FAQ

A Financial Agreement is often referred to as a Binding Financial Agreement or BFA.  A Binding Financial Agreement is used for the division of property commonly in 2 situations – before marriage where the Binding Financial Agreement is referred to commonly as a ‘pre-nup’ or pre-nuptial agreement and after a relationship has broken down. The agreement does not have to be sanctioned by the court. It does not have to be just and equitable and can favour one party over the other. Provided that the agreement is entered into freely, both parties provide full disclosure of their financial circumstances, and they both have the benefit of independent legal advice, aBinding Financial Agreement is binding and enforceable. This area of Family Law is complex and can be very expensive because of the detailed nature of such agreements that is necessary. We don’t recommend a Binding Financial Agreement for simple property division because of the complexities and costs involved. If you are considering a Binding Financial Agreement , you will need expert advice on the intricate nature of such an arrangement.  Our firm offers this expertise and can assist you to make the decision on whether a Binding Financial Agreement is the right solution for you.

You cannot file a divorce application until you have been separated for 1 year.  If your marriage is all too brief, that is less than 2 years, you must seek leave  leave of the court unless a certificate is filed at the same time to the effect that you and your spouse  have considered reconciliation with an approved family counsellor and the counsellor has signed a certificate to that effect.

Yes. This is called “Separation under one roof”. The court will usually require one or both parties to file an affidavit confirming and proving the change in the relationship and the circumstances of separation. It can be an uncomfortable situation for both, depending on the nature of the relationship.

Only in very rare circumstances. It is difficult to oppose an application to divorce after the parties have been separated for one year. One of the only ways to successfully oppose an application is if the proceedings are brought in the wrong the jurisdiction or to challenge the separation period, for example where there have been periods of reconciliation for more than 3 months.

It is best to try and reach a settlement by consent. If that is not possible, in the case of the divorce, an application must be made to the court within one year of the divorce order, otherwise leave of the court is required. The time limits differ for de facto relationships.  The time limit for making an application to the court is within two years of the date of separation. It is not possible for the parties to consent to extending the deadline. The court will only grant leave in exceptional and rare circumstances, to extend the deadline and on the ground of hardship. Almost inevitably such applications are refused.

A de facto relationship is defined in Section 44 Family Law Act1975 as a relationship between two people who are not married, and may be of the same sex, who live together on a genuine domestic basis.

The court adopts a 4 step process for determining a property settlement:-

1. Determine the assets and liabilities.
2. Determine the contributions by each party which should include financial and non-financial contributions.
3. Determine the relevant factors that apply to each party for example, the ages and state of health of each party, their resources and employment capacity.

Consider whether the proposed order is just and equitable.

Not in usual circumstances. Most new child support applications are now dealt with by the Child Support Agency.

The court retains jurisdiction in relation to applications for step children and for children who are over 18. A court application for children who are over 18 is made when the payments are required to either:

• enable them to complete their education; or
• they have a physical or mental disability

Yes. In some situations it is possible to obtain spousal maintenance; where there is a need by the one spouse and surplus in income of the other, that is, a capacity to pay. Spousal maintenance is often for a limited period, commonly 2 to 3 years, to enable the receiving spouse to ‘get on their feet’.

Ahh custody. One hears it frequently in the media, even from the lips of high ranking politicians but thankfully the term “custody” was abolished with the amendments to theFamily Law Act 1975 which came into force in 1996. We do not own our children and the amendments to the Act replaced this concept, which was seen as treating children as possessions to be distributed, along with its terms of Guardianship and Access again partly because of the possessory nature of the terms.  These terms are quite often used in the media along with terms such as ‘visitation’ and “access” were replaced in part with that of Parental Responsibility which gives a parent or carer of a child or children certain duties and responsibilities such as those in relation to education religion and medical matters. If parents wish to regularise their position in respect of their children they may apply to the court for a Parenting Order.  The primary carer of a child is just that, the primary carer of the child.

