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Child Support – The Details

As you and your spouse separate and divorce, child support will be one of the issues you will need to address. The primary purpose of child support is to guarantee that children’s day-to-day needs will be met through regular periodic support payments. Additionally, child support allows children to enjoy the same or similar standard of living as their parents. Child support lawyers can be arranged by agreement between the parents, or through an administrative assessment conducted by the Child Support Agency (CSA).

Child Support Agreements

Often the best way to arrange for child support is through an agreement between the parents in the form of a child support agreement. This method allows parties to deviate from the formula used in the administrative assessment used by the CSA to determine support. There are two types of agreements that may address child support: a binding child support agreement and a limited child support applications agreement.
Child support agreements are considered binding if both parties to the agreement were given independent legal advice (from separate counsel), and the agreement must state that this is in fact the case. Additionally, the counselor who administered the legal advice must also execute and sign a certificate, which is included in the agreement. A binding child support agreement can be for any amount – including an amount less than prescribed under the CSA formula.
Unlike a binding child support agreement, a limited child support agreement does not require that the parties obtain independent legal counsel. The only requirements for this type of arrangement are that the agreement is in writing, signed by both parties and that the amount agreed to is at least equal to the amount payable under the child support agency formula.
It is not possible to modify or alter a child support agreement; rather you must terminate the agreement and enter into a new one. The Child Support Assessment Act provides for several ways to terminate a child support agreement:

  • by entering into a fresh agreement
  • by agreement in writing
  • a court order
  • a new national assessment, and
  • simply if the agreement is three or more years old.

Child Support Agency and Administrative Assessments

Should you and your former spouse be unable to reach an agreement and execute either a binding or limited child support agreement, you may arrange for child support through the CSA. In order to obtain this, you must first make a child support application for an administrative assessment. The assessment will be made using the appropriate formula and can be subject to private enforcement or registered for collection through the CSA.
Administrative assessments are calculated by using a formula that requires parents to share in the support of their children and is based upon the level of care provided as well as their respective incomes. The various applicable formulas take into consideration a child support income amount, adjusted taxable income, self-support amount, and relevant dependent child allowance, among other figures. There are six formulas available, although the most common is “formula 1.”

The steps to determine formula 1 are as follows:

  • Calculate each parent’s daily child support income for the child
  • Calculate the parents’ daily combined child support income for the child
  • Calculate each parent’s daily income percentage for the child
  • Calculate each parent’s daily percentage of care for the child
  • Calculate each parent’s daily cost percentage for the child
  • Calculate each parent’s daily child support percentage for the child
  • Calculate the daily cost of the child
  • If a parent has a positive child support percentage under step 6, the annual rate of daily child support payable by the parent for the child is calculated by using this formula:

Parent’s daily child support percentage for the day

X (multiplied by)
Costs of the child for the day
Formulas 2, 3, 4, 5, and 6 are less common. They are variations provided to consider non-parent careers, non-resident parents, multiple cases, and special circumstances or deceased parents.
Should any of the elements used in the formula change, the CSA should be notified so that the child support amount may be recalculated.
It is possible to be awarded an amount that is inconsistent with the administrative assessment of child support. If you are seeking a departure from the assessment you simply need to fill out a form and submit it to the CSA who will then schedule a conference to hear the parties. A written decision is ultimately provided to both parties. In determining whether a departure is proper, grounds for such must be established, it must be just and equitable, and it must be deemed otherwise proper, and there must be a special circumstance. The Child Support (Assessment) Act 1989 has enumerated ten types of special circumstances:

  • Costs of caring for a child. It costs you more than 5% of your child support income amount to spend time with the children.
  • Special needs of a child. It costs you extra to cover the children’s special needs.
  • Manner expected by the parents. It costs you extra to care for, educate or train the children in the way that you and the other parent intended.
  • Income and earning capacity of the child. The child support assessment does not take into account the income, earning capacity, property or financial resources of the children.
  • Money, goods, or property from the payer for the benefit of the children. The children, the payee or someone else has received or will receive money, goods, or property from the payer for the benefit o the children.
  • High costs of child care. You are the payee, you have sole care of the children, and it costs you more than 5% of your child support income amount for the child care for children younger than 12 years of age at the start of the child support period.
  • Necessary expenses in self-support. You have necessary expenses in supporting yourself that affect your ability to support the children.
  • Income, earning capacity, property or financial resources of one or both parents. The child support assessment does not take into account the income, earning capacity, property or financial resources of one or both parents.
  • Legal duty to maintain another person or other children. You have a legal duty to maintain another person or other children not included in the child support assessment, and it costs you: more than 5% of your child support income to have contact with that person or those children, extra to cover the special needs of that person or those children, extra to cover the necessary expenses of that person or those children.
  •  Additional income. You have earned additional income for the benefit of resident children.

A child support assessment ends upon child support terminating event. Such an event can occur when the child turns 18, when the child is adopted, or when the child, career or liable parent dies among other events.

Alternative Payment Methods

While it is most common to receive child support in periodic payments, it is also permissible to receive it in a lump sum payment. The most common situations where lump sum orders are considered are where there are difficulties in the enforcement or where the liable parent is asset rich and income poor, although there are many other situations in which a lump sum could be awarded.
Another payment method that has been gaining in popularity is a combination of the periodic payment and lump sum concepts. This results when the liable parent deposits the sum to be held in trust and distributed as child support liabilities accrue.
Finally, a party does have a right to make objections regarding decisions made by the CSA. The objecting party must lodge the objection 28 days from the service of the decision, and a decision regarding the objection will be made within 60 days. Additionally, there is a formal process available to allow parties to appeal an objection decision. 

Property Division – The Details

The Family Law Act provides for property division for both formerly married couples, as well as de facto couples. There are two main goals when it comes to property division. First, this should be a step towards finalizing the economic relationship between the parties. This “clean break” principal is supported by the requirement that courts make orders that will end the financial relationship of the parties as far as practicable. Second, this process recognizes contributions to property, both financial and non-financial.

An action for property division must be brought timely. For instance, if you were formerly married you must bring any property proceedings within 12 months of when your divorce order became absolute. Alternatively, if you were in a de facto relationship, you must seek property division prior to two years after the end of the relationship

Broad Discretion

The court maintains broad discretion when it comes to making property orders. For instance, should the parties disagree as to the ownership of property, the court has the discretion to make a declaration regarding the property in question.

Even the language in the Family Law Act speaks to this notion that the court has an abundance of discretion; the exact language expresses that the court may make “such order as it considers appropriate.” This broad discretion is subject to seven restrictions/considerations the court must contemplate. These considerations listed below are enumerated in the

Family Law Act.

  • the direct and indirect financial contributions of the parties
  • the non-financial contributions of the parties
  • contributions to the welfare of the family, including contributions as homemaker or parent
  • the effect of any order on the parties’ income earning capacity
  • the list of considerations in s 75(2) and 90SF(3) of the Family Law Act
  • any other order made under the Family Law Act affecting a party or child of the marriage or de facto relationship
  • any child support payable, or likely to be paid in the future

Finally, the last bit of guidance that the Family Law Act offers to the court, is that the court shall not make an order unless the circumstances indicate that it is both just and equitable to make the order.

