May 19, 2022 | Family Law
The breakdown of a relationship or marriage can be emotionally daunting, especially when children are involved. It is not uncommon for parents to be confused when determining child support. According to the Child Support (Assessment) Act 1989 (Cth), parents have a duty to maintain their children in the form of child support payments.
What is Child Support?
Child support is a term used to describe the payment of money from one parent to the other for the purpose of helping that parent raise children who are under 18 years of age. Child support is designed to help cover the expenses involved with raising children, such as food, clothing, medical costs, housing, school costs and costs related to other activities. All children in Australia involved in family separations, whether or not the parents were married to each other, are eligible for child support payments.
How is Child Support Calculated?
The Department of Human Services is an Australian Government Agency who have authority to determine child support matters. They are required to follow steps to calculate the amount of child support payable. In calculating how much child support is to be paid, there are various factors which are generally taken into account:
- The age of the child
- The income of both parents
- The amount of time that the child spends with each parent
- The level of care that each parent provides
- Costs of raising the child based on independent research
You can use the Department of Human Services’ calculator to estimate child support payments here.
What If the Calculation is Unfair?
There may be circumstances where you may believe that the child support payments assessed are unfair to you. This can occur in situations where one parent has arranged to minimise their taxable income, lost their job since an assessment was made, or a child has special needs.
In these circumstances, you may apply to the Child Support Agency to change the assessment. The Department of Human Services will consider the unique circumstances before amending any calculations.
What If the Other Parent Doesn’t Pay?
The Child Support Agency has the power to recover unpaid child support. They can do this through:
- Income payment deductions
- Enforcing tax return lodgement or intercepting tax refunds
- Working with third parties
- Employer or bank account deductions
- Issuing overseas travel bans
- Litigation
- Prosecution
Can I Organise Child Support Myself?
It is possible for parents to organise and manage child support themselves. This can happen when parents reach an agreement and mutually decide upon the amount of child support they will pay to the other parent. This can involve making cash payments to one another or meeting payments of expected expenses directly. This arrangement can be entered into by way of a binding child support agreement, which is subsequently lodged with the Department of Human Services.
Contact Us
If you would like to discuss your family law matter with a legal professional please contact us on (02) 9963 9800 or via our contact form.
May 18, 2022 | Family Law
In Australia, both marriages and de facto relationships are recognised by law, therefore when couples split, there are legal considerations which must be dealt with before leaving your relationship.
1. Gather important documents and protect your information
Before leaving the family or matrimonial home gather documents like your will, passport and birth certificate. If there are children involved and you are a primary carer, consider the birth certificates and passports for your children too.
It is important to note that a separation will not change your will. If you fail to amend your will, your former partner could benefit as a result of this. They may also have a level of control over your finances or medical decisions unless you modify this in your will.
For an effective property settlement which is fair and reflective of your financial position, you should also gather any relevant financial documents including bank account statements, tax returns, pay slips and superannuation statements. This information can be subpoenaed if necessary, or requested directly from the institution, however, full and frank disclosure of your financial position is required if matters proceed to court, and having the information readily accessible will save you time and money.
Protect your privacy and security by changing your banking, email, social media, your Apple ID and passwords for your phone. It is also important to change any PINs for your ATM cards. If your partner or spouse is emotional or vengeful, them having access to your sensitive information could be an issue for you.
2. Plan for children
Parties should aim to reach an amicable agreement about how children will be looked after and the time each parent will spend with them. A mediation with Relationships Australia is a valuable resource that may help you make plans for children that are in their best interests. If you are unable to agree on arrangements for children, you may need to file an application with the court for parenting orders. If the parties have reached an agreement, it should be written down and provided to a lawyer so that a Parenting Plan or Consent Orders can be drafted.
3. Access to funds
Consider whether it is appropriate to limit your partner’s access to joint funds by obtaining a joint authority or closing your account and splitting the balance. The bank could freeze the account and this may be disruptive for both parties. We recommend keeping a separate bank account and considering freezing a joint credit card if necessary.
4. Sort out the bills
If you are leaving the family home or business, you should contact creditors and let them know in writing that you are not responsible for future liabilities.
If you are the primary income earner and your partner cannot afford these costs, you may be required to pay them anyway. We recommend that you do this to avoid the other party applying to the court on an urgent basis for spouse maintenance. Attending court is costly and should be avoided unless necessary.
