Family

How do you determine my legal entitlements?

Every situation regarding the division of assets between parties following the breakdown of a relationship is unique and the provisions of the Family Law Act 1975 (the Act) identifies the factors that can be considered when determining a fair division of assets. There is no presumption of a 50 / 50 split following the breakdown of a relationship.

The Act applies to parties in a marriage and to parties who were in a de facto relationship where:

• You were married or you have been divorced for less than 12 months; or
• You were in a de facto relationship and have been separated for less than 2 years.

In circumstances where you were married and have been divorced for more than 12 months, or it is more than 2 years since you separated from your de facto partner, you may need to obtain leave from the Court to initiate proceedings to obtain orders to settle your property matters following separation.

What factors are relevant to a property settlement

The Act requires the following factors to be considered:

• Firstly - is it just and equitable to consider a division of property between parties following the breakdown of a marriage or a de facto relationship. This requires consideration of matters such as the length of the relationship, assets acquired during the relationship and whether there are children of the relationship.
• Secondly - what are the assets of the parties to be divided. The Act requires all property (such as real estate, shares, bank accounts, motor vehicles etc), liabilities (such as mortgages, loans, creditcards, tax debts etc) and superannuation (whether in a self-managed superannuation fund or a retail fund) to be included in the pool of assets to be divided (“the asset pool”). The Court needs to know the value of the asset pool at the date the agreement is reached between the parties. The date of separation is not the relevant date for the valuation of the asset pool.  
• Thirdly - what contributions have been made by the parties to the relationship toward the accumulation of the asset pool including:
  • Financial contributions made by either party prior toward the acquisition of assets, during and after the relationship, with particular emphasis on "windfalls" such as insurance payouts or inheritances;
  • Non-financial contributions made by either party, such as improvements undertaken on a property;
  • Contributions made by either party to the welfare of the family (referred to as "homemaker and parent" contributions);
• Fourthly - what are the current and future needs of the parties including the parties ages, income and care arrangements for children of the relationship

What does it mean to formalise a property settlement?

In family law, “formalising” the terms of a property settlement is a crucial step to ensure that the agreement is legally binding on the parties. There are two main ways to formalise a settlement:

• either by submitting an application to the Court for Consent Orders; or
• by executing a Binding Financial Agreement.
• Each method has its own benefits and drawbacks, and we are able to advise you which option is best suited to your circumstances.

‍Why do I need to formalise my settlement if my ex-partner and I already agree?

There are many reasons to formalise a property settlement, even if it has been a long time since you and your ex-partner separated. Most importantly, obtaining consent orders or executing a Binding Financial Agreement draws a line in the sand, severs your financial relationship with your ex-partner and is the best way to prevent your ex-partner from making any claims on assets you receive in the future, such as inheritances.

How can Duffy & Simon help with my property settlement?

No matter where you are in the property settlement process, our family law team is here to help you resolve these matters quickly and cost-effectively, with the aim of achieving a just and equitable outcome.  We will provide you with clear advice tailored to your circumstances and assist you with your property settlement from beginning to end.

With firm-wide expertise across a broad range of practice areas, our colleagues can also assist you with related issues such as:

• Amending your Will and Powers of Attorney to remove your ex-partner as beneficiary / attorney;
• Wealth and estate planning now that you are no longer with your ex-partner;
• Setting up and administrating a new self-managed super fund; and
• Navigating tax liabilities triggered by your separation.

Whether you are considering separating from your partner or have been separated for some time, we will guide you through these complex, often emotionally charged, issues and empower you to move forward with certainty and assurance.

Parenting matters are often the most emotionally challenging part of separation. Parents come to us with concerns about:

• How much time they will spend with their children.
• Who will be the primary carer
• How to balance the children's needs with each parent's circumstances
• How to protect children in situations involving family violence

We take the time to understand the full picture — including the history of care, the wishes of each parent, and any risks that may be present. From there, we provide realistic advice and work towards arrangements that allow children to maintain strong, healthy relationships with both parents, wherever it is safe and appropriate to do so.