Because the Family Law Act fails to provide strict guidelines with regard to property division, and the courts are given such broad discretion, the courts have adopted a four-step process to apply to property orders. First, the court must identify and value the property, then consider contributions of the parties, then consider the factors listed above, and finally consider whether the order is just and equitable.

Step One: Identify and Value Property

The court must identify and value a rather encompassing pool of property, which includes real property, assets, liabilities, financial resources, property presently possessed and property expected, as well as property disposed of. The court must also identify and value business interests, licenses, permits and professional qualifications, inheritances, insurance policies, among many other types of property. As you can see, the type of property is pretty much anything – the list is rather extensive.

Both the nature of the property as well as the value must be determined as of the date of the decision, rather than the date of separation or divorce. When determining the value of the property, the court will begin by considering the fair market value of the property. Fair market value generally refers to the amount that a willing (not anxious) purchaser who is adequately informed would pay a willing (not anxious) seller of the property. In some instances where there is a dispute as to the value of property, and the court cannot make a determination of the value, the court may order the property be sold.

Once the property has been identified and value, a simple formula is used to determine the net asset pool of the parties. The total assets minus the total liabilities will result in the net asset pool used by the court.

Step Two: Contributions

The court will consider financial contributions, non-financial contributions, contributions to the care and welfare of the family, and contributions in the capacity of homemaker or parent. Financial contributions are any monetary contribution related to acquisition, conservation, and improvement of the property and refers to contributions made before the marriage, during the marriage, and after separation. On the other hand, an example of a non-financial contribution would be where one party performs maintenance or renovations of any family asset.

Often, especially when considering long relationships, the court will make a determination that the parties contributed equally. However, each situation is unique, and may not call for a determination of equal contribution. The court can make necessary adjustments to account for your unique circumstances.

One situation that is given special attention with regard to contribution is violence. If violence during the marriage or relationship had an adverse impact on a party’s contributions to the marriage, the judge will consider this when assessing the respective contributions of the parties.

Step Three: Additional Factors

This step helps the courts in addressing the future needs of the parties. The court will consider all relevant factors, including but not limited to:

  • the age and state of health of each party,
  • the income, property and financial resources of each party and their physical and mental capacity for achieving gainful employment,
  • responsibility for a child of the marriage who is less than18 years old,
  • commitments necessary for a party to support themselves or to support any other person that the party has a duty towards,
  • eligibility for a pension, allowance or benefit,
  • the standard of living which is reasonable in the circumstances,
  • whether the relationship has affected the earning capacity of a party and to what extent,
  • if either party is living with someone else, the financial circumstances arising from cohabitating with another person,
  • the terms of any Orders made in relation to the property of the parties and the terms of any binding financial agreement.

Step Four: “Just and Equitable” 

The last step in the property division scheme requires to court to ensure that the proposed order is both just and equitable. This step is intended to allow the court to take a step back from the proceedings, and a whole, determine if the order is appropriate. The order should only be finalised if it is fair for each party. What is fair for one couple may not be fair for another couple, and thus determining fairness is wholly dependent on the circumstances of each individual case.

Variations of Property Orders

Despite the objective of ending the economic ties between the parties, property orders may in fact be varied after they have been issued. Variations are only permissible under certain circumstances. The Family Law Act only allows for reconsideration of a property order where both parties have consented, or where one party makes an application and the court is satisfied that at least one of the following is applicable:

  • there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence, etc.
  • circumstances have arisen since the order was made that has rendered it impracticable for all or part of the order to be carried out
  • a person has defaulted in carrying out an obligation imposed by the order, and as a result it is just and equitable to vary or set aside the order
  • circumstances have arisen since the order relating to a child or the marriage or relationship, and hardship will occur if the order is not set aside or varied
  • a proceeds of crime order concerning property of the marriage or relationship, or such an order has been made against a party to the marriage or relationship.

Should you be in a situation where you anticipate property division, the best thing for you and your former partner to do is to work through steps one through four before bringing property proceedings. This will often help you avoid having to go through litigation to arrange for your property division.

Maintenance – The Details

Maintenance – The Details

When there is a disparity between parties’ income and earning capacity, the Family Law Act allows this disparity to be remedied through the something called “maintenance.” Typically, maintenance is only available for a short-term period – about three to four years. The idea behind only allowing a party to receive maintenance for a relatively brief period of time is that the maintenance payments are intended to compensate the recipient while that person takes steps to enter the workforce or re-establish him or herself.

Much like the approach to property division, the objective of maintenance is to work towards a “clean-break” between the parties. Maintenance is intended to be a temporary crutch to help the financially disadvantaged party get back on their feet and subsequently be able to independently support themselves.

An action for maintenance can be brought before divorce, after divorce (but within 12 months), even if the parties’ marriage is void, and after the breakdown of a de facto relationship. The two major limitations with regard to orders for maintenance are that you must get leave or court (special permission) to seek maintenance after 12 months of the divorce being final, and you cannot seek maintenance if there is a binding financial agreement that addresses maintenance.

Who Is Entitled to Maintenance?

The Family Law Act provides for three circumstances that warrant an order for maintenance for formerly married couples. Said circumstances are:

(a) by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;

(b) by reason of age or physical or mental incapacity for appropriate gainful employment; or

(c)  for any adequate reason,

Additionally, the court must consider relevant factors in making this determination. Those factors include: the ability of one party to pay, the standard of living of the spouses, the income capacity of the receiving spouse and whether it has been negatively impacted by the marriage, any child support being paid, and the health of the spouses.

There is a similar provision regarding maintenance for de facto couples. While there is no automatic right to maintenance, one party may be liable to pay maintenance towards the other party to the extent that the party can reasonably do so and only in circumstances where the other party is unable to support himself or herself adequately. The test used by the courts is not whether the applicant is in need of maintenance, but rather if that person is in a position to support themselves with their own resources.

Types of Maintenance Orders

An order awarding maintenance can be made several ways; by consent, after a contested hearing or to meet urgent needs. The Family Law Act gives courts the authority to issue an urgent maintenance order without a detailed enquiry, which would normally be required upon application for maintenance. These cases are rare, and only exist where one party is in immediate need of financial assistance. These orders differ from regular maintenance orders and only last for a limited duration.

Another type of maintenance order is referred to as a secured maintenance order. This occurs where the court makes a requirement that a maintenance order be secured by some type of collateral. These orders minimise the risk of default, and also make the enforcement of a maintenance order easier.

Maintenance can be in the form of periodic payments, a lump sum, or use of the car or home. The modern trend is for maintenance to be issued in a lump sum amount. This is preferable because the objective of awarding maintenance is to provide the financially disadvantaged party temporary help to reach a level of self-support. Often, a lump sum works towards this objective better than periodic payments.

Varying and Terminating Maintenance Orders

Maintenance orders differ from other family law orders in that they may only be varied on limited grounds. In order to have the amount of a maintenance order increased or decreased, the following circumstances must have occurred since the order was made or last varied:

  • the circumstances of a person who was benefiting from the order have changed
  • the circumstances of the person liable to pay have changed
  • the cost of living has changed to justify a variation
  • the amount is not proper or adequate and the original order was made by consent
  • material facts were withheld from the court or deemed false, and those facts affected the order issued by the court

While the court enjoys slightly more discretion when varying other orders in family law proceedings, it is clear that they may only vary maintenance orders for the reasons laid out above.

