Caring Family Lawyers Sydney
Dedicated Family Law & Child Protection Specialists
Caring Family Lawyers Sydney
Dedicated Family Law & Child Protection Specialists
Caring Family Lawyers Sydney
Dedicated Family Law & Child Protection Specialists
Our family lawyers Sydney based, ensure you’re best represented in all family matters. The SCB Legal family law team is very patient and empathetic, having managed a myriad of cases with specialised knowledge and the utmost care.
We know how emotionally taxing family issues are and it’s our calm demeanours that will make you feel more at ease. When in the middle of an arduous period, you can rely on our solicitors to help you traverse the law pertaining to family. We are highly experienced and make sure everything is explained simply and clearly, removing the legal jargon for you.
Child protection matters are extremely sensitive and we are well versed in the complexities and complications that unfortunately arise. It is our unwavering commitment and dedication to our clients that often results in our family law experts making themselves contactable outside of normal business hours.
One of the things on which we pride ourselves is that we treat all people equally. Irrespective of your religion, sexual preference, financial standing, culture, age, marital status, we are dedicated to helping you find the best possible outcome concerning your family law matters.
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Australian Same-Sex Marriage Laws
SCB Legal is elated that Australian law has finally recognised gay marriages. Today, issues that gay couples were previously unaffected by, have become pressing issues. With progress comes responsibility and that’s why we are committed to assisting the LGBT community with the many issues that present themselves.
It’s important to note, that irrespective of one’s sexual preference, the same societal issues affect us all. This is why and especially for younger gay couples, it’s imperative that you know your rights and have a law firm that is aware of the issues that can affect you.
For further information read our blog entitled 7 Important legal things about same-sex marriage Australia.
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Family Law Matters
Questions & Answers
The SCB Legal team wanted to share some of the most common family law related questions, to help you best understand various legal matters.
The following are some of our frequently asked family law questions.
What Is A Prenuptial Agreement?
A prenuptial agreement, or a Binding Financial Agreement (BFA), is a legally binding agreement between two people who are planning to live together either as a married or de facto couple.
This agreement addresses what will happen in the event that the relationship dissolves via separation or divorce. It outlines the couple’s finances and property and explains how they will be divided between the two people.
A prenuptial agreement can include things such as cash, real estate, superannuation, businesses, investments, inheritances and can also include obligations to pay any debts or liabilities borne out of the relationship.
Can A Prenuptial Agreement Be Overturned?
The Family Court can overturn a prenuptial agreement if it believes that:
- The agreement was obtained and signed fraudulently such as failing to disclose all assets
- The binding requirements of a prenuptial agreement were not met, such as not seeking independent legal advice
- A party to the prenuptial agreement has been involved in any sort of unconscionable conduct in the process of drafting or signing the agreement.
If the Court questions the validity of the agreement, it has the power to make an order for interest payable under the agreement or to award damages. It may also order the termination of the agreement or enforce that all or part of the agreement be enforced, as if it was an order of the Court. Depending on the circumstances, the Court may also override a prenuptial agreement if there are significant changes such as large contributions, children, divorce etc.
What Is The Process For Getting A Divorce?
When you first split from your partner, there are no documents to sign and you don’t need to register the separation. If you want to formally end a legal marriage, you must apply for a divorce and this can only be done once you have been separated for at least 12 months before the application is submitted.
A divorce will legally end your marriage but it will not address other matters such as the division of property and issues pertaining to children.
While you can only apply for a divorce after being separated for 12 months, you can begin attending to property and kids’ matters as soon as the marriage has broken down. Many matters of this nature can be dealt with before you file the divorce application.
What Is An Affidavit?
An affidavit is a written statement prepared by a witness and is the primary way in which evidence is presented to the Court. It must prove that there has been a change in the relationship and that you and your spouse have separated. This includes:
- explaining any changes in sleeping arrangements
- reduction of family activities or shared outings
- division of finances (i.e. separating bank accounts)
- any other matters that prove the marriage has broken down, such as telling friends and family about the separation and when it occurred
You must explain why you continued to live with the person even though you had separated as a couple. Additionally, whether or not you have any intention of changing these living arrangements in the future.
