how overseas assets are handled during property settlement in Australia. Let us get started!

Examples Of Overseas Assets in Divorce Property Settlement

Before proceeding further, let us see a few examples of overseas assets. X and Y are married in Australia and have assets in country A. They now decide to divorce. Another example is X and Y are married and divorced in country A and have now moved to Australia. Whatever the case may be, it is advisable to seek an enforceable agreement in the jurisdiction where the assets are located. This is recommended as rules/laws vary in different countries and agreements made in one country may not necessarily be enforceable in the other country. It is also wise to seek assistance from a legal expert who knows the intricacies of law in both countries.

A few things that are considered during property settlement include the location and nature of the asset/property, ownership details of the asset, the acquisition of the asset before/during the relationship and after the separation, do the Australian courts have jurisdiction to deal with that asset, does the foreign country where the asset is located have jurisdiction to deal with the asset, is it in your best interest to pursue the property settlement in Australia or the country where the asset is located, and if you reach a settlement in the foreign country or Australia, will it be enforceable in both the countries.

Are Your Overseas Assets Included in An Australian Property Settlement?

Overseas assets are considered and are a part of the Australian property settlement. The biggest challenge when dealing with overseas assets is the issue of jurisdiction. As every country has their laws it is important to consider if Australia has jurisdiction to deal with overseas properties or would a foreign jurisdiction be better suited. This is especially vital when transferring property from one person to another or during sale orders. As a best practice, it is advisable to obtain a property settlement agreement in the country where the assets are there. This ensures lesser hassles. You should also consider the costs and complexities associated with other jurisdictions. Your legal advisor will be able to guide you effectively as per specific requirements and conditions.

When Will the Court Make Orders Regarding Overseas Assets?

The country where the separated/divorced parties have a maximum connection will usually be the judicial system that deals with property settlement. This includes the country where the assets are located and where the separated/divorced parties stay. The first step in determining property settlements is identifying the assets, liabilities, and superannuation owned by both parties who are getting separated. Once the details regarding individual and joint assets/liabilities are provided, the court assesses the contributions by each party and divides the property on a case-to-case basis as per individual requirements.

If an overseas jurisdiction recognises an order by an Australian court, it will be enforced in that country. It is the decision of the foreign country whether they recognise and enforce an Australian judgement against the property/asset. The Australian court may therefore consider a few things before determining how to deal with overseas properties which include whether the foreign court recognises the Australian orders, the parties’ connection to either jurisdiction, or the costs involved in the process. It is simpler for the court and the parties involved to assess the value of the assets and treat them as a financial resource in cases where there are more complications involved.

Which Country Is Best for Property Settlement?

Determining which country is best for property settlement can be a bit tricky, especially if you have assets in both Australia and a foreign country. The wisest and foremost thing to do would be to get legal advice both in Australia and the country where you have the overseas assets. It is always beneficial to be informed about each country’s way of dealing with property settlement. One should never forget that every country has their own rules which may differ from others and one country’s laws and judgement may not be enforced in another. For instance, some countries may exclude the assets accrued before the marriage and some may not consider the period the parties were in a de-facto relationship. Some countries may not consider inherited assets during the property settlement. Hence, it is always better to get all the information before you commence with filing property settlements.

You can file your proceedings in Australia if either of the parties is an Australian citizen, a resident of Australia, or present in Australia during filing proceedings. The court considers a range of factors when determining whether proceedings should be stayed/dismissed including whether the other country will recognise Australian orders and vice versa, the place of residence of the parties, the connection of the parties to each jurisdiction, and whether there is any advantage in litigating in either jurisdiction.

Can Your Family Law Settlement Be Given Effect in Both Countries?

It is very important to check if the property settlement order can be enforced in both countries. This means you may require obtaining advice in both Australia and the country where the assets are located. If you miss ensuring that the court orders can be registered and enforced in both countries, you stand the risk of not being able to enforce the settlement properly and as planned. Getting in touch with a legal expert is the wisest decision to ensure you are not caught in the intricacies and loopholes of the legal system.

Need Expert Advice About Overseas Assets in A Property Settlement in Australia?

Understanding the legal details can be quite daunting for a layman and having an expert to assist means a lot. Maatouks Law Group is one such renowned and trusted law firm with an experience of 25-plus years. With a qualified and highly-skilled team, we are helping families and businesses with an array of legal issues effectively. Get in touch and our team can provide expert advice about property settlement of overseas assets in Australia. Let us see why you should consider Maatouks Law Group for any legal assistance.

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Legal Rights and Benefits for De Facto after Breakup in Australia

Fri, 29 Mar 2024 07:35:55 GMT

What is the Legal Definition of a De Facto Relationship?

In accordance with Australian family law (Section 4AA of The Family Law Act 1975), a de facto relationship refers to two people of the opposite or same sex living together as a domestic couple daily. The stipulations that are involved here are that you cannot be a legally married couple or related to each other by family.

In some cases, a de facto partner might be a person who is still legally married to another person. But the de facto agreement is only valid if he or she is separated.

What is the Duration of a De Facto Relationship?

The length of time that is required to be considered a de facto relationship is at least two years. Therefore, as per the law, a person can only have a de facto partner if they have lived together as a couple without separation for a period of two years. Only in this case, a court can intervene and issue an order regarding settlements of de facto property matters. However, the rule can be evaded if significant contributions were made during this time or if children are involved.