Once a maintenance order requiring the payment of a lump sum has been executed, and the money paid, that order can no longer be varied. Such orders are deemed to have completed and at that point cannot be altered.

An order for maintenance will terminate upon the happening of various events. It will terminate at a time prescribed in the order, when the order is discharged, when one of the parties dies, or when a party remarries. However, it is important to keep in mind that once a maintenance order terminates, your rights to collect arrears do not also terminate. If you are owed maintenance, you may still collect it despite the fact that the order is no longer in affect.

Divorce – The Details

Divorce – The Details

Australia does not recognize “fault” based divorces; rather one must show that the marriage has broken down irretrievably. One may only show such a break down by establishing that the parties in fact separated, and have lived apart for at least 12 continuous months prior to filing an application for divorce. Bear in mind that the day the parties separate is not counted in the 12 month calculation. Thus, the application for divorce may not be filed until twelve months and one day have passed since separation.

While the above requirements seem fairly straightforward, a lot of questions can arise with regard to divorce. This article is designed to give you an in depth look into all of the issues surrounding divorce and answer any questions you may have.

What constitutes separation?

First, showing a physical separation between the parties for the specified time period is not enough to establish legal separation. Legal separation is more than mere physical separation, and must also evidence a breakdown of the marital relationship.

Whether parties are actually separated is going to differ from case to case, and is largely a question of fact. The law requires a substantial breakdown of the marital relationship be shown, but there is no further clarification as to what exactly that means. Australian courts have carved out three elements that are required in order to establish a valid legal separation.

  • Intent. Both parties must intend to either sever or not resume the marital relationship.
  • Action. The parties must act on their intent, or act as though the relationship has ended.
  • Unilateral Action. If only one party considers the relationship has ended, that party must communicate such to the other party.

You may have noticed that physical separation is missing from the above elements. Does that mean that you can have a valid legal separation while still living in the same home? Surprisingly, the answer is yet. The Family Law Act of 1975 addresses this issue head on and specifically states that a separation can exist even where the parties have continued to reside in the same residence.

Bear in mind however, that courts are cognizant of false claims of separation so it is advised that the parties have evidence to corroborate that they are separated despite living under the same roof. The aforementioned elements of intent and action must still exist, so if you chose to remain roommates while separated, make sure you can still prove both. Also, you will have to submit an affidavit which details the arrangements you have made with regard to where each party sleeps, the extent of household services rendered, if there are separate bank accounts, etc. You are also required to have a witness, such as a family member, friend, or neighbor submit an independent affidavit to corroborate your separation.

Remaining in the same house during your separation may have some benefits, for instance, it is less expensive, and if you have children it will be less disruptive on their lives. However, if you chose such an arrangement you must be prepared to disclose personal information such as sleeping arrangements to the court in your affidavit.

What about the resumption of cohabitation?

Say you separate, and then a few months into your separation you and your ex decide to try and make things work. You move back in with your ex and give it a shot. What effect does this have on your otherwise valid separation?

First, resuming cohabitation is not as easy as simply moving back in together – as we discussed previously, you can still be legally separated and living under the same roof. In order for cohabitation to affect your separation, your new relationship needs to look similar to the way it did when you were married. For instance, simply moving back in together will not be enough to establish the status of resumption of cohabitation, this only exists when the relationship mirrors, or is substantially similar to your previous relationship. Additionally the occasional slip up, or casual acts of intercourse will not be enough to establish a resumption of cohabitation.

The major thing to keep in mind regarding resumption of cohabitation is how long the cohabitation lasts. Should your reconciliation last less than three months, you are permitted to count the time you were separated prior to getting back together in calculating the twelve months of separation required before being eligible to apply for a divorce. On the other hand, if your reconciliation lasts for three months or longer, you must begin a new twelve-month period of separation before you may file an application for divorce.

If you resume cohabitation after you have already filed for divorce, it may be grounds for the court to refuse your application. The court will look at your relationship as of the date of the hearing (not the date you filed your application), to determine if the application should be denied based on reconciliation. The party wishing to show the reconciliation must bring evidence in support of her argument. However, a reconciliation after filing for divorce does not mean your application will automatically be denied. The court will look at your unique circumstances and make a decision based on such.

How do I apply for divorce?

After you have been legally separated for twelve months, you, your partner or both of you jointly may file for divorce. However, the court will only entertain an application filed by a party who is a citizen of Australia, has been an ordinary resident in Australia for at least twelve months prior to filing, or is domiciled in Australia.

The actual application form can be downloaded at www.fmc.gov, and may be filed in the Federal Circuit Court in all states and territories. However, in Western Australia your application must be filed in the Family Court of Wester Australia. Should you prefer to have a lawyer apply for a divorce on your behalf, go to www.divorce-online.com.au.

If you and your ex are not filing jointly for divorce, but rather you are unilaterally filing the application, you will need to serve your ex spouse with the following documents.

  • A sealed copy of the application for divorce
  • A copy of the brochure Marriage, Families and Separation
  • The form of acknowledgment of service
  • Copies of any additional documents filed with the court
  • If served by post, a stamped self addressed envelope

There are two ways in which you can effectuate service; you can do so by post, or personally by a person other than yourself who is over the age of 18. If you are serving someone in Australia, you must do so 28 days prior to the hearing date. If service is taking place outside of Australia then it must take place at least 42 days before the hearing. Additionally, if you know your ex spouse is represented by a lawyer, you should check with their lawyer as they may have been instructed to accept service on their client’s behalf.

If you are unable to locate the person you wish to serve, the court can either permit substituted service or dispensation of service. In either case you will need to apply this type of service, and submit an affidavit explaining why the respondent cannot be located. The court will only grant your application if it is satisfied that you have taken the appropriate steps to locate the respondent prior to filing an application for substituted service or dispensation of service.

What happens at the divorce hearing?

Once you have successfully submitted your application for divorce, and served your ex spouse, there will be a hearing. If you filed your application for divorce jointly the hearing will take place within 28 days of filing, otherwise the hearing will take place within 42 days after the filing (56 days if the respondent is not in Australia).

If your application for divorce is successful, the court will issue an order for divorce. This order will automatically take effect one month after the order is granted. Should reconciliation take place after the order is issued but prior to the order taking effect, the court has the discretion to rescind the divorce order.

It is important to bear in mind that your application and hearing for divorce is limited to just that. This is not the venue for you to raise issues regarding support, maintenance, and child support. The court has an interest in making sure that arrangements have been made with regard to any children affected by the divorce, but no matters beyond such arrangements will be raised at the divorce hearing.

De Facto Relationships – The Details

In Australia, the law affords some protection to couples that have chosen not to get married, yet lead the life of a married couple, including same-sex relationships. Whether you chose not go get married out of convenience, or for religious reasons, you can take comfort in knowing that should you separate, you are entitled to similar protection under the law as if you were married.

