Family Law & De Facto Relationships

PROPERTY MATTERS WHERE PARTY’S AGREE
 
It is important to be aware that informal agreements and arrangements are not recognised under Family Law as being valid. This means that they are not enforceable and have no force or effect in the eyes of the law.

There are two ways to resolve financial matters in accordance with the law where the parties agree.

1) Consent Orders

Consent orders are in the form of a document signed by both parties setting out the party’s agreement. This document is lodged with the Family Court with an Application to approve the orders, also to be signed by both parties. The application requires each party to comprehensively state their income, assets, liabilities and other financial resources.  

The Court will consider the orders that are sought and they will usually be approved, stamped and issued within four weeks of filing. The Court may raise questions about any part of the settlement, particularly if the Court considers that the settlement may be unfair.

2) Binding Financial Agreements

A Binding Financial Agreement is an agreement, complying with the requirements of the Family Law Act.  The agreement must set out certain information, and has to be signed by solicitors independent of the other party. It is necessary for both parties to the agreement to receive independent legal advice and the agreement needs to have as an attachment a certificate from each solicitor who has been independently instructed. Problems can arise as to whether an agreement is binding unless the requirements of the Family Law Act are strictly complied with.  

Strict time limits and early advice   

If you have Family Law issues you should contact us and obtain legal advice as soon as possible. Delay can lead to your rights lapsing. It also complicates the potential outcomes.


If you have reached an agreement, then it is important to have the agreement properly prepared either by way of Consent Orders or a Binding Financial Agreement.  Often circumstances arise where people thought they had an agreement but such an agreement turns out to be unenforceable.  Family Law situations are generally stressful and can often involve pressure from one side. Early advice can save time, money and stress.


PROCEEDING TO COURT

How the Court Determines Property Settlement

The Family Law Act sets out the Family Courts powers in making orders. These powers are far reaching and often change the interest of a party in relation to property. The Court will not make an order for property settlement, unless in all circumstances the order is just and equitable.

An outline of the Court Process in determining property matters

Firstly, all the current property of the relationship must be identified.  This includes jointly owned property and separately owned property. It also includes assets held in Trusts, Partnerships, Companies and other property held directly or indirectly by a party. Each party’s superannuation is also included.

After determining the property pool the values must be ascertained.  This is determined by way of agreement between the parties or by obtaining independent expert evidence as to the values.

The Court will then assess the contributions of each party to the acquisition, conservation and improvements of the assets. The Court must take into account each party’s:

  • direct financial contributions;    
  • indirect financial contributions;  
  • direct non financial contributions; and
  • indirect non financial contributions

The Court also takes into account the contributions made by the party’s in the capacity of homemaker or parent.   

The Court often finds that each party’s contributions has been equal however it is important to point out that there is no assumption in this regard. Each case is different.

Finally, the Court looks at certain particular matters that are set out in the Family Law Act. This gives the Court a wide range of discretion in deciding what to take into account and what adjustments to make. Issues such as the age and state of health of the party’s, the ability to earn future income, responsibilities to support other persons and who has care of the children are often considered.

This allows the court to deal with property so as to apply justice and achieve equitable outcomes considering the overall issues in the particular case.

CHILDRENS ISSUES

Parenting Plans

A Parenting Plan is simply a written document which is signed and dated by the parents of a child. A Parenting Plan can deal with various issuers regarding the children. Often these will include:-
 

  • With which parent will a child live;
  • What time is to be spent with the other parent;
  • Each parents responsibilities for the child;
  • How parents will consult with each other about decisions made in relation to the child;
  • Financial support for the children; and any
  • other relevant matter;


A Parenting Plan is one option which can be adopted by separating parents in relation to their children.

At Evans & Wislang we are able to discuss with you the specifics of a Parenting Plan and advise you having regard to your particular circumstances.

The overriding consideration for developing a Parenting Plan remains what is in the best interest of the child.

You can consider whether the children spending equal time with each parent is in the children’s best interest or alternatively, for example if the parents will be living some distance apart, whether another arrangement such as one party having access on a fortnightly basis is more appropriate. In this regard, the practicality of the circumstances is also relevant.

Parenting Plans are not always appropriate and are only one of a number of options in relation to formalising arrangements for children after separation. We will advise you specifically whether a parenting plan is appropriate in your case.

Children Matters - proceeding to Court

The Family Law Act provides that there is a presumption of equal shared parental responsibility. This presumption can be displaced, for example, in instances of family violence or child abuse.
 
The presumption means that the Court must consider an order where the children spend equal time with each parent or an order where the children spend significant or substantial time with each parent.  

When dealing with child matters the factors the court will consider include:

  • ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child;  
  • protecting children from physical or psychological harm or being exposed to abuse, neglect or family violence;
  •  that children should receive adequate and proper parenting to help them achieve their full potential;  
  • that parents should fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children;
  • that the children have a right to know and be cared for by both their parents;
  • that children should 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);
  • where possible parents jointly sharing duties and responsibilities concerning the care, welfare and development of their children;
  • that parents should agree about the future parenting of their children; and
  • that children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

The Court will also take into account other things necessary to achieve a just and fair outcome for each interested party taking into account all of the particular circumstances.

Evans and Wislang can assist you and provide you with guidance throughout an often complicated and stressful time.

 

Testimonials

"To Whom it may concern,

Without any hesitation I recommend Toni Wislang, Robin Evans and their team at Evans and Wislang to take care of all of your conveyancing and legal needs.

With 10 years’ experience in Real Estate I know it is imperative that a quality conveyancer is acting for both the vendor and purchaser of a property. Having Toni manage sales and purchases ensures that the job is done properly, efficiently and with the highest degree of customer service. Every mutual client of mine and Evans and Wislang is always very satisfied and impressed with their experience, and thankful for the recommendation.

It is because of my previous clients experiences with Toni that I chose to use her services when I bought and then sold my own home. It was a very stressful time for me and a somewhat complicated sale due to a family law matter, however Toni ensured things went through smoothly and efficiently. Without Toni on the job, I am not sure if the sale would have proceeded, and I am sure that my experience would have been a lot more stressful.

Toni, Robin and their team always act with the upmost integrity and professionalism, whilst still having great compassion and patience for their clients.

I will always be grateful for not only how I have been looked after with my conveyacing and family law matters, but also with how my clients are taken care of.

Yours sincerely,
Mary Sparkes"

CONTACT EVANS & WISLANG
Contact us via email
Phone: (02) 4952-5344
 
CLICK HERE to subscribe to our newsletter.

 
Testimonials
 
To Whom it may concern,
 
Without any hesitation I recommend Toni Wislang, Robin Evans and their team at Evans and Wislang to take care of all of your conveyancing and legal needs.
 
With 10 years’ experience in Real Estate I know it is imperative that a quality conveyancer is acting for both the vendor and purchaser of a property. Having Toni manage sales and purchases ensures that the job is done properly, efficiently and with the highest degree of customer service. Every mutual client of mine and Evans and Wislang is always very satisfied and impressed with their experience, and thankful for the recommendation.
 
It is because of my previous clients experiences with Toni that I chose to use her services when I bought and then sold my own home. It was a very stressful time for me and a somewhat complicated sale due to a family law matter, however Toni ensured things went through smoothly and efficiently. Without Toni on the job, I am not sure if the sale would have proceeded, and I am sure that my experience would have been a lot more stressful.
 
Toni, Robin and their team always act with the utmost integrity and professionalism, whilst still having great compassion and patience for their clients.
 
I will always be grateful for not only how I have been looked after with my conveyancing and family law matters, but also with how my clients are taken care of.
 
Yours sincerely,
Mary Sparkes