Worrall-Logosplash

FAMILY LAW


About Family Law

Worrall Lawyers has for many years prepared and advised about Family Law “financial agreements”, including “pre-nuptial agreements”, for our clients, and for children of our clients.

Our practice includes a full range of Family Law services, with a focus on high value and complex Property disputes and Financial Agreements.

Senior Associate Trevor McKenna, a Family lawyer with more than eight years experience in the field leads our Family Law practice area with Sam McCullough.

Property Disputes

Following the breakdown of a marriage or de facto relationship, it will usually be necessary for parties to that relationship to bring their financial relationship to an end.

Doing so often involves a process of dividing property, superannuation, financial resources and liabilities.  It may also include other matters including the maintenance of one of the parties, and the maintenance of children.

Under the Family Law Act 1975 (Cth), the term “property” has a very broad meaning.

The Full Court of the Family Court in the decision of Duff and Duff (1977) FLC 90-217 said it was unnecessary to spell out what “property” might include, other than to say that “property” means property both real and personal, and includes choses in action (an intangible such as a promise to repay money; or company shares).

Common examples of property include, but are not limited to, the following

  • a house or land
  • motor vehicles, boats and caravans
  • bank accounts, cash and investments
  • personal effects and collectables including jewellery, antiques, wine and art collections
  • shares
  • money owing to either or both parties of a relationship
  • inheritances
  • gifts and Windfalls including lotto wins
  • compensation, redundancy payouts and damages awards
  • long service leave and similar entitlements
  • interests in companies, partnerships, trusts including, for example, unit and family trusts

“Property” also includes superannuation and also includes liabilities including, for example, mortgages and credit card debts.

The term “financial resource” is not defined in the Family Law Act 1975 (Cth) but financial resources must be considered in a property settlement.  A financial resource may, at first glance, have the appearance of property, but on closer inspection, cannot be considered as “property”.   Financial resources arise in limited circumstances and might include, for example, an expectation of an inheritance.

Services offered by Worrall Lawyers

  • advice about the requirements and process for obtaining Family Law property orders
  • specialist knowledge and expertise where the relationship involved high net wealth, trusts or companies, and family farms
  • advice about whether and what type and amount of property orders may be available to a party after separation
  • negotiation and mediation of disputes about property
  • drafting applications for the declaration of property interest, or for the adjustment of property interests
  • drafting affidavits and other documents in support of an application for the declaration of property interests, or for the adjustment of property interests
  •  advice and representation at the hearing of an application for the declaration of property interests, of for the adjustment of property interests, and at Court events during the process
  • advice about relevant time limits for claims relating to property
  • parenting disputes, spousal maintenance and all other aspects of family law
  • commercial and property law services required following the ending of a relationship

Spousal and De Facto Partner Maintenance

Spousal or De Facto Partner Maintenance (“spousal maintenance”) refers to a form of financial support that a person is required to provide to their former spouse or partner.   It may arise where one party is unable to adequately support themselves without their former partner providing them with financial support.  The purpose of spousal maintenance is to adjust for a difference in income between the parties where certain requirements are met.

You can find detailed information about spousal maintenance here.

Services offered by Worrall Lawyers

  • advice about the requirements and process for obtaining spousal maintenance
  • advice about whether and what type and amount of spousal maintenance
  • negotiation and mediation of disputes about spousal maintenance
  • drafting applications for spousal maintenance
  • drafting affidavits and other documents in support of an application for spousal maintenance
  • advice and representation at the hearing of an application for spousal  maintenance
  • advice about relevant time limits for spousal maintenance
  • property settlements, parenting disputes, spousal maintenance and all other aspects of family law
  • commercial and property law services required following the ending of a relationship

Family Law Financial Agreements

In all states and territories except Western Australia, de facto and matrimonial or married couples can enter into Financial Agreements under the Family Law Act 1975 (Cth) (“the Act”).

Financial Agreements can be entered into at different stages of a marriage or relationship.   For married couples, this includes before they are married, during their marriage, after separation, and after divorce.    For de facto couples, agreements can be made before their relationship becomes a “de facto” relationship, during their relationship, or after their relationship ends.

Provided a Financial Agreement is binding, it will have the effect of ousting the jurisdiction of a Court exercising jurisdiction in relation to financial matters (alteration of property interests, maintenance and maintenance agreements) and financial resources to which a Financial Agreement applies.