It is worth noting that the rules regarding de facto relationships may vary slightly depending on the state or territory, so this article will focus on the federal law laid out in the Family Law Act of 1975.

A de facto relationship exists when two people are not legally married to each other, not related by family, and regarding the circumstances of their relationship, they carry on as a couple living together on a genuine domestic basis. In determining whether a de facto relationship exists, the court will look at a myriad of factors laid out in the Family Law Act, including:

  • the duration of the relationship;
  • the nature and extent of their common residence;
  • whether a sexual relationship exists;
  • the degree of financial dependence or interdependence, and any arrangements for financial support;
  • the ownership, use and acquisition of their property;
  • the degree of mutual commitment to a shared life;
  • whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
  • the care and support of children;
  • the reputation and public aspects of the relationship.

In order to receive the benefits awarded to de facto relationships under The Family Law Act, the parties must have engaged in a de facto relationship for at least two years (except if there is a child of the relationship or one party made substantial financial contributions).

Recent Changes – Family Law Amendment Act 2008

The Family Law Amendment Act was given Royal Assent in November of 2008 and greatly impacts de facto couples. The amendment brought these relationships under the purview of the federal law and allows them to be treated the same as married couples. The major change brought about by the amendment is that the financial settlement regime was extended to both same sex and heterosexual de facto relationships.

The amendment allows parties to a de facto relationship to seek declaratory relief in relation to their relationship and property, seek maintenance orders, seek property adjustment orders, and the amendment allows de facto couples to enjoy superannuation splitting and financial agreements.

The amendment does not affect de facto couples whose date of separation came prior to March 1, 2009; those relationships are not subject to the laws of the federal system, and are limited to relief awarded under state and territory laws. The date of separation is the sole determining factor as to whether a de facto relationship is governed by state or federal law. Should your de facto relationship have ended prior to this 2009 date, there is one way you may still have access to the federal law. If you and your partner make an unconditional choice to opt in to the federal legislation, and you satisfy the following elements, your separation can fall under the purview of the federal law.

  1. There must be no current order about property or maintenance.
  2. There must be no agreement between the parties enforceable under the state law in existence.
  3. The parties must consent in writing.
  4. The parties must have received independent legal advice as to the advantages and disadvantages of making the choice.
  5. The parties must have received a signed statement confirming the advice from their lawyer.

Generally, this exception is no longer applicable because The Family Law Act has placed a two-year limitation on the institution of matrimonial causes. So, had your de facto relationship ended before March 1, 2009, but no legal action was filed within two years then you would not be eligible for any relief.

Each of the following subsections highlights the relief available to de facto couples thanks to this 2008 amendment.

De Facto Relationships and Property Settlement

The Family Law Act makes little difference between property settlement amongst formerly married couples, and those who were in a de facto relationship. For all intents and purposes, the courts are to treat property settlement issues for married and de facto couples the same, and the language under the Family Law Act is nearly identical.

For an in depth analysis regarding property division, please see the articles in our property settlement centre. With regard to property settlement issues, just know that there is no real distinction between the way the law treats married couples and those who were in de facto relationships. The way that creditors, bankruptcy trustees, and property orders are treated is practically identical.

De Facto Relationships and Maintenance

Similar to property settlement issues, the way in which de facto relationships are treated with regard to maintenance is identical to the way in which married couples are treated. There are provisions in the Family Law Act that discuss the right to maintenance, power to order maintenance, factors to look at, urgent maintenance, and modification of orders that are almost verbatim for both married and de facto couples. You can find an analysis of all of the rules regarding maintenance in our maintenance center.

De Facto Relationships and Financial Agreements

As you may have guessed, the provisions of the Family Law Act that discuss financial arrangements for married couples is largely the same as the provisions that apply to de facto couples. Parties to a de facto relationship are permitted to enter into financial agreements; the only major distinction being that the agreement will be no longer be binding if a de facto couple later marries. Again, for a more detailed look at the law surrounding financial agreements, please see our property center.

De Facto Relationships and Superannuation

Superannuation splitting is available to de facto couples to the same extent that it is available to married couples. The only noteworthy distinction is that there are more complex provisions regarding the separation declaration for de facto couples than there are for married couples.

As you can see, thanks to the 2008 amendment, if you are involved in a legally recognised de facto relationship, and you subsequently separate, you are entitled to nearly the same relief you would be entitled to had you and your partner married.

Child Custody – The Details

By its very nature, separation and divorce is difficult, emotionally draining, and have a major impact on your life. However, if you have children, this emotional toll is only amplified. Your children may experience a lot of pain as you and your spouse or partner separate and they adjust to a new lifestyle of splitting their time with you and sleeping in two different homes. Because divorce is so hard for children to cope with, the Australian legislature has placed an emphasis on shared parenting and ensuring that both parents continue to play an active role in the lives of their children after separation.

2006 Changes

The largest contributor to this concept of shared parental responsibility came in 2006 in the form of an amendment to the Family Law Act 1975. When passed, this amendment brought about the most significant change to family law in more than thirty years. The main objective of the amendment was to both support and promote the practice of shared parenting and urge parents to reach an agreement with regard to parenting arrangements on their own, without the interference of the courts.

An explanatory memorandum that accompanied the amendment further expressed that the changes were intended to “represent a generational change in family law and aim to bring about a cultural shift in how family separation is managed: away from litigation and towards co-operative parenting.” Through this amendment, Australia took a significant step towards making divorce easier on children.

Not only did the amendment express a desire for parents to reach an agreement on their own, but it also stressed the importance of both parents continuing to take an active role in the parenting of the child. The amendment expresses a desire for parents to jointly share duties and responsibilities, and also for children to be cared for and spend time with both parents.

While this article is designed to give you an in-depth look at how parenting arrangements work, through litigation or otherwise, bear in mind that often the most ideal way to settle a difference is to reach an agreement without involving the court. Children benefit from having both parents involved in their lives, so the best thing you can do for your child is to reach an agreement where each parent has meaningful involvement, and refrain from having your parenting issues heard in court.

Shared Parental Responsibility

The term “parental responsibility” is defined in the Family Law Act as: “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.” This has been understood to mean that parental responsibility encompasses living arrangements, medical treatment, education, religious upbringing, protection from harm, and the responsibility to keep the child safe among other things.

You may be wondering, what exactly did the legislature mean when it expressed a preference for shared parental responsibility? Does that mean the child should spend equal time with each parent? Should each parent spend equal money on the child? Should each be allowed to make decisions about the child’s religion, schooling, and extra-curricular activities? Generally speaking, the answer is yes.

Australia’s preference for shared parental responsibility means that both parents should have involvement in the child’s life, make decisions with regard to the child’s upbringing, and contribute to the general welfare and needs of the child. The courts will not allocate or assign responsibilities unless disputes arise that the parents are unable to resolve. Furthermore, should a court order be silent with regard to parental responsibility, both parents are to retain the responsibility.

As you can see, Australia has a strong preference for parents to share in the upbringing of the child, despite separation or divorce, and the courts are reluctant to make decisions regarding specific parental responsibilities. The Amendment discussed above in fact created a rebuttable presumption that it is in the best interest of the child to have both parents share equally in their responsibility, care, and upbringing.