As per Section 90SB of the Family Law Act, the court mandates the fulfilment of certain criteria to make an order of maintenance or acknowledge and regulate the property interests of former de facto couples. These are listed below:

The Total Length Of The De Facto Relationship Must Be At Least Two Years.
The Child Involved Belongs To Both Parties Engaged In De Facto Relationship.
The Relationship Has A Legal Registration Or Approval From The State Or Territory.
The Parties Involved In The De Facto Relationship Should Apply For:

The Party Involved In The De Facto Relationship Applying For The Declaration Or The Order Should Have Made A Considerable Amount Of Contribution To The Property Or For The Well-Being And Happiness Of The Family; And,
A Non-Observance Or Non-Fulfilment To Make The Declaration Would Result In The Applicant Having To Bear Serious Consequences Or Injustice.

Would it be Necessary to Attend Court if We End Our Relationship?

It is not a necessity to go through trials if you choose to terminate your de facto relationship. There are cases where de facto couples do not have to divide the assets, debts, or other properties when they mutually agree to break up. However, not all cases are similar, and in your case, you may wish to claim a percentage of a property or full ownership of an asset. You can resolve the dispute or reach an agreement without involving the court.

In cases where you cannot decide on a fair property settlement, you can apply to a court to get a justified verdict. The jury and judge will assist you in having a proper division of property. Furthermore, the ex-partner can make a claim on superannuation for a specified period of time following the separation. In certain circumstances, spouse maintenance might be applicable.

However, you have to go through court proceedings within two years of separating from your former partner. Otherwise, you will have to apply for special court approval.

What is Included in the Term ‘Property of the Relationship’?

The ‘property of the relationship’ simply refers to all the debts and assets that both the parties in the de facto relationship owned or have separate names. The assets include all the objects or properties that were procured before or after the conclusion of the relationship. These items include but are not limited to:

The Family Home (Residential Property)
Superannuation
Cars And Boats
Money Pending On Personal Loans Or Credit Cards
Home Loan Debt
Shares And Investments
Personal Or Household Items Like Jewellery, Furniture, Art Pieces, Etc.

Most people have a hard time coming to terms with ownership of the property or comprehending the notion of ‘Property of the Relationship’. In such cases, it is wise to seek legal advice from authorised law firms like Maatouks Law Group. Furthermore, we also help you protect your assets in a de facto relationship with the help of a property settlement agreement, which is like a pre-nuptial agreement.

What Impact Does the Separation Have on Superannuation?

Superannuation is one of the major areas of focus following a de facto relationship split. As per the superannuation splitting laws, once you separate, there is a probability that you will be entitled to some of your ex-partner’s super and vice versa.

Superannuation is considered an asset and viewed under the same lens as all the assets in the property lot (except in Western Australia). There are certain protocols one has to abide by while accessing the assets.

One must also refer to the policies outlined under the Family Law Act that include:

Superannuation Fund
Self-Managed Super Funds
An Approved Deposit Funds

And the list goes on. The decision to provide benefits to a de facto partner depends on the superannuation fund’s discretion. The chances of getting the discretion exercised work in your favour only if the partner makes a legally binding death nomination and you have a registered partnership.

However, if you struggle to understand the various policies, you should not hesitate in contacting Maatouks Law Group. We have been operating since 1993 and have a deep grasp of the various nuances involved in court proceedings and legal aspects pertaining to de facto relationships and property settlements.

At What Point Do Property Rights for De Facto Relationships Come into Effect?

The property rights for de facto relationships come into effect once the relationship has ended. Generally, you have entitlements to your partner’s property and the property of the relationship. These are collectively referred to as de facto break-up entitlements.

You have the right to make a property claim under the Australian Family Law Act when:

You Get The De Facto Relationship Registered
You And Your Former De Facto Partner Lived Under The Same Roof And Together For At Least A Period Of Two Years Before You Went On Your Separate Ways
You And Your Former De Facto Partner Have A Child Or Children Together
You And Your Former Partner Have Agreed Upon A Property Settlement And Have Requested The Family Court To Issue Consent Orders That You Two Have Mutually Decided

The property includes many items such as bank accounts, business assets, real estate, superannuation, personal property, and more.

But there are cases when you find property disputes to be cumbersome, and this is where Maatouks Law Group offers optimum assistance. Our local professional Sydney lawyers are friendly, and we help you reach a conclusion without the hassle. We have close ties with some of the top barristers in New South Wales and we stay aware of all the legal updates to give you an edge in your case.

What am I Entitled to if my De Facto Relationship Comes to an End?

If your de facto relationship comes to an end, your entitlement to the relationship properties will depend upon the circumstances. Every case is distinct; hence, your entitlements will differ from others

However, Australian family law provides specific fundamental norms and criteria to determine the property claims of de facto couples who have separated. In this regard, the time constraint is the most significant factor. Once you separate, you have only two years to file a property claim in court. During this two-year phase, the parties try to negotiate an agreement. Only if this fails, the case is applied to a court.