5. Consider third party involvement
Before leaving a relationship, consider discussing your issues with a third party who is valued by both partners. Involving a third party, such as through a mediation, can help to avoid emotions clouding your better judgement and may assist you to reach resolutions that are in both parties best interests.
Contact Us
There are many legal considerations that arise following a relationship breakdown. If you are considering leaving your relationship and need more information, or if someone you know needs help, please contact Etheringtons Solicitors to speak to one of our experienced solicitors on (02) 9963 9800 or contact us here.
May 17, 2022 | Family Law
Family Law matters can be an emotionally daunting and a challenging experience for all parties involved. For this reason, it is extremely important that you choose a family law solicitor who will be able to provide you with valuable legal advice and assistance during this difficult time.
Here are 3 key tips which will assist you to choose the right family law solicitor for your case.
1. Qualifications and Experience
When choosing a family law solicitor, you should always consider whether they have the relevant legal qualifications, experience and skills to handle your matter.
However, you should be mindful that just because a solicitor is more experienced does not necessarily mean that they will be better suited to handle your matter. A solicitor who has only been practising for a few years may be better suited to handle your matter if it involves less complicated legal issues as they will charge a lower rate than more experienced solicitors, and thus you will save yourself money in the long run. On the other hand, a more experienced solicitor may be necessary for matters that are more complex.
2. Communication and Personal Compatibility
When choosing a family law solicitor, you should consider whether you feel that you can effectively communicate with your solicitor. Whist it sounds quite basic and obvious, ensuring that a solicitor understands your story and instructions is of the utmost importance in any legal matter, especially in family law, where situations may be emotionally daunting and challenging. You should always feel comfortable enough to speak openly with your solicitor, without feeling judged or like you are a hassle to them. Some solicitors may also prefer face-to-face, telephone or email communication, so you would need to determine which method of communication works best for you.
3. Cost
When choosing a family law solicitor, you should consider their cost. While this relates to the level of experience of your solicitor, as discussed above, this is an important consideration within itself. Solicitors will charge based on their hourly rate. Whilst there may be unforeseen circumstances in your case resulting in unexpected additional work, your solicitor should still be able to provide you with a rough estimate as to what you can expect to spend throughout the various stages of your matter.
However, you should be mindful that basing your choice on cost is not an effective way to find the most suitable family law solicitor for you. A solicitor which charges a higher hourly rate may be more efficient, taking less time and therefore less money in the long run. On the other hand, a less expensive solicitor may have a lower hourly rate because they are not as high in demand, but this may not necessarily reflect their level of experience, professionalism or dedication.
At Etheringtons, we try to ensure that our clients have an idea of costs throughout their matter, and we find that if there are no surprises when it comes to our bill, both our clients and us walk away happier at the end of a matter.
Contact Us
The list above provides you with a starting point in your search for the best family law solicitor for you. You should speak with a potential solicitor over the phone and meet with them face to face, if you can, before determining whether they should handle your matter. If you would like to discuss your family law matter with a legal professional please contact us on (02) 9963 9800 or via our contact page.
May 16, 2022 | Family Law
The term ‘best interests of the child’ is a common phrase used in family law legislation. Its meaning and interpretation is frequently discussed in case law involving parenting disputes. In this blog, we will review this cornerstone principle of the family law courts, and discuss factors a court will take into account when deciding what course of action is indeed in the best interests of the child.
Origin
The term ‘best interests of the child’ is a principle which originates from Article 3 of the United Nations Convention on the Rights of the Child. Article 3 states that ‘in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration’. This principle was later inserted into the Australian Family Law Act.
The Family Law Act
In 1995, the Family Law Act 1975 (Cth) was amended to specifically include the term ‘best interests’ in relation to children. Prior to 1995, this principle was known as the ‘welfare principle’.
The Family Law Act outlines a variety of different considerations and factors which a court must consider in determining what is in a child’s best interests. These are broken up into ‘primary’ and ‘additional’ considerations.
Examples of ‘primary considerations’ include:
- The benefit to the child of having a meaningful relationship with both of its parents; and
- The need to protect the child from harm, including physical and psychological abuse or family violence.
