Nov 11, 2020 | Family Law
Child support agreements are contractual arrangements between parents or non-parent carers to enable financial support for their children. The Child Support Scheme was introduced by the Australian government in 1998 to ensure the adequacy of court ordered child maintenance. Child Support is payable for all children living in Australia (up to the age of 18 years) following separation, regardless of whether the couple were married to each other or not.
Child Support Assessment
The Department of Human Services can make an assessment for child support based on income tax records and other financial information held by the ATO and the Commonwealth Government. The assessment is a complex formula and will broadly take into account the following:
- Parents’ income
- Combined income
- Time each parent cares for the child
- Child’s age
- Living expenses
Child Support Agreements
If parties are able to reach an agreement between the other, then a solicitor can prepare a binding Child Support Agreement which is registered with the Department of Human Services. The agreement may include a combination of cash payments and non-cash payments (such as health insurance and school fees). There are two types of Child Support Agreements that can be formed depending on your circumstances.
1. Limited Child Support Agreement
This agreement requires a Child Support Assessment to be undertaken before the Child Support Agency accept the terms of the Agreement. A Limited Child Support Agreement is limited by the amount payable under the agreement, which must be equal to or more than the Child Support Assessment.
2. Binding Child Support Agreement
A Binding Child Support Agreement can be entered into between the parties despite whether a child support assessment was undertaken or not. Further, it can be made for any amount that is mutually agreed upon. However, both parties must obtain independent legal advice before making or terminating a Binding Child Support Agreement.
Court Ordered Child Support
A court may make a child maintenance order for children not covered by child support legislation, such as maintenance for children from carers who are not eligible for a child support assessment. The Family Law Act regulates the process of enforcing child maintenance orders.
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The team at Etheringtons Solicitors are skilled at handling all matters relating to Child Support Agreements, and are able to assist with complex cases and the modifying of agreements after they are in place. If you are currently thinking about entering a Child Support Agreement or need assistance with any area of Family Law, do not hesitate to contact us on 9963 9800 or via our contact form here.
Aug 12, 2020 | Family Law
There are five important things to do before leaving your relationship. In Australia, de facto relationships are recognised by law, therefore when de facto or married couples split, there are legal considerations which must be dealt with before ‘walking out the door’.
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. Your ex-partner may also have a level of control over your finances or medical decisions unless this is amended.
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, 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, having access to your sensitive information could be an issue for you.
2. Plan for the Children
The parties should reach an amicable agreement about how the 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 the children that are in their best interests. If you are unable to agree on arrangements for the children, a certificate, called a Section 60i, will be provided to you, and you will need to provide this before you can file an Application with the Court in relation to parenting matters. An exception to this rule is where family violence has occurred or there are matters of urgency.
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 if the parties so agree. 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 assist you to reach resolutions that are in your best interests.
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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.
Aug 11, 2020 | Family Law
Spousal maintenance is a responsibility you or your former partner might have to financially support the other person after separation or divorce. Spousal maintenance is not automatic and, in most cases, is only payable where one partner cannot reasonably support themselves and the other person has the capacity to pay maintenance. It can be a series of regular payments or it can be paid in one lump sum.
Parties should attempt to reach an agreement out of court or upon negotiating a property settlement before commencing legal proceedings. If an agreement cannot be reached, an application can be made for a financial order.
Court Order for Spousal Maintenance
Parties to a marriage have the right to make an application for Spousal Maintenance (section 72 of the Family Law Act), and similar provisions enable parties to a de facto relationship to apply (section 90SE). When assessing an application for spousal maintenance, the court will take into account many factors outlined in section 75(2) which include:
- Income, property, debts and financial resources;
- Age;
- Health;
- Ability to earn an income;
- A suitable standard of living;
- Children living with you or your former partner.
Common situations that result in spousal maintenance include when a spouse:
- Has had to give up work to care for young children and either it is unreasonable for them to obtain work or they do not have necessary current skills enabling them to re-enter the workforce;
- Is unable to work due to ill health or health issues or because they are suffering a mental or physical disability;
- Is responsible for taking care of children under 18 years or adult children who are disabled.
When to apply for a Spousal Maintenance order?
There is a strict time limit if you are applying for spousal maintenance for the first time, but once an order has previously been made, time limits do not apply. If applying for the first time, an Application must be made to the Court within:
- One year of a divorce becoming absolute for married couples (when a Certificate of Divorce is actually issued by the Court);
- Two years of separation for de facto couples.
An application to the court outside the time limit will be granted in limited circumstances.
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We know that the divorce process can be strenuous for both parties. If you would like more information on how we can assist you with your property settlement matter or any other family law matters, do not hesitate to contact us on 9963 9800 or contact us here.
Jul 14, 2020 | Family Law
Did you know that once you enter into a marriage or de facto relationship, in certain circumstances, you or your spouse could be liable to maintain the other in the event their marriage or de facto relationship breaks down? This is called Spousal Maintenance.
This responsibility to financially assist the other is set out in the Family Law Act and exists if that person cannot meet their own reasonable expenses from their personal income or assets.
Where this need exists both parties have an equal duty to support and maintain each other as far as they can and this obligation can continue even after separation and divorce. The extent of the support depends on what the other party can afford to pay and the circumstances of each matter. This article explains this key area of Family Law in detail.
Spousal Maintenance is different to Child Support
Firstly, it is important to know that spousal maintenance is not child support.
Child support is paid for the benefit of children and in addition to that the Family Court can order a party to pay spousal maintenance. The Department of Human Services administers Australia’s Child Support Scheme and works with separated parents to manage their child support responsibilities for the benefit of their children.