If you file a claim, the Family Court decides how to split the assets or the property entitlements by sticking to the following parameters:

Finding And Estimating The Value Of Each Property Item That Either Party Owned Before Moving In Together And Later Acquiring Possessions.
Evaluating Both Parties’ Financial And Non-Monetary Contributions.
Taking Into Account The Prospective Requirements Either Party Might Have.
Assessing Whether The Proposed Split Is Equitable For The Involved Parties.

A point to be noted here is that the time limit does not hold well if there are child/children involved. If you have children, it dissolves the entitlement rights in various ways. You might have to pay child support or if you or your partner quit your job, one of you is entitled to spousal maintenance.

If you are looking for legal consultations, Maatouks Law Group comes second to none. We treat each client with utmost respect and integrity and strive to offer full cooperation so that you remain well-informed about the legal proceedings. When you hire us, our experienced professional lawyers delve into the procedure with the help of which we will handle your case and work to achieve the desired outcome.

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What to Do if Your Spouse Won’t Sign the Divorce Papers?

Fri, 29 Mar 2024 07:14:24 GMT

Getting a divorce can be quite a complicated and stressful experience. If both spouses agree to it and are getting an uncontested divorce, it makes the process simpler. However, that is not always the case. In many instances, one of the ex-partners may seek to contest the divorce either because they do not agree to the separation or the grounds for it. However, there are legal mechanisms in place to help you if that happens. Moreover, Australia allows no-fault divorces, meaning that the definite breakdown of the marriage takes precedence over the cause of it when granting the divorce. Hence, you should not have to deal with overwhelming trouble if your ex-partner is refusing to sign the papers and you are protected from any harm or intimidation from them.

Communication and Negotiation Strategies

It is in the welfare of both parties that the divorce happens with the consent of both. If one party is denying the need for divorce and you believe that this can cause delays or issues later, it is advisable to sit down and negotiate to avoid unnecessary hassle. You can go for family dispute resolution with an independent practitioner to convince your dissenting ex that a divorce is the most logical solution to the breakdown of the marriage. In fact, you can request mediation even after court proceedings have commenced.

Mediation is also recommended if children under the age of 18 from the marriage are in the picture. It helps you figure out the best way to make the separation less traumatic for them and ensure amicable co-parenting after the divorce. Mediation is also a great opportunity to discuss asset division and other financial matters. Prior resolution makes the transition smooth and less distressing.

However, even if such negotiations do not bear any fruit, you may move forward with a sole application for divorce and allow the court to judge the circumstances and decide whether the divorce should be granted or not.

Legal Requirements for Divorce Papers in Australia

As mentioned before, Australian law has provisions for no-fault divorce. The Family Law Act of 1975 lays out that a divorce may be granted “on the ground that the marriage has irreparably broken down.” Hence, the court will only ensure that certain conditions are met before granting the divorce. The two main requirements are:

The Couple Has Been Separated For At Least 12 Months Before The Application For Divorce Is Lodged.
The Marriage Has Broken Down Beyond Any Chance Of Reconciliation.

Whether you are opting for a joint or sole application for divorce, these conditions must be met and the same proved with irrefutable evidence in court for the divorce to be granted.

Options Available if Your Spouse Refuses to Sign under Australian Law

When you file for a sole application for divorce, it is imperative to serve your ex-partner with the papers through the proper channel and process. If that is not ensured, the divorce finalisation may be delayed or even rejected, and you may have to start the entire process all over again. Your ex-spouse may file for a Response to Divorce if they do not agree to the papers that you served them. The two most common reasons for filing a Response to Divorce are:

If The Ex Completely Disagrees That The Divorce Should Happen
If They Wish To Get The Divorce But Disagree With Any Of The Facts Presented In The Application

If a Response to Divorce is lodged, the court will set a hearing date to obtain an explanation from your dissenting spouse as to why they believe the application should be dismissed. You should bring a divorce lawyer with you to this hearing to support your cause and refute any points raised by your ex that you do not agree with. If your ex does not attend the hearing, the divorce proceedings will still go ahead. However, if they cannot attend the hearing physically, they have the choice to opt for a telephone hearing. Even after the hearing, they may refuse to sign the papers. In either case, the court can still grant the divorce if it is satisfied that the two conditions for the divorce as laid down above are met.

However, you must prove that your ex was properly served the application papers through an affidavit. This must be filled out correctly and accurately or you may have to serve your ex again. In fact, the Application for Divorce might be postponed or even cancelled if you cannot prove that the papers were served in a proper manner. Moreover, this may also happen if the application contains inadequate or incorrect information fulfilling the requirements of the divorce (for example, if you cannot prove that you have been separated for more than 12 months).

Mediation and Alternative Dispute Resolution in Australian Family Law

Family dispute resolution is highly recommended if matters like asset division, child custody, etc. are involved. Having all such matters figured out makes the divorce proceedings smoother and less fraught with disputes. Moreover, if the two parties disagree to whether the divorce should move ahead or not, mediation is a great way to bring them on the same page, be it an agreement to divorce or a decision to maintain the marriage or relationship. If, during the divorce proceedings, there is an impasse or the court is unable to decide if the conditions for divorce are met, they may order alternative dispute resolution in the presence of an independent third party to resolve the issue and get a clearer picture regarding what the next steps should be.