Examples of ‘additional considerations’ include:
- Views expressed by the child and any factors that the court thinks relevant to the weight it should give to the child’s views, such as maturity or level of understanding;
- The nature of the child’s relationship with its parents, relatives and others;
- The extent to which either parent has failed to participate in making long term decisions regarding the child, spend time with the child or communicate with the child;
- The extent to which either parent has failed to fulfil their obligations in relation to the child;
- The likely effect of any changes in the child’s circumstances, including separation from either parent, sibling, other child or relative (e.g. grandparents) with whom they have been living;
- The capacity of each of the parents and any other person (e.g. grandparents) to provide for the emotional, physical and intellectual needs of the child;
- Characteristics of the child (including maturity, gender, lifestyle, background); Whether the child is Indigenous Australian; and
- Any other factors the court feels are relevant.
A Recent Case Example
It is important to note that a child’s best interests encompasses both long-term and short-term concerns and can sometimes purely include the consideration of factors outside of the child. For example, in a recent 2020 case, Justice Bender commented on what ‘best interests of the child’ means in reality when weighed equally against other considerations. She further highlighted that this principle should be viewed in light of the ‘totality’ of the parents and children’s lives. Her Honour stated that:
“Being a committed and caring parent does not require a parent to put their entire life on hold and to abrogate their own happiness as an adult. Parents make decisions for themselves and for their children on the basis of what is in the whole family’s best interest on a regular basis. Intact families will uproot their children and move them away from school, friends and extended family for a multitude of reasons including change of employment, health and the necessity to assist family. When those decisions are made, it does not mean that the children’s parents do not have the best interests of the children as part of their considerations but rather are looking at the totality of their and their children’s lives when deciding such a move is best for their family at that time.”
Get Legal Advice
Navigating family law and parenting proceedings can be a confusing and emotionally exhausting task. Our dedicated family law solicitors are ready and willing to assist you with your parenting or family law concerns. If you would like further information, please do not hesitate to contact one of our experienced solicitors on 9963 9800 or via our contact form.
May 5, 2022 | Family Law
When ex-partners reach an agreement for the settlement of their financial matters upon separation, there are two ways this agreement can be legally finalised. These are ‘consent orders’ and a ‘financial agreement’. It is important to finalise family law financial matters through one of these methods, as informal agreements can easily collapse. In this blog, we review the two most common ways of finalising family law financial agreements, and explore considerations you should take into account when deciding which avenue is most appropriate for you.
Consent orders
A consent order is a written agreement that is approved by a court. It can cover many family law matters, such as parenting arrangements for children as well as financial arrangements for property or maintenance. Consent orders are lodged with the Family Court and officially stamped as a court order. The court must be satisfied that the consent orders are just and equitable and/or in the best interests of the child/children (if applicable).
In order to obtain a stamped consent order, two documents must be filed — the application for consent orders, and the proposed orders. The application will contain important details of the parties, such as assets, liabilities, income and superannuation. The proposed orders should set out the orders that the parties have agreed on and are asking the court to make.
Financial agreements
A financial agreement is not lodged with a court and is rather a private contract agreed on between the parties. In order to ensure the agreement is legally binding and enforceable, both parties are required to receive independent legal advice from different legal professionals about the consequences of signing the agreement.
Considerations when deciding which agreement is best for you
When deciding which avenue is more appropriate for your circumstances, there are a variety of considerations to take into account. Some of these include:
- Consent orders can cover matters pertaining to spousal maintenance, however a financial agreement may be a safer option to guard against any applications to prolong or increase maintenance. It is important to keep in mind that you are not confined to either option to settle your financial arrangements and a hybrid model could allow you to finalise your settlement.
- A financial agreement is not subject to judicial scrutiny and is a private agreement. Thus, any deal can be struck no matter how unfair it may be perceived. However, for a court to approve consent orders, it must agree that the orders are just and equitable.
- Often consent orders can take a long period of time to be approved, however financial agreements come into effect immediately upon the signing of the agreement by each party.
- If you are seeking property orders, you should read and consider the section 75 factors outlined in the Family Law Act 1975. To learn more about section 75 factors, see our blog here. Some of these factors include:
- How the length of the marriage affected the earning capacity of the party seeking maintenance The age of any children of the marriage/relationship
- The age and state of health of each of the parties
- The income, property, finances and ability to earn an income of each party
Get Legal Advice
An experienced family law professional will be able to assist you with determining which family law settlement document is most appropriate for you and your circumstances. If you would like further information, please do not hesitate to contact one of our experienced solicitors on 9963 9800 or via our contact form. For more articles on family and other areas of law, see our blog here.
