Family Law
Dedicated to understanding your situation and helping you find the best path to move forward with your life and family through difficult times.
Finnane Family Law is a friendly and approachable legal service based in Randwick, Sydney. We hold specialist Family Law accreditation and over 23 years of experience in a wide range of Family Law issues. We know the most efficient way to direct your course of action under Australian Law.
We understand that life can be busy and that everyone has different schedules, which is why we offer after-hours appointments on request along with fixed fee initial consultations.
Divorce Proceedings
Since 1975, Australia has been a ‘no-fault’ jurisdiction. The only condition that parties need to satisfy when applying for a divorce is to establish that there is ‘an irretrievable breakdown of marriage established by 12 months of separation.’ Parties may show that they have been ‘separated under one roof.’ The other party does not need to consent to your application for divorce. However, if the marriage lasted less than 2 years, there is a requirement that the parties seek marriage counselling before applying for divorce.
While this legal process can be undertaken as a “litigant in person” there can be lasting impacts if a divorce application is not conducted correctly, particularly if you are in the midst of other family law proceedings.
Reach out and we can advise you on how to reduce the stress this process takes on you in this difficult time.
You should be aware that once a Divorce Order is given effect you have 12 Months to finalise any property settlements between you and your former partner/spouse.
Pre-Action Procedures
In 2021 significant changes to the family law court system occurred. There previously existed two different courts in which to commence family law proceedings, but these were streamlined into the Federal Circuit and Family Court of Australia (FCFCOA). In the FCFCOA, both parties must now engage with the pre-action procedures before formally beginning court proceedings.
In parenting matters, this includes making a genuine attempt to resolve the dispute alongside a Family Dispute Resolution Practitioner. Exceptions to this requirement apply if the court has reasonable grounds to believe that there is family violence or a risk of family violence. Parties have an ongoing duty of disclosure to exchange relevant documents, like criminal records of any party, medical reports about a child or a party, and school reports.
In property matters, parties must make a ‘full and frank disclosure’ of all relevant financial information, including a schedule of their assets, income and liabilities. Parties have an ongoing duty of disclosure that ordinarily includes the exchange of documents from the 3 most recent financial years, relevant to their earnings, interests in property or recent disposals of property, interests in companies, trusts, superannuation and any other financial resources. With the help of their legal representatives, parties must make arrangements to resolve the matter via dispute resolution, and this may take the form of mediation.
Children
When parents separate the best interest of the child is the paramount consideration. The courts will do this by balancing the need for the children to have a positive and meaningful relationship with their parents, against the need to protect the children from harm. The objects of the Family Law Act 1975 with respect to parenting matters are to balance the needs of the children to have meaningful relationships with their parents against the need to protect the children from any family violence or risk of harm. Parenting orders involve decisions about who the children live with, spend time with, communicate with, amongst other factors relevant to the care and welfare of the children.
Parenting post-separation requires additional skills and clear communication between parents and is difficult when tempers are flared or trust is broken.
There are two vehicles for parties to come to an agreement in regard to the care of their children;
- An informal “Parenting Plan” which are non-binding agreements between you and the other parent. They can provide a degree of confidence for individuals when parents are able to communicate and trust each other with the care of the children. In the event of a conflict they can sometimes be relied upon in court proceedings to indicate what each parent thought (at the time) was in the best interests of the child/ren; or
- Formal “Consent Orders” which are orders of the court that are binding on both parents. There can be consequences for parents who breach the terms of those Orders without the consent of the other parent.
If you and the other parent are unable to reach an agreement about the care of your children, we are able to assist you further by advising you about alternative dispute resolution methods or filing an application with the court.
Property
Separation as the result of the breakdown of a relationship is a stressful and upsetting time in our lives. Unpacking and negotiating a property settlement on top of that is overwhelming and fraught with difficulties and should not be undertaken by those without expertise and knowledge in the relevant field. It is necessary to seek legal advice before entering into negotiations with a former partner or spouse as it is likely there are facts in your situation that effect your entitlements or obligations under the Family Law Act. It may be the case that the deal you thought was fair and reasonable is actually to your detriment. Finnane Family Law can advise and assist you in negotiating and/or litigating a property settlement that places you in good stead to move on with the next stage of your life.