Seeking Legal Counsel in Australia: Steps and Considerations

The steps to seeking a divorce in Australia comprise:

Step 1: Determine that All Criteria are Met

Before filing for a divorce application, you must ensure that you meet the two most important criteria for divorce – that you have been separated for over 12 months and that the marriage is irreparable. You should seek legal assistance to make sure that you have all the necessary documents to prove the same in court.

Step 2: Prepare the Application for Divorce

Next, you must file for the Application of Divorce. This may be a joint or sole application. You can obtain this application from the Federal Circuit and Family Court of Australia (online or offline). You must also provide proof of marriage, proof of Australian citizenship or residency, and proof of separation for more than 12 months.

In a joint application, this proof of separation should come from you and your ex in the form of an affidavit each, while for a sole application, you and a third party trusted to honestly contend to your separation status must provide the affidavit. You must pay the filing fee, but you may seek an exemption or reduction, granted that you can prove that you are eligible for the same.

Step 3: Serve the Divorce Application

In case of a sole application, the application must be served with relevant documents to your ex-partner. This may be done by hand or by post. However, if your ex is trying to hinder the divorce proceedings by avoiding the service, you should hire an official process server, provide them with a photo of your ex along with their registered address, phone number, and all other contact details, and then, file the proof of completed service with the court. The papers must be served at least 28 days prior to the date set for the hearing. Papers may also be served to any other person above the age of 18, other than the couple in question.

Step 4: Attend the Divorce Hearing

If you have made a joint application for an uncontested divorce or one of the parties has requested a variation or dispensation of the usual procedure for special reasons that have been granted, a hearing may be bypassed. However, in case of sole applications and contested divorces, a hearing is deemed necessary. Moreover, if you have children from the marriage under 18, you must attend the hearing to assure the court that proper arrangements have been made for the children that are in their best interests.

If the served person does not attend the hearing, the proceedings will still go ahead. However, in case it cannot be proved that your ex was properly served following all necessary procedures or that the application for divorce does not have sufficient information regarding whether it meets the necessary criteria for a divorce, the application may be postponed or even cancelled.

Step 5: Finalise the Divorce

Once the court has ensured that all necessary requirements are met, it will give the order for the divorce. Once finalised, it takes one month and one day for the divorce to come into effect. However, finalising a divorce order does not mean asset division or child custody arrangements are resolved. They constitute a different legal process that you must still attend to.

Court Intervention in Australian Jurisdiction: Processes and Considerations

In case of marriage breakdowns where abuse or domestic violence is involved, the court may issue an intervention order to prevent harm to the victim while the divorce proceedings are in progress. Moreover, any requirement for dispute resolution will also be bypassed.

Navigating Uncontested vs. Contested Divorce Scenarios in Australia

An uncontested divorce is the quickest and easiest to obtain. A joint application is made and even a divorce hearing may not be necessary if both parties agree to it and all conditions are fulfilled. However, in a contested divorce, if you are the one contesting it, we recommend that you attend the hearing without fail to present your explanation. Otherwise, the divorce would be finalised even in your absence.

Finalising the Divorce Without Spouse’s Signature in Australia: Possibilities

Even if the ex contesting the divorce refuses to sign the papers, the court has the right to grant the divorce if it concludes that the couple has been separated for over 12 months and the marriage is beyond reparable.

Get in Touch

Divorce puts you in a tough spot, whether you are applying for it or contesting it. Do not go through it alone; our family lawyers at Maatouks Law Group will guide you through it. Contact us and find out more about our services.

The Role of a Child’s Voice in Family Law Proceedings

Fri, 29 Mar 2024 07:14:24 GMT

When it comes to Family Law in Australia, the proceedings are lengthy and complicated. While the involved parties present their cases, children under the age of 18 are often unheard and underrepresented. Even when crucial decisions are being made in separation cases that involve the children’s well-being and best interests, the children are not adequately heard, nor are their opinions given much consideration.

In recent years, however, there has been a visible change in the legal approach in such cases, and children’s voices are being given more importance. Children are being encouraged to express their views about matters that could impact their lives directly and indirectly.

Overview of the Child’s Legal Standing in Australian Family Law

The Australian Family Law provides a legal framework for all family law proceedings that consider children’s voices to be important and recognise that the children have a right to be heard as well. Underscoring the best interests of the child, it is important to allow the child to play an active role in the legal processes of the case, which could have a massive impact on their lives.

The child’s views are important and rather critical when making decisions about their well-being, their best interests, and their lives. While taking the views of the children, their age and level of maturity are considered. Furthermore, it is recognised that, as the child grows, their ability to think rationally and express their views confidently improves. In every case where children are involved, their best interests are prioritised, and their views are seriously heard.

Understanding the Child’s Right to Be Heard

It is important to understand that a child’s right to be heard is not a mere formality. The objective of giving children an opportunity to be heard is to foster an environment in which children can express their views freely and to bring about outcomes that are more reflective of the child’s needs and circumstances.

The child’s right to be heard is smoothly implemented by means of detailed family reports, child-inclusive mediations, and Independent Children’s Lawyers. This helps gain insight into the child’s views and understand the aspects that would work in their best interests.

Methods Employed to Elicit the Child’s Perspective in Australia

Getting the child to share their views is a challenging task, especially in a highly emotional situation. However, there are several ways to elicit the child’s perspective, and by creating a conducive environment, this can be done effectively. Thus, it is reasonable to say that this is a highly nuanced process and needs to be handled delicately.

