Financial agreements are binding and enforceable, but only if they are made in a way that follows the procedures required by the Family Law Act.

Financial agreements describe how the property and financial resources are to be divided between the parties if they separate. The agreement may provide for the maintenance of one or both parties.

The agreement must be in writing and signed by each of the parties. It is necessary for each party to have obtained independent legal advice before signing the agreement.

Financial agreements can be terminated by written consent or set aside by a court.

Both you and your ex-partner are entitled to live in your home after separation regardless of whose name is on the title. You cannot be forced to leave just because the property is not in your name. The only way you can be forced to leave is if the Court orders it.

If you do have to move out, it will not affect your property entitlement. Your rights continue even if you leave. If you fear violence, you should seek advice immediately.

Sometimes one party may seek a sole occupancy order which requires the other party to leave. This allows the remaining spouse to live in the house until the property is divided. This order will usually only be made in exceptional situations where there is domestic violence, threats are being made or if the house has been adjusted because somebody has a disability.

The Family Law Act provides for binding financial agreements to be made between parties to a marriage, a de facto relationship, or a same-sex couple. These agreements can be made before, during or after the end of the marriage or relationship. Parties entering into a relationship agree on what will happen in the event that they separate. Parties entering into a second relationship or with substantial assets often like the protection of a financial agreement.

Step 1 – identifying and valuing the assets, liabilities and financial resources of the parties.

Step 2 – assessment of the contributions made by the parties during their relationship.

Step 3 – assessing the future needs of each of the parties.

Step 4 – decide if the proposed division of property fair to both parties.

Spousal, de facto or same sex couple periodic maintenance may be paid when one party has the financial capacity to pay and when the other party is unable to financially support himself or herself adequately.

In determining whether or not periodic maintenance is paid, each party’s financial income and commitments are assessed.

There is a competing obligation upon the courts to ensure that, as far as practicable, any orders made finally determine the financial relationships between the parties. As a result, there is a tendency for periodic maintenance orders to be for a shorter duration.

In addition to the assets and liabilities of the relationship, financial and non-financial contributions, other considerations such as future needs, income earning capacity as well as maintenance concerns will be taken into account when determining a property settlement.

Carol and her school-aged daughter Emily moved to Australia from the United States. Emily settled into school and Carol started in a new job which was a major promotion and pay rise. Meanwhile, unbeknown to Carol, Emily’s father sought and was granted custody of Emily through a Court in the USA. The Court ordered Emily to return to live in the USA. To her surprise, Carol was also told that if she accompanied Emily to the USA it was highly likely she would be arrested and imprisoned. Emily was very upset and confided in her teacher that she was very happy in Australia and wanted to stay with her mother. A timely application to the Australian Family Court enabled Emily to stay with her mother in Australia.

[Case: Emily avoids being returned to the USA]

Peter and Claudia were a fantastic father and daughter team, they spent many hours discussing their favourite sports. Peter was deeply involved with Claudia’s home schooling. He lived with Claudia and her mother. One night, though, Peter returned home from shopping to discover both Claudia and her mother were gone. An urgent application was made to the Family Court of Australia and the Australian Federal Police found Claudia safe in West Australia and a few days later she was home safe and sound with her dad. Peter and Claudia continue to spend many happy hours together today.

If the other parent breaches an order affecting your children, you can:

• use mediation to resolve the problem or
• apply to the Court that the other party has contravened the parenting order.

The Court takes breaches of its orders very seriously. The breaching parent can:

• be referred to a parenting program;
• fined; or
• made to provide “catch up” time.

The breaching parent may show a reasonable excuse. For example, a very sick child may be considered a legitimate reason.

If the orders breached are no longer workable, the Court may order that both parents attend a parenting program, or adjourn the case to consider varying the orders.

Unless your case involves family violence, child abuse or is urgent, family dispute resolution is required before court proceedings about children can commence.

The Court will usually appoint a family consultant to assist and advise parties.

The Court must consider the needs of the child and the impact of the proceedings on the child. The Court must conduct the proceedings so that the child is safeguarded from family violence and abuse. The proceedings should intend to promote cooperative and child focused parenting and should avoid delay and formality.