Maintenance – While every modern family has their own situations and circumstances, sometimes it is the case that after separation you require financial assistance from our former partner or spouse, as a result of how the relationship was structured. You may have legal entitlements to maintenance from you former partner/spouse and we can advise you about that and the best course of action to gain financial security in the course of your Family Law matter.
The court will follow the 'four step rule' in adjudicating a property settlement.
1. What are the Legal and Equitable Interests of the Parties?
This involves the assessment of all property held by the parties, including assets, liabilities and any other rights to property. This includes shares, trade marks, debts, options and interests in a will.
2. What are the Contributions of the Parties?
The court will assess the ways in which each party contributed to the relationship. This involves financial contributions, non-financial contributions and contributions to the welfare of the family. The court may consider when certain contributions were made, and how important they were to the relationship.
Some people may own property before they enter a relationship. The court may assess that the party who owned that property should receive an adjustment to recognise these initial contributions. However, this is a difficult process to predict without any clear guidelines. The court may consider the value of contributions to the relationship holistically, or in some circumstances, they may adopt an ‘asset by asset’ approach. In terms of initial contributions, the court will consider how much the value of that property has changed over the relationship, the contributions made towards its maintenance and use, in relation to the other contributions made by the parties, in making their assessment.
Property that was received as a gift or inheritance does not automatically receive special treatment. The intention of the donor who provided the gift or inheritance is the mitigating factor that will be considered by the court in a property settlement. Sometimes the donor may specify that the gfit is intended for both parties together. The timing of the gift or inheritance is also relevant. Property received early in the relationship may be treated differently from property received post-separation.
The Family Law Act will assess non-financial contributions as a parent and homemaker in making a property settlement. Oftentimes the person who was the primary homemaker of the relationship took their role at the opportunity cost of their career development. The other party to the relationship may have benefitted in their career from their ex partner assuming the role of homemaker. The Court recognises the importance of parent and home maker contributions in making orders for a property settlement.
In some instances, parties may have wasted the resources of a relationship, through activities like gambling or excessive drinking. The no-fault system of Australian family law means that this conduct may not immediately be relevant, however it may still be considered in respect of the contributions to the asset pool. Generally speaking, there is various, and at times conflicting authority amongst the case law and statute that guides this process, and it is best to speak to a family law specialist if you have concerns in this regard.
3. Should a Party Receive an Adjustment for their Future Needs?
The court will assess the following factors, amongst others, to determine whether a party may require a percentage figure adjustment of the total asset pool to account for their future needs
- The age, state and health of the parties
- The income, property and financial resources of the parties, and their capacity to be employed
- Whether the parties care for a child of the marriage under the age of 18
- Commitments of each of the parties that are necessary to enable the party to support themselves and a child or other person they have a duty to care for
- The responsibilities of each party to support any other people
- The eligibility of each party for a pension, allowance or superannuation fund benefit
- A standard of living that is reasonable for the parties in all the circumstances
- Any spousal maintenance that is being paid to the other party
4. Are the Orders Just and Equitable?
This is a very subjective test and a crucial step in the process of attaining the property settlement. The requirement that any orders are ‘just and equitable’ permeates the entire process of determining property orders. Property orders may not even be made if it is not just and equitable to do so.
Child Support
Child Support is operated by Services Australia in the administration of the Child Support Assessment Act 1989. While this scheme is administered by the Australian Government, parents are able to depart from the administrative assessment and enter into a private arrangement for the parent who is the primary caregiver to receive payments from the other parent. We can advise you on what method is likely to best suit your circumstances and assist you in negotiating a private agreement if it is advantageous to you.
Domestic Violence & AVO’s
The Family Law Act has a broad definition of Family Violence and that definition is not limited to physical violence. Relationships can breakdown as a result of family violence or family violence may begin as a result of a relationship breaking down. Either way, it is unacceptable. We can advise you on options available for your protection including making an application for an Apprehended Domestic Violence Order or assist you in defending one. We can also direct to the relevant counselling services that may assist you and your mental health if you have experienced or are experiencing Family Violence.
If you or someone you know is in immediate danger as a result of Family Violence please contact emergency services immediately.