You will also need to include a list of all government departments you advised of your separation. For example, if you receive a Centrelink benefit or pay child support, you must advise them of any relationship changes.
Separation, Living Under One Roof
Separation that occurs under one roof is when a couple separate but continue living together in the same home. This can be for days, weeks or years following the separation.
If you are filing for a divorce but have been living with your spouse for all or part of the required 12 months’ separation period, you are required to provide additional information before applying. This information includes an affidavit that confirms the existence of the separation, regardless of your living arrangements.
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Filing For Divorce On Your Own
If you are applying for divorce on your own, you must file the affidavit yourself. An affidavit should also be included from another independent person, such as a family member, friend or neighbour.
Filing For Divorce As A Couple
If you and your spouse are applying for a divorce together, you must each file a separate affidavit. If only one person in the couple is able to file an affidavit, another should be obtained by an independent person, such as a family member. Any person that writes an affidavit must include as much information as they can regarding the separation in an honest and factual manner.
Division of Property, Assets and Children
What Legal Matters Pertain To Property After Divorce Is Granted?
Once a divorce is granted, there are a number of issues that must be addressed. These include:
- Property and assets
- Debts and liabilities
It’s important to remember that these issues can be dealt with even before you consider filing for divorce.
Dealing With Property After A Divorce
How you tackle property issues depends on whether or not both parties agree to how the property should be divided.
If both parties agree to the property arrangements, it greatly reduces their financial and legal costs. In addition, it facilitates a civil and amicable outcome, which is especially advantageous when children are involved.
You can formalise your agreement without any court action. You must prepare a financial agreement or formalised agreement by applying for consent orders. These orders request that a court decides the terms of your agreement. These arrangements can be made before, during or after a marriage.
For a financial agreement to be legally binding, both parties must have signed the agreement and received independent legal and financial advice prior to signing.
Time Limits For Property Adjustments
- If you were married, any applications for a property adjustment must be made within 12 months.
- If you were in a de facto relationship, your applications must be made within 2 years of the breakdown of your relationship.
- If you do not meet these time limits, you will need to be granted special permission from the court, which is not always given.
How does a court decide the division of property, assets and debts?
How property is divided is dependent on:
- evidence heard and provided
- the individual circumstances
- what a judge decides is just and equitable based on the unique factors of the case
The general principles are the same but the courts will take the following into consideration:
- What you own and what you owe – what assets and debts you have, attributing a monetary value
- The direct financial contributions (eg wage and salary earnings) of each party to the marriage or de facto relationship
- The indirect financial contributions of each party such as inheritances from families, presents, and being the home-maker. In this way, you contribute to the welfare of the family. Another example is renovating the property such as painting.
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What Issues Arise When Children Are Involved?
There are a number of facts to consider when children are involved such as:
- Parenting arrangements
- Parenting disputes
- Parenting orders
- How much time a child spends with a parent
What Is A Consent Order?
Even if both parents agree to an order being sought, a consent order is required to make the agreement legally binding.
This written agreement that is approved by the Court can address:
- How much time the child should spend with each parent
- Whether the time will be equal with each parent, substantial or significant time with one parent
- How the child will be cared for during school holidays, pupil free days or on days when sick and unable to attend school
- How much time a child will spend with a grandparent or other relative
- What other forms of communication a child will have with a parent
- Obligations to attend family, educational, religious or cultural holidays
- Orders regarding overseas holidays and whether they are permitted
In all cases, the Court will only approve an order if it strongly believes that it is in the best interests of the child.
A consent order can only be made after negotiating with the parents and is both applied for and approved by the courts. This agreement is legally binding and even signing a draft means that you agree with the orders and the terms stipulated.
Family Law Issues Pertaining to Children
What Is A Parenting Order?
A parenting order outlines any parenting arrangements regarding a child and is made by a Court. When the parties have tried and failed to resolve a parenting dispute privately, they request help from a judge to decide the issue for them. Parenting orders are strictly for arranging aspects of parental responsibility for a child. The Court will not make any decision regarding the child unless it deems the order to be in the child’s best interests.