It should not come as a surprise that very rarely do the courts take action to limit the parental responsibility of a parent, it takes extreme circumstances affecting the welfare of the child for the court to intervene and do such. Specifically, the rebuttable presumption discussed above is only abandoned where there is a threat of abuse, violence, or if allowing the parent to have control over the child is contrary to the child’s best interests.

Equal Time

Sometimes the concept of shared parental responsibility can be difficult when it comes to how much time the child spends with each parent. Equal time is often harder to organize than equal responsibility with regard to general decision-making, education, and religion. Allowing each parent to have equal time can raise logistical issues, which the court has addressed.

While there is a rebuttable presumption that equal shared parental responsibility is in the best interest of the child, there is no presumption with regard to the amount of time each parent has with the child. Before the court will issue an order allowing for equal time to be shared by the parents, it must first determine that such an arrangement is in the child’s best interest and reasonably practical.

There are advantages and disadvantages to allowing your child to spend equal time with you and your former spouse or partner. Each child is different and will respond differently to a divorce, and should you need a court order determining custody, the court will consider both the child’s interests as well as whether splitting time equally is reasonably practical. When determining whether equal time is reasonably practical the court will consider the following factors:

  • how far apart the parents live to form each other
  • the parent’s current and future capacity to implement an arrangement for the child to spend equal time, or substantial and significant time, with each of the parents
  • the parent’s current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind
  • the impact that an arrangement of that kind would have on the child
  • such other matters as the court consider relevant

As you may have guessed, courts rarely grant parenting orders allowing for equal time. While the best interest of the child is paramount to the court’s decision, it also considers the practicability of the order, and more often than not equal time is not found to be reasonably practicable.

Day-to-Day Decisions

Generally speaking, the parent who has the child in their care is responsible for the day-to-day decisions – like what the child eats, wears, when the child goes to bed, and what activities the child does. These day-to-day decisions can be made unilaterally, without consulting the other parent. However, the big decisions, otherwise known as “major long-term issues” are to be decided by both parents. The Family Law Act has enumerated certain issues that fall into the major long-term category, they include but are not limited to: education, religion/cultural upbringing, health, name, and living arrangements.

What happens first?

We have discussed how Australia’s preference for shared parental responsibility and for settling matters without litigation, so you may be wondering how the process works, and what happens first? This article will discuss the non-litigious ways to reach an agreement before discussing how parenting litigation works.

Step one to reaching a parenting agreement is to participate in something called family dispute resolution (otherwise known as alternative dispute resolution). All courts require compliance with primary dispute resolution, and you must obtain a certificate from a family dispute resolution practitioner prior to filing for a parenting order. The purpose of required family dispute resolution is to encourage early and full disclosure of relevant information, and allow parties to engage in a process that not only avoids legal action but also minimizes cost.

While participating in family dispute resolution, the focus of the parties is to be upon the best interest of the child, and parties should be open to negotiation, arbitration, and counseling.

Unless you can show good reason for not having followed the family dispute resolution requirement, non-compliance can result in serious cost consequences. There are only several exceptions to this requirement that excuse you from having to file a certificate from a family dispute resolution practitioner. The major exception is where the court finds that there has been or is a risk of abuse or family violence of the child. While there are several other exceptions, keep in mind that should you fail to comply with this requirement, it could cost you.

Family Relationship Centers and Family Advice Line

As part of the push to get families to reach agreements with regard to parenting issues without resorting to litigation, the government introduced both Family Relationship Centers and a Family Relationship Advice Line. Both programs are government sanctioned and designed to encourage parties to resolve disputes and enter into parenting plans.

The purpose of the Family Relationship Centers (FRCs) is to allow parents to reach workable arrangements for their children with the help of FRC staff. The staff members are not only trained in how to give advice concerning disputes but also are trained in identifying issues of family violence and abuse. Furthermore, while the staff does not administer legal advice, it has the ability to place parties in communication with Legal Aid and private practitioners to obtain the legal advice they need.

The Family Advice Line is available from 8 am to 8 pm Monday through Friday, 10 am to 4 pm on Saturdays and can be reached at 1800 050 321. Not only is this service available to the parents, but also is available for grandparents, stepparents, children and friends.

The purpose of the Family Advice Line is to provide information about the family law system, separation, how to maintain relationships, and the impact of conflict on children among other things. This service is free, and may remain anonymous should you choose to keep your identity unknown.

Other Methods of Dispute Resolution

Mediation is another type of dispute resolution that doesn’t involve the courts. The benefits to choosing mediation are that it can be less expensive than litigation, your case can be heard sooner than it could in Family Court, and the parties have greater control over the process.

Collaborative law is another option for dispute resolution and allows for parties and lawyers to meet in four-way meetings. This allows the parties to stay directly involved in the communication and negotiations. A major distinction with collaborative law is that the parties and lawyers agree in advance not to go to court.

Parenting Orders

After you have attended mandatory family dispute resolution and come to an agreement, you may apply to the court for a parenting order. Any person concerned with the child’s welfare may submit an application for a parenting order however in most cases, it is a parent, the child, or a grandparent who is seeking such an order.

With regard to parenting orders, the emphasis is on the best interest of the child. The court considers this to be the “paramount principle.” The primary considerations viewed by the court are allowing the child to have a meaningful relationship with both parents and also to protect the child from violence, abuse, and/or neglect. The court will also give consideration to a myriad of other factors, including the events that have occurred since separation.

After considering all relevant factors, the court can issue a parenting order that discusses parental responsibility, with whom the child will live, how much time the child spends with each parent, and how much communication the child has with each parent.

If you would like to modify a parenting order after it has been issued, you should first seek the assistance of a lawyer. Only if you are still unable to reach an agreement should you apply to the court for further help. At this point, the court can order both parents to attend a parenting program, or it can consider varying the order.

Non-Compliance and Parenting Orders

You should avoid breaching a parenting order at all costs; the court takes breaches of its orders very seriously and you could even potentially face goal time upon breach.

Australia has adopted a three-stage approach designed to both educate parents as well as impose sanctions when noncompliance occurs. Stage one addresses educating the parents about the nature and effect of parenting orders. Stage two is invoked upon the first breach of a parenting order, and requires the breaching party to attend an approved parenting course. When there are subsequent breaches, stage three permits the court to impose serious sanctions such as fines or imprisonment.

Parenting Plan

A parenting plan is a written document discussing any agreements reached between parties with regard to matters affecting their children. They differ from parenting orders in that they do not require the court’s involvement; they are simply informal agreements reached by the parties.

A parenting plan should detail the responsibilities and rights of both parents and its aim should be to create an arrangement in the best interest of the child. A parenting plan should include a breakdown of time that each parent is to spend with the child, discuss where the child will spend holidays, payments for the child’s expenses, and any other aspect of the care, welfare or development of the child.

The court will refuse to grant a divorce order unless it is satisfied that proper parenting arrangements are in place, and if the parties are unable to provide a plan the court will do it for them.

While it is permissible (and usually recommended) that parents agree to a parenting plan on their own, should this not be an option in your situation then you can resort to the other methods of dispute resolution we have discussed.