We support parents through every stage of the process, including

• Initial consultation - we assess you situation, needs and objectives, and provide guidance on your rights and potential outcomes.
• Mediation and negotiation - facilitating communication and helping parents reach amicable agreements on custody, visitation, and support.
• Drafting parenting plans - we create detailed, practical plans that set out custody arrangements and schedules
• Court filings - preparing and lodging the necessary documents if court involvement is required
• Representation in court - we advocate on your behalf and present evidence to support your case
• Child custody and support advice - we help you to understand and establish fair arrangements that serve the best interests of the child.
• Enforcement and modifications - assisting with compliance and helping to amend orders when circustances change
• Protection orders - obtaining orders to ensure the safety of you and your children if necessary

What do I need to consider?

When making parenting arrangements for children post separation, the primary consideration is “the best interest of the child /children”. The Family Law Act 1975 (the Act) sets out the factors that the Federal Circuit and Family Court of Australia (the Court) is required to consider when determining parenting arrangements in the best interest of the child. These include:

Primary considerations:

• What arrangements promote the safety of the child and prevent the child from being subjected to or exposed to family violence, abuse or the risk of harm;
• The benefit of a child having a relationship with both parents.

Other considerations;

• The views expressed by the child;
• The particular developmental, emotional and cultural needs of the child – including the child’s age and level of development / maturity;
• The capacity of each parent to provide for the child’s development;
• The benefit of the child having a relationship with both parents and other significant people;

Parenting arrangements v parenting responsibility

Care arrangements for children is different from parental responsibility for children post separation. In the absence of risk, it is presumed both parents shall have joint parental responsibility for the children and be required to make decisions jointly regarding the long term issues affecting children – ie education and medical.

In circumstances where there are concerns regarding the capacity of one parent to adequately provide for a child or there is a history of family violence, drugs or alcohol abuse, the other parent may seek sole parental responsibility to make decisions for the children – absent the agreement of the other parent.

What arrangements are in the best interest of a child /children

Determining parenting arrangements in the best interest of the children requires consideration of the facts and circumstances that apply to each family post separation. It is not always in the child’s best interest for the children to spend equal time with the parents, even when there is no risk of harm to the children presented by either parent.

The age and development of the children is an important consideration, and the living arrangements (location and amenities available) may also be relevant in determining parenting arrangements in the best interest of the children. That is, it may not be reasonably practicable for the child /children to spend significant time with a parent.

Opportunity to determine the outcome for parenting matters.

You and the other party are always at liberty to reach agreement regarding parenting arrangements in the best interest of the children post separation. If you are unable to reach agreement, attending Family Dispute Resolution (FDR), with the assistance of a trained practitioner, may assist you and the other parent to reach agreement about parenting matters.

If you fail to reach agreement privately or with the assistance of FDR, an application may be made to the Federal Circuit and Family Court of Australia to seek parenting arrangements for the children of the relationship. Parties may find the Court process emotionally difficult and lengthy. 

Is it necessary to formalise parenting arrangements.

No – it is not necessary to formalise parenting arrangements. Often parents are able to navigate parenting arrangements in the best interests of the children post separation without an formal arrangement or agreement.

In other circumstances, formal arrangements are required to ensure consistency and certainty to the parenting arrangements for the children and to avoid ongoing conflict.

Parenting arrangements may be formalised in either of the following ways:

• A parenting plan – being an informal written agreement containing provisions regarding the care of children agreed to by the parties. The plan is not legally binding and are usually effective when conflict between parents is low and the parents are able to communicate effectively about the care arrangements for the children.
• Consent Orders – this is a formal “agreement” approved by the Court. The terms of the agreement are enforceable in the event a parent fails to comply with the term(s) of the agreement. Consent orders are binding and may only be varied in certain circumstances.

Our team at Duffy & Simon can assist you to provide advice regarding parenting arrangements in the best interest of your child /children and to assist, if necessary to prepare a parenting plan or to issue Court proceedings. We can also provide you with advice regarding obtaining assistance through FDR (Family Dispute Resolution) to assist in resolving your parenting matters.

Child support can be a difficult and emotionally charged issue, particularly when parties disagree about what should be paid or received. Our team is able to assist to carefully review each situation, explain how the law applies, and assist you to make an informed decision regarding child support.  

‍What is child support?

