Family Law – property and parenting

Separation from one’s spouse is a distressing and painful experience and has an enormous impact on both your life and that of your family. Issues such as residence disputes, parents’ contact with children and settlement of the parties’ financial affairs arise and you will understandably want to know the financial and practical consequences of any decisions you are considering making.

Nash Allen Williams & Wotton’s experienced family law solicitors can advise you on all aspects of property settlement and parenting matters. We can assist you by entering into negotiations with your partner’s solicitor with the intention of reaching an agreement covering all your concerns, rather that launching immediately into litigation. It is often the case that court orders agreed to by the parties, can make the transition following the breakdown of a relationship smoother, easier, and certainly less expensive.

Although, if the matter progresses in such a way that means commencing court proceedings is unavoidable, Nash Allen Williams & Wotton solicitors are some of the most experienced on the Central Coast and regularly appear in family courts in Newcastle, Sydney, and Parramatta.

Parenting Matters

A fundamental principle in any parenting arrangement is the best interests of the child.

Ideally, the separating parents will reach an agreement on parenting matters and responsibility. When this happens, Nash Allen Williams & Wotton solicitors can assist with drawing up a parenting plan: an informal agreement which sets out each parents’ responsibility and other specific parenting matters.

When the separating parents are having difficulty reaching agreement though, a parenting order may be required. A parenting order also sets out each parent’s responsibility but is a legally binding and enforceable order made by the court and in certain circumstances can be useful even for parents who are able to reach agreement.

Except in cases involving family violence or child abuse, the courts presume equal shared parental responsibility, and this will be reflected in the parenting order calling for the children to spend equal time with each parent where reasonably practicable. Equal responsibility does not apply to everyday activities and most short-term matters, meaning that joint decisions or agreements on these are not called for. There are many things that separating parents will need to consider, for example, you should consider including the requirements for travelling outside of the country with children in a parenting order, including consent for applying for a child’s passport or who should hold the child’s passport.

Given the somewhat complex nature of shared parenting, it is best to always work with a lawyer, regardless of how amicable the split is.

Property Settlement

Regardless of whether you and your partner were married or in a de facto relationship, the Family Law Act 1975 is what the court considers when it comes to property division and financial disputes. Assets and debts are always considered in terms of individual circumstances, but the courts will look at:

• The value of each person’s assets and debts
• What each person’s direct financial contributions were, including wages or salary
• What each person’s indirect financial contributions were, such as gifts and inheritances
• Non-financial contributions to the relationship, including childcare and management of the household
• Ongoing requirements or commitments for childcare that factor in age, health, ability to earn, and financial resources of both parties

There is no 50/50 rule or law in Australia, with each case considered on individual circumstances. A key consideration with applications to the courts for property settlements is time limits. If the parties were married, the application must be made within 12 months of the divorce being finalised. For de facto relationships, applications must be made within two years of the relationship breaking down. Applications made outside of these time limits can be made, but only if special permission has been granted by a court.

Family Law FAQs

What Is Considered a De Facto Relationship?

Unmarried couples can register their relationship in NSW and have it recognised as de facto. However, there are other circumstances where a relationship will be considered de facto by the courts and allow for a property settlement claim. These include:

• The couple have lived together for more than two years
• There is a child of the relationship, or you care for the other person’s child and would suffer an injustice
• One of the partners has made substantial financial or personal contributions for which they will not be adequately compensated

What Are the Best Interests of the Children?

The primary considerations in deciding the best interests of children are that:

• There is a benefit to the children to having a meaningful relationship with both parents
• The children are protected from being subjected to physical harm or exposed to psychological harm

However, there are various other considerations the courts will take into account, including the children’s relationship with each parent.

How Long Do Parenting Orders Last?

Parenting orders remain in place until the child turns 18 years old. If any significant changes in the circumstances of either parent occurs before then, an application can be made for the parenting order to be changed or modified.

Is Maintenance and Child Support the Same?

Maintenance and child support are two different forms of financial support. Maintenance is financial support that is paid to a spouse who cannot support themselves, while child support is paid in support of the care of a child following a separation or divorce.