It is possible to have both a valid parenting plan and a valid parenting order. Typically, this situation arises when the order discusses significant topics (such as where the child will live) while the parenting plan manages the more intricate issues (for instance, how the child should be disciplined).

A major distinction between a parenting plan and a parenting order is that a parenting plan is not enforceable; it cannot be registered by the court and parties in breach of a parenting plan are not subject to the same sanctions as parties breaching a parenting order. For further discussion addressing the differences between a parenting plan and a parenting order, please see our FAQ that tackles this issue.

Independent Children’s Lawyer

In some cases, it is necessary to appoint an independent child’s lawyer (ICL) to represent the child’s interest. Parties can request this, or the court may appoint an ICL on its own initiative. In determining whether this appointment is necessary the court will consider a myriad of factors, including but not limited to: allegations of child abuse, a conflict between parties, issues of cultural or religious differences, sexual preferences of the parties, mental illness, and the proposed separation of siblings.

The role of the ICL is not to be the child’s legal representative, but rather to act as an “honest broker” throughout the legal proceedings. An ICL is charged with the task of forming an independent view of the evidence and acting in the best interest of the child. The presence of an ICL should minimize the trauma to the child and facilitate an agreed resolution of matters in the best interest of the child.

Any information that a child shares with an ICL is deemed to be confidential unless the ICL considers disclosure to be in the best interest of the child.

What the Child Wants 

Undoubtedly a child will form an opinion about where they want to live and whom they want to live with throughout your separation and divorce. A frequent question that arises is whether the child’s wishes are considered when determining custody arrangements.

A child is not required to disclose their wishes, however the court is required to consider their views should they choose to express them. The court will balance the child’s view with their age and degree of maturity before determining how much credibility to give the child.

Court Proceedings

It is clear that the preference in Australia is for parties to reach agreements with regard to parenting and custody issues without involving the court. However, this is not ideal in every situation. Some separations and divorces are particularly contentious, some involve issues of violence, and other times the parties simply can’t reach an agreement using dispute resolution. Should that happen, there are certain rules in place to protect children if their parents end up litigating child-related issues

The court takes on several principle roles when it comes to child-related proceedings. First, during the proceedings, the court is to consider both the needs of the child and the impact that the proceedings may have on the child. Essentially, the court’s role is to minimize any trauma experienced by the child throughout the proceedings. The court is charged with actively directing, controlling and managing the conduct of the proceedings. Additionally, the court is to conduct proceedings in a manner that will protect the child from violence or abuse, promote cooperative child-focused parenting, and reduce delays, formality, and legal technicality.

Additionally, there are certain logistical things the court can do to help protect the child. For instance, the court is required to address as many irrelevant issues as possible on one occasion, which shortens the overall proceedings and lessens the impact on the child. Also, the court may schedule hearing dates close to each other so that the child will not be impacted by lengthy times between hearing dates. The court can also limit the number of witnesses used, and the technology used, and again, encourage the parties to use dispute resolution services.

Another question that often arises when parties must litigate matters concerns the evidence that may be shown. The most common types of evidence are as follows:

  • application and affidavit of the parties
  • expert affidavit
  • oral evidence (testimony)
  • testimony/reports from an independent children’s lawyer
  • family consultant’s report

While litigation is certainly an option for parties dealing with custody issues, it is clear that the preference is for parents to reach an amicable agreement by way of a parenting agreement or a parenting order achieved through dispute resolution.

Child Support Enforcement and Collection

1988 Changes

 Australia has come a long way when it comes to child support enforcement. In 1988, les than 30% of child maintenance was paid, and in response, Australia passed the Child Support (Registration and Collection) Act. This required child support obligations to be registered, and thus become a debt to the Commonwealth. Prior to making this change, child support collection was a major issue for many Australians.

The legislation was passed in hopes of ensuring that children receive child support on a regular and timely basis. Fortunately, since the Act was passed non-payment issues have decreased significantly.

Registration

Child support, child maintenance, and spousal maintenance may all be registered for collection. Once registered, and the details entered into the child support register, the Child Support Agency (CSA) may enforce payment. When payment is not timely, the CSA reserves the right to impose penalties, which are retained by the CSA and not given to the payee.

This registration process is how the liability becomes a debt to the Commonwealth, and thus enforceable by the CSA. The CSA can enforce child support using the traditional court enforcement process.

Enforcement

A payee may enforce child support payments even if the debt has been registered for collection. As long as the payee notifies the Registrar in writing, 14 days before instituting the proceeding, the payee may sue and recover the debt due. A shorter notice period may be appropriate if there are exceptional circumstances.

Alternatively, the CSA may use the Federal Magistrates Court to enforce child support payments. Under these proceedings the court is not permitted to vary the child support liability or remit any penalties, the proceedings are strictly intended to be enforcement summons. The court is charged with the task of making an inquiry into the financial circumstances of the payer, and subsequently assessing his or her ability to pay the arrears.

Once the debt has been proved, the court may enforce the payment through a variety of methods, including garnishment, seizure of property, sequestration of the estate, sale of an interest in real property, or any other method necessary.

Collection Methods

The CSA has several methods it may use to enforce the collection of child support payments. They are as follows.

  1. Auto-withholding. Under this method, payments owed are deducted from the payer’s salary directly by the employer.  Payers of child support may be averse to this sort of collection, as they would rather not share their child support liability with their employer, however it is considered an offense for an employer to discriminate based on such.
  2. Attachment of debts. The CSA has the authority to attach debts owed to the payer, including a tax refund. They may do this after first issuing a notice to the debtor (one owing to the payer money).
  3. Departure prohibition orders. Such orders prevent payers owing money from leaving the country.

In sum, there are several ways in which you can ensure any child support obligation due to your child will be paid. Thanks to the legislation passed in 1988, non-payment issues have been on the decline as it provides easy and effective ways to enforce and collect payments owed.

Determining Paternity and the Impact on Child Support

The issue of paternity can sometimes present problems for a party who is seeking child support from someone who is claiming not to be the father of the child. While the court does not have the power to order paternity testing simply to satisfy doubts of a parent, the court may order such testing where the parentage of a child has been at issue in proceedings. There must be some evidence that places the issue of paternity in question before the court will order testing.

If paternity is disputed in your case, you may make an application directly to the court seeking a declaration. If the parties have not agreed to parentage testing, the court will order the parties to do so in order to resolve the issue and make a declaration.

Once paternity has been determined, either through parentage testing or by the court’s determination, the court may make a declaration of parentage that is considered conclusive and binding for all future hearings. Additionally, upon establishing parentage, a party may seek child support through the regular process.

Impact on Child Support

Paternity tends to be at issue in child support disputes more than any other area in family law. The reason for this is that the Family Law Act provides that only a “parent” may be liable to pay child support. It may come as a surprise, but determining if someone is a “parent” by definition is often difficult. Recent cases have addressed the complexity of determining parentage in same-sex couples, as well as couples who use artificial conception.

Unfortunately, because only a parent is liable for child support, it is not uncommon for an alleged father to dispute paternity in hopes of avoiding this liability. The Family Law Act has provided a list of circumstances in which paternity can be assumed, however, the challenging party may still dispute the assumption.