The different ways to elicit a child’s perspective are:

Family Reports

Family reports provide a detailed assessment of the child’s views, in alignment with their age and maturity. These reports are made by family consultants, psychologists, and social workers appointed by the court. The reports are prepared after assessing the family dynamics and observing the interaction of the child with parents and other members of the family.

Child-Inclusive Mediations

This method helps obtain a child’s views directly, while a trained mediator facilitates open communication between the child and their parents. As the child is encouraged to speak up and express their views uninhibitedly, they allow us greater insights into their feelings, emotions, and opinions.

Independent Children’s Lawyers (ICL)

Independent Children’s Lawyers are appointed by the court solely to represent the interests and views of the child. The ICL, independent from the parents and advocates, interviews the child and attempts to elicit their views. These views may be presented in court, which might in turn help in making decisions that work in the best interests of the child.

Direct Court Testimony

When the child involved is older and more mature, they are asked to provide their testimony in court in person. The child gets to speak directly to a judge and express their views openly. Right from their preferences, their concerns, and their feelings, the child can share them all and get a decision that works best for them.

Challenges and Considerations: Integrating the Child’s Voice

As already mentioned, getting a child’s views on issues relating to their lives and parents can be difficult, as it is a highly nuanced process. Some of the possible challenges that may hinder the smooth execution of the child’s right to be heard are:

Age and Level of Maturity

Every child has their own way of expressing their views, and this is more distinctive by the age of the child. Younger children may struggle to articulate their feelings accurately, whereas older children are clearer with their expression.

Parental Influence

Knowingly or unknowingly, parents tend to influence the thoughts and views of their children. It befalls the court to discern a genuine view from an influenced one. It is very important to make decisions that will be in the best interests of the children.

Cultural Sensitivity

While getting the child to express their views, the court and all involved parties must keep in mind the cultural differences and adhere to culturally appropriate methods. This provides a familiar environment for the child, which encourages them to openly discuss their concerns and views.

Trauma and Vulnerability

Besides being culturally sensitive, the courts and involved parties should also be aware of the situation of the child. It is possible that the child might be suffering trauma or be vulnerable to other mental and emotional conditions that may cloud their expression.

Benefits of Incorporating the Child’s View in Australian Context

Allowing children to share their views in family law proceedings goes a long way towards their well-being. They feel recognised and empowered. Here are some of the most noticeable benefits of incorporating a child’s view:

Empowerment and Autonomy

When children are allowed to express their views, they feel empowered, and this empowerment gives them a sense of self-worth and more confidence. They can assertively state their opinions and believe that their views matter.

Child-Centred Decision Making

When the child involved is able to share their views and feelings firsthand with the court, it becomes easier to make decisions that work in their best interests. It can be ensured that the decisions are made primarily centred around the interests and well-being of the child.

Reduced Psychological Distress

In a situation of great emotional and mental turmoil, children can feel overwhelmed and distressed. They may have a lot of views and opinions to share. As they get an opportunity to open up, there is a high chance that the psychological distress is reduced, and they can feel freer.

Better Compliance with Court Orders

It has been shown in several studies that children tend to comply with court orders when they feel their views have been heard. When they cooperate with court rulings, their parenting arrangements can be implemented successfully.

Improved Relationship with Parents

When children are heard, they tend to open up more, and this helps improve their communication with parents. Therefore, the relationship with them improves too, during and after the separation process.

Psychological Impact and Support for Children Involved

Cases of divorce or separation come with several challenges, and most of them are related to emotional and psychological well-being. The stress and associated breakdowns can be quite an overwhelming experience. While adults deal with these challenges in their own way, children find it hard to cope. The kind of psychological impact a child suffers also depends on their age. Hence, it is important to give voice to the children and ensure that their voices are heard and considered before making any decisions about their lives.

Ethical and Legal Considerations in Representing the Child’s Voice

Representing a child’s voice in any family law proceeding calls for careful consideration of the ethical and legal aspects. Legal professionals must keep in mind that when a child and his views are being represented, it is important to align the process with honesty and fairness. It is important to steer the child away from any potential influence, direct or indirect, and allow them the autonomy to express their views without inhibitions.

Furthermore, a lawyer needs to consider the age and level of maturity of the child. Expression and articulation of views are not so easy for a young child, whereas for a slightly older child, it may not be very difficult. Clarity in expression is very important to make decisions that work in the best interests of the child. The lawyer needs to make sure that the child’s views are expressed clearly and understood unambiguously.

The lawyer representing a child’s voice also needs to make sure that the views and opinions are kept confidential. The views of the child may be private and sensitive and therefore call for confidentiality. Moreover, the legal representative of the child’s voice should make sure that the child participates in the interviews voluntarily and is not under any pressure or coercion.

In the process of representing the child’s voice, it is important to consider all aspects of ethical and legal implications. A fine balance needs to be maintained between ethical considerations and legal obligations while dealing with cases involving a child and while representing the child’s voice.

Judicial Interpretation and Weight Given to the Child’s Perspective

Although the Family Law Act 1975 clearly states the importance of eliciting the child’s views and considering the child’s best interests, the weight assigned to the child’s views is quite subjective and depends on judicial discretion. Factors such as the child’s age, maturity level, and circumstances are considered before assigning weight to the child’s views.