Child support involves the payment from one parent to the other parent following the breakdown of a relationship, to provide financially for children of the relationship. It may also include the payment of specific costs for children of a relationship post separation by one parent.

The amount one parent pays to the other parent to financially support children of a relationship may be agreed between the parties or be formally assessed by Services Australia.

Assessment of child support

If parties are unable to agree upon the amount one party will pay to the other party for the benefit of the children, a party may apply to Services Australia for an assessment of child support. In those circumstances the amount one parent is required to pay to the other parent is determined by a formula applied by Services Australia – called an administrative assessment. This is the amount that parent is legally required to pay to the other parent.

Private Agreements

Where parties reach agreement regarding the amount of financial support one party will provide to the other for the child / children of the relationship following separation, the parties may have an informal or formal agreement.

With an informal agreement, Services Australia is not involved in the collection of child support from the parent paying child support to the other parent. The payments are made according to the private arrangement of the parties. The non-payment of child support (child support debt) will not be collected retrospectively by Services Australia on behalf of a party where an informal private agreement is in place.

Parties may also enter into a Binding Child Support Agreement in relation to the payment of child support. The agreement may provide for the following types of payments:

• Periodic payments – being an amount paid by one parent to the other parent on a regular basis;
• Non periodic payments – being amounts paid by one parent for the benefit of the children such as school fees, private health insurance, extra-curricular activity costs and expenses.

A Binding Child Support may be for a limited time (up to 3 years) or until the child / children turn 18 years of age and are no longer in full time secondary education.

For Children over 18 years

In some cases, child support may be received for children over 18 years of age including:

• Where a child remains at Secondary School and has turned 18 years of age. The requirement to pay child support ceases when the child completes secondary education.
• Where a child has a serious disability or illness.

Parties may reach agreement about the payment of child support to the other parent in such circumstances. That agreement may be formalised by way of an Adult Child Support Agreement.

Alternatively, the parent with the care of the adult child (or the adult child in some circumstances) may make an application to the Court for the other parent to continue to pay child support following the child/children turning 18 years of age.  

What happens if I don’t pay child support

If you are assessed to pay child support by Services Australia and you fail to do so, Services Australia have a range of powers under the relevant legislation to obtain the payment from you such as containing your employer to arrange for the amount to be paid by you from your income. It is also possible for Services Australia to deduct the amount that you owe by way of child support from any tax return to be received by you.

We carefully review each situation, explain how the law applies, and advocate for fair and sustainable arrangements. Our approach is practical, compassionate, and centred on achieving the best outcome for the child.

Our child support services include:

• Initial consultation to understand your circumstances, previous arrangements, and goals.
• Reviewing documents and setting realistic expectations based on your situation.
• Identifying necessary legal steps and preparing for negotiations.
• Communicating regularly with you throughout the process.
• Assisting with compliance and monitoring agreements.
• Providing representation if court proceedings are required (though we aim to resolve matters through mediation wherever possible).

Our family law team has extensive experience in child support matters. We are trusted because we:

• Advocate strongly for our clients’ rights while keeping the child’s best interests at heart.
• Provide clear, compassionate advice to help clients feel supported through a stressful process.
• Have a proven track record of resolving disputes effectively, often without the need for drawn‑out litigation.

Our dedicated, knowledgeable team is well placed to assist you with your Child Support matter. From the outset, we will advise you on your entitlements or obligations to help you choose the best Child Support arrangement for your circumstances and assist you in setting up and administering that arrangement.

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What is a divorce? How does it differ from separation?

People often use the word “divorce” to describe the general breakdown of a relationship. In Australia, however, a divorce actually refers to a specific Court order (called a Divorce Order) which legally ends a marriage. A Divorce Order is obtained by making an application, either jointly or individually, to the Court. These applications are subject to various rules and requirements and must be lodged in a particular way.

Separation, on the other hand, is not limited to legally married parties. A separation occurs when one party to a relationship, whether married or de facto, informs the other party that their relationship is over and that there is no reasonable chance of reconciliation. The date on which this communication occurs is called the date of separation. Separation can be mutual or initiated by just one person. It can also take place while the parties are still living together, a situation which is referred to as“separation under one roof”.