This process begins by filing an application in a court that has the ability to hear Family Law cases.
The courts include:
- Family Court of Australia
- Federal Circuit Court
- Local Court in NSW, depending on the circumstances of the case.
If the case proceeds from the initial application through to a hearing, the Court will likely make a parenting order.
When the Court is deciding whether to approve a parenting order, ensuring it is in the best interests of the child, it will often consider:
- Benefits associated with the child having a meaningful relationship with both parents
- The need to protect the child from any physical and psychological harm, abuse or neglect
- Each parent’s capacity for taking care of a child and providing for the child’s needs
- Any views expressed by the child, factoring in the child’s maturity and age
- The child’s relationship with both parents, as well as with any other person who is important (grandparents, siblings)
- Possible effect on the child by having a change in circumstances, including separating siblings
- The willingness and eagerness of a child’s parent to encourage a close and ongoing relationship with the other parent
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What Is Child Support?
Child support is a payment made from one parent to the other for food, housing, clothes, schooling costs and any other expenses relating to their shared child after a separation. Both parents need to establish the total amount of these costs and sometimes payments are required even if the children are living part-time with the paying parent. Child support is paid until the child is at least 18 years old, sometimes longer due to other circumstances such as costs relating to education.
The Department of Human Services Child Support manage child support payments and is responsible for determining the monetary amount required. The department conducts a child support assessment. Once the amount has been set by DHS Child Support, the parents can arrange the way in which they will make or receive the payments on their own. Centrelink needs to be contacted in order to collect the money on their behalf if the person is receiving benefits.
Parents can also choose to make a Child Support Agreement, which is a written agreement outlining how often and what amount child support payments will be.
How To Pay Child Support
There are a few different ways that child support payments can be made.
Private Collect of Self-Management
This is a private arrangement between both parents based on an agreed upon amount. Both parents are required to keep a record showing that the payments are for child support, especially if paying cash.
Keep a record of who received the payment and when, who the payment was for and how much money was paid. If the child support payments are made via bank transfer, including ‘child support’ in the description field is a good way to ‘keep track’ of your payments. This description will be included on your bank statement.
Child Support Collect
The Child Support agency will collect and send child support payments on your behalf. You can elect to use a direct debit or b-pay arrangement with the Child Support agency. The agency can also arrange for your employer to pay some of your wage towards child support, or organise for it to be collected from your Centrelink benefits.
What Is Equal Shared Parental Responsibility?
A court will always start with the presumption that it is in the child’s best interests to have equal shared parental responsibility. Both parents share the responsibility when making significant decisions regarding their children. These include decisions relating to health, schooling or religion.
The only time a court will not grant shared parental responsibility is when it has reason to believe it would not be best for the child. For example, situations where there has been or there is a risk of domestic violence or child abuse.
It’s important to note that shared parental responsibility does not necessarily mean that each parent is able to spend equal time with their children. This aspect is determined on a case by case basis.
Equal Time Or Significant And Substantial Time
The decision regarding whether a child will have equal time with both parents is determined based on what is in the best interests of the child. If the Court cannot be satisfied that providing equal time with both parents is the best option for the child or it is not practical to do so, the Court must consider giving the child significant and substantial time with one parent.
This means that it is a requirement for a parent to have time with their child, including:
- Time on weekends and holidays
- Time on other days, including during the day and at night
- Participation in events that are significant to the parent and child, such as Mother’s or Father’s day, sports days and birthdays
- Allowing the parent to be involved in the child’s daily routine.
Providing a parent with significant and substantial time means that the parent isn’t merely seeing the child every second weekend and for half of the school holidays. This ensures that both parent and child are actually able to spend quality time together.
Both parents are able to play an equal role in all aspects of the child’s life, including the day to day aspects, as well as difficult and fun aspects.
What is Mediation?
Before an application for parenting orders is filed, both parties must attend a compulsory Family Dispute Resolution Conference and both parties must make a genuine attempt to resolve the issue through mediation. Disputes that are commonly resolved in this manner are child custody disputes, child support disputes and financial settlements. The aim of mediation is to facilitate effective communication between both parents. It creates an environment in which both parties can express their views on the issue as well as their desired outcome. Although this process is compulsory, some exceptions are made for cases involving domestic violence, child abuse or anything else that is classed as an urgent matter.