Using procedures like family reports and child-inclusive mediation and with the help of Independent Children’s Lawyers, a fairly accurate assessment can be made of the child’s views and opinions. Judicial interpretation involves a more meticulous assessment of the child’s ability to express their views and the ingenuity of the expressed opinions. While older children’s views may be accorded more weight, those of younger children may be considered carefully before assigning weight to them.

Grandparents’ Rights in Custody and Visitation Matters NSW

Fri, 29 Mar 2024 07:14:24 GMT

Grandparents’ Role in Family Dynamics

NSW as well as Australian law puts a lot of importance on the welfare of a child attained through maintaining a relationship with their relatives, including their grandparents. In ideal situations, a child should have a relationship with their grandparents, but that is not always the case, especially if there is a breakdown of their relationship with the parents. In any case, if the child or children have surviving grandparents who are capable of maintaining a healthy and beneficial relationship with their grandchildren, the law would favour the same.

Legal Foundations: Understanding Grandparents’ Rights

Grandparents’ rights to be present in the lives of their grandchildren are outlined in quite explicit terms in Section 60B of the Family Law Act (1975). It clearly states that “Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives).”

It should be noted here that this does not automatically give grandparents a legally binding right to be in contact with their grandchildren. The child’s welfare is paramount. In other words, a grandparent cannot simply demand to stay in touch or care for their grandchildren; it will be decided if it is in the best interests of the child to be in contact with or live with their grandparents partially or completely. However, grandparents do have the right to discuss with the primary caregivers of the child or apply in court requesting visitation or custody rights. Whatever decision is reached must be respected by all parties.

Types of Relationships: Visitation vs. Custody

There are two ways in which one or more grandparents may request to exercise their rights to their grandchild. They may either ask for visitation or custody. Visitation refers to the right to spend time with the child, either in person or via other means, either in the presence of their primary caregiver or not. Thus, visitation in NSW and Australia can be defined in ways other than directly spending time with the child, like contact through phone, text, email, video call, social media, and so on.

On the other hand, custody refers to rights given to the grandparents (in this case) to exercise primary responsibility for the care and upbringing of the child, either for partial periods in their life or throughout the entirety of their remaining childhood years, as decided in mediation agreements or mandated by the court. Once again, the decision is based on what is best for the welfare and healthy development of the child.

Factors Influencing Grandparents’ Rights

As we have mentioned before, grandparents do not have the automatic right of access to their grandchildren. If the parent/s or primary caregiver/s of the child are unwilling, unable, or incapable of providing a healthy childhood to the child or it is clear that they are inhibiting or endangering the healthy growth and development of the child, it would be in the favour of the grandparents to apply for visitation or custody rights.

However, at the end of the day, the deciding factor would be the best interests of the child. That implies that the court will consider:

The Protection Of The Child’s Physical, Emotional, And Mental Health And Safety
The Benefits Of Having A Meaningful Relationship With Their Grandparents
The Relationship Dynamics Of The Child With Their Grandparents While Considering The Equation Of The Parents With Both.
If The Child Is Sufficiently Financially Supported And Receives All The Resources And Assistance For Healthy Development
The Likely Effect This Change Will Have On The Child, Especially If The Grandparents Have Not Seen The Child For A Long Time Or Been In Their Lives For A Short Period Only
If The Grandparents Themselves Are Physically, Mentally, And Financially Capable Of Sustaining The Child’s Healthy Lifestyle.
Whether There Is Evidence Of Any Family Violence, Any Type Of Abuse, Or Neglect.
If There Is A Case Of Drug Abuse By The Primary Caregivers
If There Is Sufficient Cause To Believe That The Child Is Facing Any Kind Of Endangerment
The Opinions And Wishes Of The Child If They Are Old And Mature Enough To Convey The Same.
Any Other Factors Specific To The Case

Legal Procedures for Grandparents Seeking Custody/Visitation

If you are a grandparent seeking visitation or custody rights for your grandchild, it is best to attempt it in the following order:

Step 1: Get Legal Advice

The first thing you must do is to consult a family lawyer about your options and your chances of being granted said rights. A lawyer will be able to inform you of how good your chances are and how strong the case is in your favour. They will also help you gather evidence that might help you with your case.

Step 2: Arrange for Mediation

The next step is to arrange for family dispute resolution. You must meet with the parents or other primary caregivers and aim to come to an agreement about a parenting plan that grants you your rights to your grandchildren. This is known as mediation or conciliation and is done in the presence of a licensed practitioner independent of both parties. Once an agreement is reached, you must apply for a formal Parenting Plan or Consent Order in court to legalise the arrangement.

Step 3: Go to Court

If an agreement cannot be reached and you wish to continue to fight for your rights, your last resort is to go to court. You must bring with you a certificate issued by a licensed family dispute resolution practitioner stating that mediation was attempted, otherwise, you might be awarded penalties. In certain situations, a certificate is not necessary, like where abuse or child endangerment is involved and easily provable. It is advisable to seek legal assistance when you lodge your application in court as they will help you gather evidence and documents in favour of your case and make it easier to win it.