Financial Agreements entered into prior to or during a marriage but prior to separation, can cover any of the following matters

  • how in the event of the breakdown of the marriage all or any of the property or financial resources of either or both of the parties at the time when the agreement is made, or at a later time, is to be dealt with
  • the maintenance of either party during the marriage or after divorce or both during the marriage and after the divorce

Financial Agreements can also deal with the following

  • matters incidental or ancillary to property, financial resources or spousal maintenance
  • in the case of matrimonial agreements “other matters” which might include Child Support
  • child maintenance for children not captured by the Child Support (Assessment) Act 1987 (Cth)

For a Financial Agreement to be binding, it must comply with the legislative requirements, which are

  • the agreement must be in writing and signed by the parties
  • the agreement must specify what section it is made under
  • the agreement must be between parties falling into one form of agreement type referred to above
  • the agreement must deal with the matters identified above and may include incidental, ancillary or other matters
  • the agreement must not cover matters dealt with in a previous/earlier agreement
  • the parties must have each received independent legal advice prior to signing the agreement
  • the agreement must not have been set aside

A further requirement is a separation declaration.   Certain parts of a Financial Agreement will have no force or effect until at least one party signs a separation declaration.

A Financial Agreement that is otherwise binding can be set aside by a Court in limited circumstances.

Services offered by Worrall Lawyers

  • advising about whether a Financial Agreement would be available and appropriate
  • drafting an advising about Financial Agreements
  • asset protection using Financial Agreements
  • advice to parents wishing to protect future inheritances of their children from family law disputes

Divorce

Divorce is the official ending of a marriage. It involves a Court application and process, and rules apply to whether or not a divorce will be granted in particular circumstances.   Divorce can have important legal consequences.

You can find detailed information about divorce here.

Services offered by Worrall Lawyers

  • advice about the requirements and process for obtaining a divorce
  • advice about whether divorce is available in special circumstances, including: separation under the one roof; minor children of the marriage; short marriages; where there has been a period(s) of reconciliation; and opposed applications
  • drafting applications for divorce
  • drafting affidavits and other documents in support of an application for divorce
  • arranging for the completion and execution of a joint application for divorce
  • serving documents on the other party to an application for divorce
  • advice and representation at the hearing of an application for divorce
  • advice about relevant time limits for property settlement and/or spousal maintenance
  • change of name applications
  • registering the existence and ending of de facto relationships
  • registering the existence and ending of caring relationships
  • advising about the effect of separation and/or divorce on a Will and related Estate Planning arrangements of a party to a marriage that has broken down
  • updating the Will and related Estate Planning arrangements of a party to a marriage or a de facto relationship that has broken down
  • property settlements, parenting disputes, spousal maintenance and all other aspects of family law
  • commercial and property law services required following the ending of a relationship

Parenting Disputes

When a couple with minor children separate, the proper living arrangements for those children are likely to be an important issue to be resolved. We can assist with negotiation and (where necessary) Court action to facilitate those arrangements.

The objects underlying the parts of the Family Law Act 1975 (Cth) relating to children and parenting matters is to ensure the best interests of children are met by

  • ensuring that children have the benefit of both of their parents having meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child
  • protecting children from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence
  • ensuring that children receive adequate and proper parenting to help them achieve their full potential
  • ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children

In family law the kinds of parenting or children related matters that generally arise can perhaps be best understood having regards to the types of orders that can be made in relation to children under the Family Law Act 1975 (Cth). Section 64B of the Family Law Act states that a parenting order may deal with one or more of the following

  • the person or persons with whom a child is to live
  • the time a child is to spend with another person or other persons (e.g., parents and grandparents)
  • the allocation of parental responsibility for a child
  • if two or more persons are to share parental responsibility for a child the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility
  • the communication a child is to have with another person or other persons
  • the financial maintenance of a child
  • the process to be used for resolving disputes about the terms or operation of the order
  • any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child
  • the steps to be taken before an application is made to a Court for a variation of the order to take account of the changing needs or circumstances of
      • a child to whom the order relates
      • the parties to the proceedings in which the order is made

Parenting orders can be applied for by a number of people, including

  • a child’s parent
  • the child
  • a grandparent of the Child
  • any other person who is concerned with the care, welfare or development of a Child

Parents who reach agreement about parenting matters can document their agreement in the form of a Parenting Plan. If there are any parenting orders that may be in place, those parenting orders are generally subject to later parenting plans.