Following separation, the parties will need to divide all assets and liabilities, including superannuation entitlements, between them. This process is called property settlement. If there are minor children of the relationship, the parties will also need to agree on arrangements for care of the children. A Divorce Order by itself does not finalise these issues.

 Am I eligible to be divorced in Australia?

Parties who want to apply for a Divorce Order in Australia, whether married here or overseas, must meet each of the following criteria:

• At least one party must be an Australian citizen or must have lived legally in Australia for the past 12 months and intend to continue living in Australia. This is evidenced by an Australian citizenship certificate, Australian passport, Visa Entitlement Verification Online status check or copies of bank statements.
• The parties must have been separated for at least 12 months and 1 day before making the application.
• The parties must be able to provide the Court with a copy of their marriage certificate, together with a certified translation if the marriage certificate is not in English.

 How do I apply for adivorce in Australia?

To obtain a Divorce Order in Australia, one or both parties must file an Application for Divorce. If only one party (called the “applicant”) is applying for divorce, they will need to ensure the other party (called the “respondent”) is served correctly with the proper documents. Parties applying jointly do not have to worry about service requirements, as they are making the application together.

Once the application and supporting documentation has been filed and the Court’s filing fee has been paid, the application will be scheduled for a Hearing, which is ordinarily conducted remotely via telephone. Neither party is required to attend the Hearing unless:

• The applicant indicated in their applicationthat they wished to attend the Hearing;
• There are children under 18 and the respondenthas requested to attend the Hearing on that basis;
• The respondent opposes the application by filinga “Response to Divorce”; or
• The applicant was unable to find and serve therespondent, in which case an order for substituted service is required.

In most cases, a divorce will be granted during the Hearing.

One month and one day after the divorce is granted, the divorce becomes final and the parties can obtain a Divorce Order as proof that their marriage has legally ended.

How can Duffy & Simon help with my divorce?

Whether you are applying by yourself or jointly with your former partner, our experienced family law team can manage the process from beginning to end. This includes:

• Advising which application and supportingdocuments are required given your circumstances;
• Preparing all paperwork on your behalf;
• Undertaking all necessary service requirements;
• If need be, attending the Hearing on your behalf; and
• Obtaining your Divorce Order a month after the divorce is granted.

With our years of expertise and careful attention to detail, we are well placed to help you navigate this process as quickly and cost effectively as possible. By avoiding frustrating procedural issues and unnecessary delays, we can help you focus, following a separation to legally end your marriage.

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There are many types of behaviour that may constitute family violence. These include:

• Physical abuse including an assault;
• Sexual abuse or abusive behaviour;
• Financial abuse or controlling behaviour
• Stalking
• Threatening behaviour
• Intentionally damaging property;
• Coercive behaviour

 When family violence occurs either during a relationship or post separation, it may be possible for the person subjected to that behaviour to obtain an Intervention Order (IVO).

WHAT IS AN INTERVENTION ORDER?

An Intervention Order is an Order made by the Magistrates Court prohibiting a person from engaging in certain behaviours toward the person (and often children) requiring the protection of the Order (the Victim).

The conditions set out in an IVO preventing certain behaviour can be tailored to allow parties to continue to live under the one roof following separation if appropriate for example.

An IVO may be obtained by either:

• a member of Victoria Police on behalf of a person (and their children) where the police have been notified about concerns that you may have; or
• the person protected by the IVO by making an application to the Magistrates Court.

Where the Police obtain an IVO for a victim, a Family Violence Safety Notice (Notice) is usually issued and takes effect immediately, prohibiting the person named on the Notice from engaging in certain behaviours. The Notice remains in place until the matter is heard before the Court.

Where a person applies for an IVO through the Magistrates Court, the Magistrate may either make an Interim Intervention Order or list the application for a hearing for an Interim Intervention Order.

In either situation, the initial IVO is an Interim IVO until the matter resolves.

Final Intervention Order

The person against whom the IVO is made (the Respondent) may object to the conditions of the IVO and defend the proceedings. Alternatively, the Respondent may consent to a Final IVO, usually for a period of 12 – 24 months, sometimes with the conditions of the final IVO being limited to certain behaviours.

If the Interim IVO is contested the matter proceeds to a Contested Hearing in the Magistrates Court at which time the Magistrate hears all of the evidence and decides whether or not a final IVO is necessary to protect the victim.