Paternity is to be assumed by the Child Support Agency where the birth certificate names the father if the child was born during a marriage, the person’s name is found in a register of births, a court has found that the person is the parent, the person has executed an instrument acknowledging parentage, or the child has been adopted by the person.

Who can be ordered to undergo testing?

Anyone who is at least eighteen years old may be asked to undergo parentage testing, regardless of whether they are a party to the proceedings. The court is granted broad discretion in this area and may order anyone whom it believes could aid in determining the parentage of the child to undergo testing.

Should the party asked to take a paternity test to be less than eighteen years old, his parent or guardian will have to provide consent. If the parent or guardian fails to provide consent, this action alone could have an impact on the case. In a situation where the parent or guardian refuses to consent to the testing, the court is permitted to draw conclusions as it sees fit. Refusal, however, is not automatic grounds for the court to conclude paternity; the court is still required to consider the circumstances for the refusal, such as religious or cultural reasons.

Methods of Testing

There are several ways to test parentage. Provisions in the Family Law Act discuss in detail the procedures to be followed in prescribing a parentage test; the methods range from blood group testing to genetic fingerprinting. The court is given discretion with regard to this testing and may impose any terms or conditions it sees fit, including requiring a person to submit to a medical procedure, provide a bodily sample, or disclose a medical or family history.

DNA testing formerly required a blood sample, however now the kit can be completed by using a swab from the inside of the cheek. DNA testing is both painless and accurate, typically showing a probability of parentage of at least 95%.

An accredited laboratory must carry out the test, and a list of those laboratories can be found at www.nata.asn.au.

Non-Paternity: Recovering Child Support 

The Family Law Act permits the court to make just and equitable orders if child support applications have been paid by a person declared not to be the father. The court will consider a myriad of factors, including whether either party knew or should have known that the payer was not the parent, the relationship between the payer and the child, and the financial circumstances of both the payee and payer among other factors.

How is child support calculated?

A formula is used. The formula incorporates the obligation of both parents to contribute to their children to the extent that they are able to do so. The results of research on the costs of raising children are also included. For a detailed explanation of how child support is calculated in Australia, please read our extensive article on Australian child support calculations.

Divorce Lawyers in Melbourne

Mathews Family Law and Mediation Services were established more than fourteen years ago as a boutique family law firm. Our offices are located in the inner Melbourne suburb of Toorak.

Our team of lawyers is experts in Family Law and Family Law Mediation. We have extensive experience and knowledge that allow us to provide an integrated approach to the complex range of issues faced by our clients. We are in a unique position whereby our family dispute resolution practitioners (FDRP) and mediators have also accredited family law experts; this ensures we bring a higher level of expertise to all our mediations.

Unlike many other family law firms, Mathews Family Law has a genuine commitment to alternative dispute resolution. This commitment is evident in the diverse range of dispute resolution options and services we offer that clients are unlikely to find anywhere else

Top Divorce Lawyers in Australia

We are passionate and dedicated to providing the best possible Family Law service in Melbourne. We have worked hard to gain expertise in all areas of family law, including complex international parenting and financial matters.

We can guide you through a wide range of issues related to legal separation in Australia. This commitment ensures we are at the forefront of family law developments in Melbourne. Vanessa Mathews was one of the first accredited family law specialists also to become accredited as an FDRP and Mediator. The Mathews Family Law team continues to provide professional development services for accountants, financial advisors and mental health professionals. We are vigorously committed to continuing to provide community service for a wide range of new initiatives. We provide all the personal service you expect of a boutique law firm with all the experience and knowledge you expect to find in a larger firm.

A firm with a strategic vision and the leadership to effect change in culture, strategy and business growth.

Mathews Family Law’s vision has always been to provide affordable access to the highest quality family law services and essential legal information. We have embraced the use of technology to support this goal. By using online platforms, Mathews Family Law can reach a much wider audience (including overseas), vastly improving the efficiency of our internal processes which results in a decrease in costs to our clients.

Via our website and Facebook page, we offer an extensive library of free explanatory videos, Facebook live recordings, downloadable e-books, radio interviews and blog articles. A valuable resource for those seeking detailed information on the public’s most frequently searched topics.

In 2011, MFL pioneered online divorce applications with www.divorce-online.com.au. and has since developed its web-based family law pathway. This process allows clients to enter their details online and obtain a personalized preliminary report, free of charge. Should the client engage the firm, this background information is used to prepare for the initial meeting with the client’s data automatically populated into various documents.

Other recent IT enhancements include interactive online forms, options to attend meetings, mediation and FDR via webcast, online payment portals and handy calculators.

All our clients benefit from clear, fully itemized invoices and trust statements with every interim invoice along with pre-payment of disbursements.

Although a boutique law firm, Mathews Family Law can offer the full breadth of family law services that all clients desire. Our clients are not left having to consult across multiple organizations to get the outcome they desire. Our services include the full range of family law dispute resolution services; such as negotiation, mediation, FDR and litigation.

MFL can also provide a secondary consultation role with institutional clients and allied professionals; this includes Relationships Australia, CatholicCare and CPAs/IPAs.

MFL is continually seeking to improve its services and enhance its performance. The firm’s principal, Vanessa Mathews, regularly consults with external experts to review the firm’s strategy, structure and operations and never shies away from creating new processes and adopting change.

Mathews Family Law Accreditations and Associations.

  • Accredited by the Law Institute of Victoria
  • Members of the Law Institute of Victoria, Family Law Section
  • Members of the Law Council of Australia, Family Law Specialization Advisory Committee
  • Members of Relationships Australian Family Lawyers Panel
  • Fellow of the International Academy of Family Lawyers

FDRPs and Mediators at Mathews Family Law are:

  • Accredited by the Attorney General of Australia
  • Accredited by the National Mediation Accreditation system
  • Members of the Australian Institute of Family Law Arbitrators and Mediators
  • Members of the Resolution Institute
  • Members of the Relationships Australia ‘Access Resolve’ Property Mediation Program

Divorce Law in Australia

Divorce law in Victoria is the same as in other states in Australia (except Western Australia). The Family Law Act (1975) applies to all Australian states and territories except Western Australia. A judge deciding on a parenting or financial matter will follow the same rules, procedures and legislation to make their decision. The unification of laws across all the states (except Western Australia) means that Family Court orders obtained in one part of Australia will be enforceable anywhere else in Australia. The child support legislation also applies in Melbourne & across Australia. Intervention orders are also recognized and enforceable across state and territory borders.

Under Australian Law, you can apply for divorce after separating for at least one year. The Family Law Act (1976) instigated the ‘no-fault’ system of divorce in Australia. The only condition required is that the marriage has irretrievably broken down. The facts about who is responsible for the breakdown of the marriage are not relevant. If dependent children under the age of eighteen are involved, a divorce will only be granted by the court if proper arrangements have been made for their welfare. If you have any queries about divorce law in Australia, get in touch with us.

Some Common Family Law Myths

That the mother is favored in parenting matters:

There is no presumption that a mother or father is a ‘better’ parent. The child’s ‘best interests are the paramount consideration.