Services offered by Worrall Lawyers

  • advice about the requirements and process for obtaining parenting orders
  • advice about whether and what type of parenting orders may be available
  • negotiation and mediation of disputes about parenting
  • drafting applications for parenting orders
  • applications to vary existing parenting orders
  • relocation applications (and representations to oppose those applications)
  • parenting plans
  • drafting affidavits and other documents in support of an application for parenting orders
  • advice and representation at the hearing of an application for parenting orders, and at Court events during the process
  • property settlements, spousal maintenance and all other aspects of family law.
  • commercial and property law services required following the ending of a relationship

Child Support

Child support is a complex area dealing with the financial support of children under the age of 18 years.   Generally, child maintenance relates to the financial support of adult children (i.e., children over the age of 18 years).   In limited circumstances,  child maintenance relates to children under the age of 18 who are not captured by the Child Support (Assessment) Act 1989 (Cth).

Child support is perhaps best understood in the context of a system designed to ensure that children receive a proper level of financial support from their separated parents.   The child support system is administered by the Commonwealth Government of Australia through the Department of Human Services (Child Support).

Child support generally refers to the form of financial support for a child that is determined by the Department of Human Services (Child Support) according to a child support formula.

The level of child support a parent is assessed to pay is determined according to the child support formula and depends on a number of factors including but not limited to

  • the income of each parent
  • the amount it costs to support each parent
  • the percentage of care each parent has in relation to a child
  • the costs of raising children

Child support in Tasmania and throughout Australia is covered by a number of laws including

  • Child Support (Assessment) Act 1989 (Cth)
  • Child Support (Registration and Collection) Act 1988 (Cth)
  • Child Support (Registration and Collection) Regulations 1988 (Cth)

Related legislation includes the Family Law Act 1975 (Cth) as well as legislation concerning Family Assistance including A New Tax System (Family Assistance) Act 1999 (Cth) and A New Tax System (Family Assistance) (Administration) Act 1999 (Cth).

The people who can apply for child support are defined under the relevant legislation as ‘eligible carers’.   Eligible carers include parents and ‘non-parent carers’ of a child.

In the case of parents, either parent can apply for an administrative assessment of child support for a child regardless of the amount of care they provide for the child in question.   As a general rule, parents can only apply for an administrative assessment if they are not living together as a couple.

As a general rule, a parent or non-parent carer, may apply for a child support assessment for a child only if the child is

  • an ‘eligible child’
  • is under the age of 18
  • is not legally married or  living with another person as their partner on a genuine domestic or a person whose relationship with another person  in a relationship registered under a prescribed State or Territory law and who is not living separately and apart from the other person on a permanent basis
  • satisfies certain ‘residence’ requirements

Eligible carers such as parents may wish to enter into their own arrangements about the ongoing financial support of their child or children.   There are two types of child support agreement to record and document such arrangements

  • Limited Child Support Agreement
  • Binding Child Support Agreement

In some circumstances it may be possible to apply to a Court including, for example, the Federal Circuit Court of Australia in relation to child support including

  • for a declaration that a person should or should not be assessed to pay child support including applications in relation to parentage
  • an order for the recovery of child support paid
  • to set aside a Child Support Agreement
  • for an order for child support to be paid in a form other than periodic amounts or a lump sum
  • a Change of Assessment (a Departure Application)

This is How Worrall Lawyers can Help You with Your Family Law matter

Services offered by Worrall Lawyers in this area include those outlined above.

Worrall Lawyers has highly trained lawyers with expertise and experience in this area of the law.   You can review their profiles here to choose who would be most suitable for you and your family.

Make an enquiry or arrange an appointment with us here, to benefit as our client from our expert advice and solutions available to you in this area.

What Worrall Lawyers’ Publications are Available About Family Law?

Readers are encouraged to save this material for their future reference, or to share it by email or other means with friends or family who may have an interest or need for our expert advice and solutions in relation to this legal issue.

If you are interested in learning more, publications written or contributed to by members of Worrall Lawyers about this area of the law can be accessed here.   You can access (or, for some materials, purchase) case reviews, newsletters, articles, professional papers, and details about books and professional development material that our lawyers have written or contributed to.

We encourage you to share in our expertise.

Family Law News & Publications

No posts found.