May 1, 2022 | Family Law, Wills and Estates
Families and money can sometimes be a volatile combination. In circumstances where a divorce or separation occurs and a new will isn’t drafted, complications can arise. In this blog, we review what it means to have an inheritance included in the asset pool of a separating couple.
Why is inheritance an asset?
When a separating couple needs to divide their assets, they must first work out what assets are available to be pooled and distributed. This pool includes all the assets and liabilities in each person’s name and in the parties’ joint names, as well as each person’s share of an asset owned jointly with another person.
If one person received an inheritance before or during the relationship, that inheritance would normally form part of the pool of assets available for distribution.
Does that mean my partner gets half my inheritance?
No, not necessarily. Just because an asset is included in the pool of assets available for distribution does not mean that the asset or the whole pool will be divided 50/50. Each matter is considered on a case-by-case basis.
Importantly, once the parties have identified what is in the pool of net assets, they must then consider what contributions they each made to the relationship and its assets, and their respective future needs, in order to determine their respective entitlements and how the assets will be divided.
What are contributions?
When working out which party made what contribution, the Family Court considers the parties’ financial contributions – i.e. who earned what, the lump sums expended during the relationship, who bought what and who paid for what – and also non-financial contributions – such as being a homemaker and parent, physically renovating a home or landscaping a garden, managing the parties’ financial affairs and so on.
After a long relationship where there haven’t been any significant inheritances or other financial windfalls, a court will usually find that financial and non-financial contributions during the relationship are roughly equal, unless special circumstances apply.
An inheritance received by one party before the commencement of the relationship would be treated as an initial financial contribution by that person – money or assets that person brought into the relationship. Similarly, an inheritance received by one partner during the relationship is usually considered to be a financial contribution by that person. In these circumstances, depending on factors such as the size of the inheritance, when it was received, what it was used for and the parties’ other contributions, this would generally mean that the person who received the inheritance would be treated as having made greater contributions to that asset during the relationship.
What about an inheritance received after separation?
This situation is less clear cut. A court usually considers an inheritance by one party as a sole contribution by that person. Generally, this will mean that the other party did not contribute to the post-separation inheritance and it should not be included in the pool of assets to be divided. However, each matter is dealt with on a case-by- case basis and while this may be a potential result, it is always dependent on the facts of the case and the circumstances of the lead up to the inheritance.
For example, if the post-separation inheritance had been received from the husband’s mother and the wife had a close relationship with her mother-in-law and had cared for her during an illness, a court might find that both parties had contributed to the receipt of the inheritance and therefore both parties will be entitled to a share of the inheritance.
Future needs
After working out financial and non-financial contributions, the future needs of the parties are assessed before determining a split of the net assets and whether any adjustments should be made in favour of the party in need. Future needs include things like income, earning capacity, financial resources, ongoing care of children, age, and health.
An inheritance, even one received after separation, may be taken into account in this final step. The reason for this is the recipient of the inheritance would have greater financial resources and may be receiving income from an inherited investment which may well mean that that person’s future financial circumstances may significantly outweigh the other person. In such a case, a court may rebalance the division of the net asset pool in favour of the other partner by way of an adjustment which is derived from section 75(2) of the Family Law Act (Cth).
Summary
An inheritance received before or during a relationship will almost always be treated as an asset available for distribution between separating parties, whereas an inheritance received after separation will usually be found not to fall into the main pool of assets but may be treated in a separate pool.
The receipt of a large inheritance will have a significant impact towards the determination of contribution of the parties. In addition, an inheritance, including one received after separation, could have an impact on the determination of future needs of the parties and whether any adjustments ought to be made.
Finally, once the parties have been assessed as to the net assets, what contributions were made, whether there are future needs, a court is then required to determine whether the proposed split of net assets is just and equitable.
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Contact us
The Family Law team at Etheringtons Solicitors are skilled at handling all matters relating to inheritances and are able to assist with complex cases in the event of a relationship breakdown. If you need assistance with any area of Family Law, do not hesitate to contact us on 9963 9800 or via our contact form here.