Challenges Faced by Grandparents in Custody Battles

It is easier for grandparents to seek visitation rights than parental responsibility, especially if there is no viable cause to claim that the parents or primary caregivers of the child are unfit for the job. Unless it is clear that the child’s parents are a direct danger to the child or are overwhelmingly unable to provide for them and the grandparents are the next best option, it would be difficult to win a custody battle. This is especially true if the grandparents themselves are not physically, mentally, or financially capable enough to take care of the child.

Resources like Grandparent Child Care Benefit, Family Tax Benefit, Double Orphan Pension, Child Care Tax Rebate, Newborn Upfront Payment and Newborn Supplement, Maternity Immunisation Allowance, Carer Allowance, Healthcare cards, Medicare benefits, Payments through the NSW Department of Communities and Justice (DCJ), Supported Care Allowance, and Child Support are available and accessible to grandparents caring for a child. However, these benefits can only be utilised after the child is placed in their care.

Maatouks Law Group has a long history of successful family law practising and can help you with any kind of custody dispute. Get in touch with us and discuss your needs through our free phone consultation today!

Marriage Annulment in Australia

Fri, 29 Mar 2024 07:14:24 GMT

Marriages can result in divorce. In some cases, they can also be annulled, which means the marriage is considered invalid. Just like divorces and separations, annulments of marriages also need to be done legally, and there is a process in place. In Australia, annulment of a marriage falls under Section 51 of the Family Law Act 1975. Read on to learn more about the details of annulment and the associated processes.

How is Annulment Different from Divorce?

Annulment is not divorce and, hence, cannot be treated like one either. In fact, the annulment of a marriage is not like any form of separation. It is proving that the very marriage is null and void. While a divorce legally marks the dissolution of a marriage, an annulment does not recognise the marriage at all in the first place.

An annulment is referred to, in legal terms, as a Decree of Nullity. Irrespective of whether the wedding was conducted with all the associated ceremonies or not, a marriage can be considered invalid if a valid proof for the same is submitted. Let us probe further and learn more about annulments.

Grounds for a Marriage Annulment

A marriage can be annulled on several grounds, some of which may also be counted as criminal offences.

Bigamy

If either or both parties are already in a legal marriage with other people at the time of getting married, it accounts for bigamy, a criminal offence in Australia. The marriage is therefore found to be invalid and, hence, can be annulled.

Consanguine Marriage

Marriage between closely related, especially blood-related, people is prohibited and, hence, provides a valid ground for annulment. Marriage between siblings (or half-siblings), with an ancestor, or a descendant, and such close relations are voidable.

Incomplete or Bogus Ceremonies

If it is proved that the wedding ceremonies were not carried out according to the stipulations in the Marriage Act, the marriage can be annulled.

Lack of Consent

If it is proved that either or both of the parties did not consent to the marriage and that they were forced or conned into it, or if there was any case of mistaken identity or mental incapability, it is considered a lack of consent from either or both parties, as the case may be, and thus provides grounds for annulment of the marriage.

Below the Marriageable Age

If either or both parties are below the legal age of marriage, the marriage is considered invalid and can be annulled.

What Does Not Qualify as Grounds for Annulment?

There are certain situations that, although not indicative of a happy marriage, will not be valid grounds for annulment. Situations like marriage not being consummated, parties not living together, domestic violence, or any kind of incompatibility are not grounds for annulment. Seek a lawyer’s advice to know if your situation qualifies as possible grounds for annulment or not.

Annulment Applications

The first step to applying for an annulment is to file for a Decree of Nullity. An Initiating Application Form needs to be filled out, and three copies of this form must be submitted along with the Marriage Certificate. Along with them, an affidavit that contains all the details about the ceremony and the reason for the annulment needs to be submitted. The initial filing of the application involves a certain fee, which may be discounted if the applicant is in adverse financial circumstances.

Once the application is filed, the papers must be personally served to the respondent by someone other than the applicant. The papers would include the court pamphlet, an Acknowledgement of Service, and an Affidavit of Service. In case the recipient refuses to accept the annulment application, they must contest it by filing a Response to Initiating Application along with an affidavit supporting their non-acceptance. Before applying for an annulment, get in touch with a lawyer with relevant experience to guide you through the application process.

What Happens After Annulment (Legal Consequences)?

The legal grounds for annulment of a marriage, when presented with proof, come with consequences. As already stated, most of these situations may amount to criminal offences and can result in charges being filed. For example, bigamy is a crime as per Section 94 of the Marriage Act 1961 and can incarcerate a person for up to five years. However, if the spouse of the defendant is presumed dead or has been missing for more than seven years, one may justify the act of marrying someone while still being married to another.

Similarly, forcing a person into marrying someone is considered a criminal offence under Section 270.7A of the Criminal Code Act 1995. If someone is found to have married another person by coercion, they may be punished with seven-year imprisonment or a nine-year aggravated offence if the victim is under 18 years of age. Every reason for annulment may be a crime, and if proved in court, it may also lead to incarceration and other forms of punishment.

Annulment by the Catholic Church

In Australia, an annulment of a marriage needs to be done legally, and any Church-granted annulment is not recognised by the law. Some people seek Church-granted annulments because they wish to marry again in the Church. As per the rules laid down by the Catholic Church, a divorced person cannot marry again as long as the first spouse is alive. Likewise, a single person cannot marry a divorced person either. If a divorced person needs to remarry in a Catholic Church, it can be done only after getting the marriage annulled by the Tribunal. So even if you have been granted an annulment by the Church, you need to follow all the procedures to get your marriage annulled legally, and vice versa.