That same-sex parents are treated differently from opposite-sex parenting matters.

There is no sexuality-based presumption or laws that are applied to same-sex parents. Again, the child’s ‘best interests is the paramount consideration.

The children will live 50/50 with each parent

There is no ‘one size fits all’ parenting presumption. The child’s ‘best interests are the paramount consideration.

The asset pool will be divided 50/50.

There is no ‘50/50’ asset division presumption. The asset pool will be divided according to the particular circumstances of each case, including the various contributions made by each of the parties and their future needs.

I have to be divorced before I can apply for a property settlement.

No, you may apply for a property settlement any time after separation and before the divorce (and up to 12 months after divorce).

Pre-marriage agreements are not worth the paper they’re written on

‘Pre-nups’ are enforceable provided they have been prepared in accordance with the strict legislative requirements.

I don’t live with my partner full time so we are not in a de facto relationship

The amount of time you live with your partner is not the only criteria the court will consider when determining if a de facto relationship existed. A de facto relationship may be found to have existed where the parties lived with each other on a part-time basis only.

Experienced Divorce Lawyers in Melbourne Who Take Their Corporate Social Responsibility Seriously

Mathews Family Law firmly believes in its corporate social responsibility. We also believe that corporate social responsibility is best demonstrated via actions rather than words. The firm’s Principal, Vanessa Mathews, has a Degree in Social Work from Melbourne University. She is passionate about providing low-cost and pro-bono access to information and justice. Ensuring every demographic in the community is well supported and has access to expert Family Law advice.

MFL maintains four content-rich websites, with informative videos, a Family Law Library of articles and videos, online calculators, chat and applications processes, all provided free of charge. Regular Facebook Live videos, e-newsletters and other social media posts also disseminate valuable information at no cost, and through channels that are easy to access by the wider public.

We also have several other measures that provide affordable access to the firm’s services – free initial telephone consultations, reduced fixed-fee initial consultations, fixed-price services and a choice of unbundled or full-service delivery options.

MFL is involved in the LIV Referral Service and provides education to other professionals. We actively work to create a strong Family Law community, with representatives participating in the following organizations: Relationships Australia Family Lawyers Panel; LIV Specialist Committee; International Academy of Family Lawyers.

Award Winning Melbourne Family Lawyers

Mathews Family Law is a multi-award-winning family law firm operating out of the Melbourne inner suburb of Toorak. Some of the recent awards won by the firm include:

  • Winner – Boutique Family Law Firm of the year in Australia, Global Law Experts
  • Winner – Family Law Mediator of the year in Australia, Global Law Experts
  • Finalist – Law Institute of Victoria ‘Boutique Law Firm of the Year Award’
  • Recommended – Family Law Firm, Doyles Guide
  • Recommended – Family Law Mediator, Doyles Guide
  • Leading – Parenting Lawyer, Doyles Guide
  • Number One – Family Law Firm on ‘Three Best Rated’

If you are looking for Melbourne’s best family lawyers look no further than Mathews Family Law, Book a Free consultation today to start the process.

What if we reach an agreement?

The court imposes mandatory dispute resolution prior to applying to the court for child related matters in hopes that couples are able to resolve their issues and reach an agreement on their own terms.

Some couples will fall short of this goal and will have to resort to litigation to reach an agreement. However, some couples will succeed and, viola! The dispute resolution will have been effective and agreement, which once seemed impossible, has occurred.

So what happens once you reach an agreement?

The details of the agreement can be recorded in a parenting plan, which can be renegotiated over time. The agreement must be written, dated, and both parties must sign it in order for it to be valid. If you intend to make this plan permanent and final, you can subsequently apply to the court to have the agreement made into a consent order, in which case it becomes legally binding.

Bear in mind that changes made in your parenting plan may in turn have an affect on child support, income support, and family assistance payments. Also, if your parenting plan dictates an amount for child support, the Child Support Agency has the authority to enforce the agreement.

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Vanessa Mathews
Managing Director FDRP and Mediator
BCOMM BSW LLB

Accredited Family Law Specialist, FDRP,
Mediator and Parenting Coordinator

Vanessa Mathews is the founder and managing director of Mathews Family Law & Mediation Specialists, and has the rare combination of social work qualifications and experience, combined with nearly 20 years’ experience as a lawyer and mediator; it makes her approach to resolving legal relationship issues both sensible and sensitive.

She is a fully accredited family law specialist, mediator, family dispute resolution practitioner and parenting coordinator with a commerce degree – adding a financially astute aspect to her practice.

Vanessa has extensive experience in complex issues that arise from relationship breakdown, and works in partnership with her clients,
who regularly describe her as empathetic

Vanessa is an active member of the family law profession and
a member of the:

  •  Law Institute of Victoria, Family Law Section
  •  Law Council of Australia, Family Law Section
  •  Resolution Institute
  •  Australian Institute of Family Law Arbitrators and Mediators
  • National Mediation Accreditation System
  •  Relationships Australia Family Lawyers Panel
  • Fellow of the International Academy of Family Lawyers
  •  Relationships Australia / Federal Circuit Court ‘Access Resolve’ Mediation Service
  • Relationships Australia ‘Property Mediation’ Service

Vanessa and Mathews Family Law & Mediation Specialists
are regularly recognised as a ‘Leading Victorian Family
Lawyer’, ‘Recommended Family Law Mediator’ and a
‘Leading Victorian Family Law Firm’ by Doyle’s Guide to
the Australian Legal Profession.

Get Started With Vanessa

Book A Free Consult

Vanessa Mathews
Managing Director FDRP and Mediator
BCOMM BSW LLB

Accredited Family Law Specialist, FDRP,
Mediator and Parenting Coordinator

Vanessa Mathews is the founder and managing director of Mathews Family Law & Mediation Specialists, and has the rare combination of social work qualifications and experience, combined with nearly 20 years’ experience as a lawyer and mediator; it makes her approach to resolving legal relationship issues both sensible and sensitive.

She is a fully accredited family law specialist, mediator, family dispute resolution practitioner and parenting coordinator with a commerce degree – adding a financially astute aspect to her practice.

Vanessa has extensive experience in complex issues that arise from relationship breakdown, and works in partnership with her clients,
who regularly describe her as empathetic

Vanessa is an active member of the family law profession and
a member of the:

  •  Law Institute of Victoria, Family Law Section
  •  Law Council of Australia, Family Law Section
  •  Resolution Institute
  •  Australian Institute of Family Law Arbitrators and Mediators
  • National Mediation Accreditation System
  •  Relationships Australia Family Lawyers Panel
  • Fellow of the International Academy of Family Lawyers
  •  Relationships Australia / Federal Circuit Court ‘Access Resolve’ Mediation Service
  • Relationships Australia ‘Property Mediation’ Service

Vanessa and Mathews Family Law & Mediation Specialists
are regularly recognised as a ‘Leading Victorian Family
Lawyer’, ‘Recommended Family Law Mediator’ and a
‘Leading Victorian Family Law Firm’ by Doyle’s Guide to
the Australian Legal Profession.

Get Started With Vanessa

Book A Free Consult