A parenting order is an order, made either by consent or following legal argument, which determines issues in relation to a child or children. It sets out the parent’s duties and obligations in relation to the children such as where a child is to live or how much time they spend with a parent, or any other issues affecting the child or children.  Parenting Orders will often allocate Parental Responsibility with equal shared parental responsibility being the most prevalent.

A parent, grandparent or any other person who has an interest in the welfare of a child. In circumstances where a parenting order is sought by a non-parent, the parents must be included in any application to the Court.

You must attend Family Dispute Resolution [FRD] and make a genuine effort to resolve the dispute. If you failed to reach agreement within that forum you will be issued with a certificate [a Section 60I certificate] which will enable you to make an application to the court.

Yes. An application can be made to the court if by consent.

A party is exempt from attending FRD if there has been abuse or family violence or if the application is urgent. There are some other exemptions also, such as difficulty to attend as a result of distance.

Parental responsibility encompasses all the rights duties and responsibilities a parent has towards their child/children or property belonging to them. Both parents are legally responsible for a child until and unless a Parenting Order is made or they enter into a Parenting Plan, either of which allocates parental responsibility.

In the absence of a court order, both parents to a child or children have automatic parental responsibility and are jointly responsible for their children until they attain 18 years old.

When making a parenting order, unless there are reasonable grounds to believe that a parent of the child has engaged in family violence or abuse of the child, the court must apply the presumption that it is in the best interests of the child for his or her parents to have equal shared parental responsibility for them.

No. Where two or more persons share parental responsibility for a child they are required to make any decisions relating to the child jointly. That is they must consult with each other and together make the decisions.

Where parental responsibility is not shared, any person who has parental responsibility may make decisions in respect of them, and alone.

A Parenting Plan is a formal agreement between parents dealing with the arrangements for their children.  It will often include where the child or children are to live and how much time they spend with the other parent. Parenting Plans will often allocate parental responsibility.  Parenting Plans are not enforceable.

A family consultant is a person appointed by the Court who specialises in matters relating to the care and welfare of children, that is they are specialists in child and family matters. Their function is to help and advise people in family law cases and to assist the court. A family consultant can be asked to prepare and write a report for use in court proceeding. They may speak to the parties and even interview the child or children. Anything stated to the family consultant is not confidential and may be used in evidence.

This is dealt with by Section 4AB of the Family Law Act 1975.  Family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful.  There is also State based legislation relating to such abuse, commonly referred to as Domestic Violence.  THe description of abuse differs slightly in the State legislation but its aim is the same – to protect families from violence within the home.  If you have concerns you may be a victim of family violence, contact our office to discuss your concerns or call the Cairns Regional Domestic Violence Service on 07) 4033 6100

Yes. If permission is not given it is very unwise to resort to ‘self-help’ and move regardless.  An application should be made to the court. When determining an application the welfare or best interests of the child or children is the paramount consideration. It will be necessary for the court to evaluate each of the proposals made by the parties and reach a conclusion based on the child or children’s best interests.

An application can be made to the court for an order that the child be placed on the watch list which is managed by the Australian Federal police. The child will remain on the watch list until a further court order.  This is known as PACE or Child Alert. In addition to these provisions Section 67ZD of the Family Law Act 1975 allows a court to order that a person deliver up the child’s passport if there is a possibility or threat that a child may be removed from Australia.  In circumstances where you believe genuinely that the risk is imminent, an urgent application should be made to the Court.  If you are facing such a situation, our solicitors can help you with prompt practical advice.

Where an Order has been in place for more than 12 months, if appropriate, the court may vary or alter a parenting order where there has been a change in circumstances. This is known as the Rice and Asplund rule.  The parent seeking a change in the orders will need to demonstrate a significant change in circumstances.

Office to represent the best interests of children in a parenting dispute.  The ICL does not act in the traditional role of solicitor/client but acts more in the role of an independent person investigating the best interests of the child.  The ICL is seen as ‘an honest broker’ between the parents and tries to assist the parents to resolve issues by making recommendations to the Court.  He or she is a family lawyer who has trained in this area.