Speak to an Experienced Family Lawyer about Marriage Annulment in Australia

As is the case with every legal issue, it is advisable and highly recommended that you seek direct guidance and consultation from a legal expert. A lawyer with substantial experience in family law, especially in annulment of marriage, can guide you thoroughly. A lawyer can understand your case and build on it to make it stronger. A family lawyer can help you with the legal process, including the procedures and paperwork. Adequate representation and thorough assistance will make things easier for you when navigating the legal process.

At Maatouks Law Group, we have experienced family lawyers who can help you with all issues related to marriage and family. While we specialise in divorces and separations, we also offer ample consultation on matters related to annulments of marriage. We have a friendly team that can guide you in collecting and collating the evidence that will help prove your marriage null and void. We can also help with getting the right paperwork done and filing the application. Furthermore, we can also serve the papers to the other party on your behalf.

For more information, book a consultation with us today!

Key Changes in Family Law for 2024 in Australia

Fri, 29 Mar 2024 06:16:51 GMT

The dynamic legal landscape in Australia advances according to the times and is bringing substantial changes to the Family Law in 2024.

Here we are going to discuss the changes to the Part VII of The Family Law Act that are to come into effect in May 2024. The major changes are:

Simplifying how the court decides what care arrangements are in the child’s best interests.

This stipulation in the Family Law is related to the care arrangements for the child and focuses on the child’s best interests. While the current regime stipulates around 15 factors for the court to consider, the new regime has only six. Let us take a look at them in detail:

Will The Care Arrangements Ensure The Safety Of The Child, That Is, Will The Child Be Protected From Being Subjected To Or Exposed To Family Violence, Abuse, Neglect, Or Any Other Kind Of Harm?
What Does The Child Feel, Or What Are Their Views About The Care Arrangements?
Are The Emotional, Developmental, Psychological, And Cultural Needs Of The Child Being Met?
Is Every Person Who Holds Parental Responsibility For The Child Capable Of Providing For The Developmental, Psychological, Emotional, And Cultural Needs Of The Child?
Does The Child Have The Benefit Of A Relationship With Their Parents And Other Important Relatives Like Grandparents, And Is It Safe For The Child?
Any Other Factor That May Be Significantly Relevant To The Child’s Situation.

Furthermore, the court also has to consider additional factors like any history of domestic violence involving the person caring for the child (irrespective of whether the person had parental responsibility or not) or any family violence order against any family member of the child. The court also has to consider the child’s ethnic background, like if the child is from an Aboriginal or Torres Strait Islander community, then the court needs to check if the child is given the necessary support, opportunity, and encouragement to:

Connect With The Members Of Their Community, Culture, And Language.
Experience The Extent Of Culture That Is Consistent With Their Age, Level Of Maturity, And Opinions.
Appreciate The Aspects Of The Culture.

These factors can also be considered by the court in the case of a consent order application.

Removing the presumption that parents have equal shared parental responsibility.

The current regime states that parents should have equal shared parental responsibility, but there is also an assumption that equal shared parental responsibility amounts to equal time with children or equal shared care. Under the new regime, the presumption of equal shared care does not apply. Parents are advised to consult one another before making decisions related to the child’s welfare, development, and best interests. As per the new regime, certain decisions, for example, health-related issues, may be made by one parent individually, while in other matters, like education, the parents need to consult one another and come to a mutually agreeable decision. Also, for smaller issues like what the child eats or wears, the parent with whom the child lives can decide individually.

Making it clear that final parenting orders can only be changed if there has been a significant change in circumstances.

As per the new update, any new application to change the final parenting order will be considered only if there has been a considerable change in the circumstances of the child or the parents. This is again ruled in the best interest of the child, so as to avoid frequent exposure of the child to court proceedings.

Clarifying what kinds of communication are allowed during family law proceedings.

The new change clearly states that no information related to the court proceedings or the involved parties may be published on social media. Likewise, no information that could link the parties to the court proceedings may be shared on social media. Private conversations between the party involved and a friend or member of the family are, however, allowed.

Clarifying the role of Independent Children’s Lawyers.

While the old regime stipulates that the Independent Children’s Lawyers can choose to meet the child, the new regime clarifies that it is mandatory for the Independent Children’s Lawyers to meet with the child and give them an opportunity to express their views. In case the child does not want to meet the Independent Children’s Lawyer or if the child is under the age of five, this rule does not apply.

Why Choose a Family Lawyer?

While we have tried to explain the upcoming changes in the framework of parenting orders in simplified terms, there still may be some areas that are too complicated for you to deal with by yourself. A family lawyer can help you navigate the byzantine legal procedures, get your paperwork in order, and communicate effectively with the other party. Effective counselling from an experienced family lawyer can help you decide on your next step.

Maatouks Law Group – Your Perfect Legal Partner in NSW

At Maatouks, we offer a wide range of legal services, and Family Law is one of the important realms that we specialise in. We focus on customer satisfaction and treat every client of ours with courtesy and respect.

For more information, call us today!