What exactly is Spousal Maintenance?
The Family Court can only make an order for one party to pay “spousal maintenance” to the other if the spouse making the application is unable to adequately meet his or her own reasonable needs and the other spouse has the capacity to pay.
Maintenance for a former spouse or de facto partner is the division of future income and/or current capital assets following the breakdown of a marriage or de facto relationship. In certain circumstances, separating couples can have an obligation to provide ongoing financial payments in the form of weekly or lump sum payments by way of maintenance for their former spouse or de facto partner.
This liability to maintain a former spouse or de facto partner can continue until their death or until they have the financial capacity to support themselves. Usually the payment of spousal maintenance is tailored to end upon the occurrence of a specific event, for example, the person receiving maintenance is completing training or re-skilling, securing employment or commencing a new de facto relationship or marriage.
Time Limits
Applications for spousal maintenance for married couples must be made within 12 months of their divorce becoming final whereas applications for de facto partner maintenance must be made within 2 years of the breakdown of the de facto relationship.
It is possible to apply outside the time limits, but the Court does not always grant these late applications.
What if the person is in a new relationship?
A former spouse is not entitled to spousal maintenance if they marry another person. If you start a new de facto relationship the court will have regard to the financial relationship between that person and their new de facto partner when considering whether the former spouse can support himself or herself adequately.
What does a Court consider when making a Spousal Maintenance Order?
Spousal maintenance is not an automatic right. In deciding a maintenance application, a Court considers the needs of an applicant and the respondent’s capacity to pay including the parties’:
- Age and health
- Income, property, and financial resources
- Ability to work
- Ability to earn an income as a result of the marriage
- Suitable standard of living
An example of when a Court will most likely make an order for spousal maintenance is in cases where one party is at home with the care of young children and therefore unable to exercise their income earning capacity.
Other examples could be where one party has been out of the workforce for a significant period of time raising the children and has become de-skilled or unemployable due to age, being unemployed for an extended period of time, or where one party was unable to work due to illness.
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A party’s obligation to pay spousal maintenance may be discharged in various ways including through periodic and regular payments or by way of a lump sum payment. It may also exist for different periods of time.
Although spousal maintenance is generally intended to operate only for a short period of time following separation to enable applicants to get back on their feet, in certain circumstances, it may be appropriate that spousal maintenance be paid for a longer period of time.
The calculation of and assessment for the need of spousal maintenance requires a deep understanding of family law and time limits apply.
If you know someone who needs help and would like to have a confidential discussion please arrange for them to call Etheringtons Solicitors on (02) 9963 9800 or via the contact form here.
Jul 13, 2020 | Family Law
Understanding Australian Child Custody Laws
Australian Child Custody Laws recognise that fathers have an important role in the caretaking of children by the creation of an equitable agreement between parents that is first and foremost in the best interests of the child. There is a common misconception that the mother would retain primary custody of children because they are traditionally viewed as more suitable for the role of primary carer. On the other hand, fathers were considered less likely to retain custody because they were considered more likely to be employed and have a better overall earning potential.
In Australia, Child Custody Laws provide the equitable foundations for a fair child custody split between parents, however there may be many equitable reasons as to why an even split is unattainable.
Research from the Australian Institute of Family Studies
The Australian Institute of Family Studies has recently found that approximately half of mothers would prefer to see increased paternal involvement in their children’s lives. In the same study, a majority of fathers also expressed a preference for increased involvement. Interestingly, the fathers cite the following most common factors that prevent such involvement:
- work commitments;
- belief that the child’s mother would oppose more involvement; and
- physical distance/travel costs.
Child Custody Laws
Australian Child Custody Laws have been reformed in this area to make it clear that there are no specific parents’ rights and that there are does not make any legal distinction between fathers and mothers. The Court is instead governed by, and legally obliged to consider, the child’s rights and best interests above all else.
The Family Law Act 1975 (Cth) covers such diverse matters as divorce and separation, parenting arrangements, property settlement and financial maintenance of one party by the other.
With respect to parenting matters, the Act states that a “child has a right to be known and cared for by both parents”, without prioritising either the rights of the father or mother. Unless there are allegations of domestic violence or abuse, the Court would adopt a view that it is in the child’s best interests to spend as much time as reasonably and practically possible with both parents.
How the Family Law Act Applies to Child Custody
When considering parenting arrangements following separation, the Court has to determine who the child will live with and spend time with. Both parents have a responsibility for the care of their children, including their financial support. Despite this, the law does not guarantee an equal-shared parenting arrangement in all matters.
If the Court does not decide that an equal-shared-care regime is in the best interests of the child, the Court will consider allocating substantial or significant time to the non-resident parent. The exception is in a case where there is a history of domestic violence or abuse. In the latter case, the Court will prioritise the child’s safety and wellbeing and make appropriate parenting orders.
Further Considerations for Child Custody Rights for Fathers
In determining what is in the best interests of a child, the Court will consider the wishes of the child, as well as the nature and history of the relationship the child has with each parent. There might be practical difficulties of long-distance parenting and specific emotional or intellectual needs to consider, as well. Communication between both parents and availability of either parent will also be taken into account.
Conclusion
The family law legislation does not enable the Court to take into consideration stereotypical gender roles. Rather, the Court’s decisions are strictly governed by the principle of the children’s best interests. If you have any questions with respect to parenting arrangements of your children, please contact Etheringtons Solicitors for advice on (02) 9963 9800 or contact us via our contact form.