Our team can provide you with advice in relation to the family violence that you may have been subjected to and assist you to make an application to the Magistrates Court where appropriate.

If you have been served with an IVO we can also provide you with advice as to the options available to you including:

• Contesting the IVO application; or
• Consenting to a Final IVO without admission to the allegations in the application before the Court.

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Upon agreement regarding a property settlement, a Binding Financial Agreement may be signed by you and your ex partner to formalise the property settlement can be a useful tool to finalise the terms of your property settlement.

A Binding Financial Agreement (or “BFA”) is a contract between you and your partner (whether past, present or future) which dictates how your assets are to be split following separation.

A BFA can be entered into:

• ‍Before a marriage or a de facto relationship begins, in which case it is often referred to as a “pre-nuptial agreement” or “pre-nup”;
• During a marriage or de facto relationship; or
• Following the breakdown of a marriage or de facto relationship.

Binding Financial Agreements are subject to a stringent set of legislative requirements contained in the Family Law Act 1975 (the Act). Should a BFA fail to meet any of these criteria, it’s validity may be challenged and the agreement set aside by a Court.  

‍What makes a BFA binding

In order to be legally enforceable, a BFA must meet all of the following requirements:

• The agreement must be signed by all parties;
• Before signing the agreement, each party was provided with independent legal advice from a lawyer about the effect of the BFA on their rights and about the advantages and disadvantages of entering into the BFA;
• Each party must obtain (and give to the other party) a certificate signed by their lawyer confirming that the party received the legal advice detailed above; and
• The agreement must not have been terminated by the parties or overturned by the Court.

Why should I choose a BFA over consent orders?

Consent orders are another way that parties can formalise the terms of their property settlement. Consent orders may be less expensive than the preparation of a BFA, and do not require both parties to obtain legal advice as the terms of settlement require approval from the Court. On the other hand, there are situations where consent orders are not available and the parties must execute a BFA including:

• Where the parties want to quarantine particular assets, such as property they owned prior to the relationship, from being divided pursuant to a property settlement following the break down of a relationship;
• Where the parties have not yet separated—noting that the jurisdiction of the Court to make consent orders is triggered by the parties’ separation, so there is no “pre-nup” equivalent for consent orders;
• Where the parties want to make provisions for the payment of Spousal Maintenance or, alternatively, ensure that no Spousal Maintenance will be payable—noting that consent orders cannot deal with this issue.

Our team will guide you through the key steps, that typically involves:

• Initial consultation to understand the specific needs and objectives of the client. Obtain all information about the relationship as well as all assets and liabilities to advise of likely entitlement from the asset pool
• Thereafter, potential negotiations with the other side in relation to an amicable resolution.
• Once there is an agreement, there will be a draft Binding Financial Agreement exchanged and reviewed.
• When the draft is settled and parties are ready to sign, they are provided with extensive advice regarding the effects of the agreement, the advantages, and the disadvantages. 
• Each party's respective solicitor will sign the Certificate of legal advice.
• There are extra steps to the above if funds from superannuation are to be transferred to super fund with draft agreement sent.

How can Duffy & Simon assist?

There are advantages and disadvantages of finalise the terms of a property settlement by way of a Binding Financial Agreement. Duffy & Simon can assist you to determine whether or not a Binding Financial Agreement is the appropriate document to formalise your property settlement following a separation.

In addition, each party is required to obtain independent legal advice prior to executing a Binding Financial Agreement and there is obvious scope for expert legal assistance in this area. Whether you are looking to have a BFA drafted or you have been provided with a draft BFA by your ex-partner’s lawyer, our knowledgeable team can ensure that the agreement is drafted properly and meets the legislative criteria and the terms of your settlement, as you understand them. With years of experience drafting and reviewing BFAs, our family lawyers are intimately familiar with the workings of these documents and can help you avoid a catastrophic situation where you later discover your agreement is invalid.

Additionally, our Wills and Estates team can help you amend the provisions of your Will to ensure there is no clash between the terms of your Will and your BFA. With dedicated lawyers across a broad range of expertise, Duffy & Simon is your one-stop shop for all things pertaining to your property settlement.