You can avoid going to court by reaching an agreement through mediation. However, there are necessary steps to be taken afterwards and depend on whether or not the parents were in agreement during the process. both parents agree on a resolution and formalise it, they can make it legally binding by applying to the Family Court for consent orders. If parenting arrangements cannot be agreed upon via mediation, then an application for determination is made to the court and either parent can begin Court proceedings. This can be done through filing an Initiating Application to ask the Federal Circuit Court or Family Court to make orders.
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What Is Family Dispute Resolution?
Family dispute resolution (FDR) is compulsory and is governed by the Family Law Act 1975. This process is non-judicial and supports people who are in conflict communicate with each other regarding issues of importance and how to best make decisions to resolve their disputes. Couples attend family dispute resolution in order to resolve issues regarding parenting matters before the matter progresses to Court.
What Is A Section 60I Certificate?
Once you’ve attended Family Dispute Resolution, the FDR practitioner will produce a Section 60I Certificate.
This demonstrates that you have attended mediation and made a genuine effort to resolve your issues. It allows either party to file a parenting order in court.
An order cannot be filed with the Court without this certificate.
5 Different Types Of Certificates A Practitioner Can Issue
These state that:
- The person did not attend Family Dispute Resolution but that the person’s failure to do so was due to the refusal or failure of the other party to attend
- The person did not attend Family Dispute Resolution because the practitioner did not think it would be appropriate to conduct mediation
- Both parties attended Family Dispute Resolution and made a genuine effort to resolve the issues in dispute
- Both parties attended Family Dispute Resolution but one or both of them did not make a genuine effort to resolve the issues
- Both people started Family Dispute Resolution but during the process the practitioner decided it was not appropriate to continue
Are There Exemptions To The Family Dispute Resolution Rule?
If you require an exemption from attending mediation due to family violence or child abuse, you will need to obtain information from a family counsellor or Family Dispute Resolution practitioner regarding the services and options available to you and how you can avoid court action. You must be able to provide written acknowledgment of receiving the information by completing an Acknowledgment form. This must be included with an affidavit in support of your application for the exemption. There is no need to obtain the information when reasonable grounds exist.
- where the court maintains it would be putting a child at risk of abuse by delaying the application process for a parenting order
- where there is a risk of family violence by one of the parties
What Are The Court’s Processes Regarding Children?
The Court needs to understand the particular circumstances that are unique to each situation. There are a number of processes that help to support couples prior to court proceedings.
A Family Report
While a Child Inclusive Conference may be used as a preliminary assessment to help decide short-term arrangements for the child, a Family Report is used to assess the family situation in more depth. This can assist the Court in making long-term orders for the children at the final hearing.
In preparing a Family Report, the family consultant considers the family’s circumstances and explores any issues relevant to the case. A series of interviews occur during this process and unlike a Child Inclusive Conference, these interviews can span over the course of a few days. Interviews are conducted with all parties and may also be conducted with any other significant people, such as grandparents or siblings.
Based on the results of these interviews and the observations made by the family consultant, recommendations will be made based on the best interests of the child and the child’s future needs. A Family Report must be released by the Court before either parent can receive it. In addition, it cannot be shown to anyone outside of the case without permission from the Court. Depending on the circumstances, the Court may only release the report to the Legal representatives in the matter.
What Happens If Children Are Taken Without Your Permission?
The first step is trying to talk with the other person to see if you can reach an agreement about the safe return of the children. If you can’t speak to them or if they refuse or are being uncooperative, you can apply to the Court for a Recovery Order. This is an order from the court that allows both State and Federal Police to retrieve your children and return them to you.
Supervised contact is when a parent is allowed contact with their children but present at the contact must be:
- A person who is known to both parents and a trusted individual or
- a children’s contact service
Orders for supervised contact will only be established if the Court believes it is in the child’s best interest. The role of the supervisor is to make sure children are safely transferred from one parent to the other and to supervise a visit so both parents can spend time with their children.
Supervised visitation can occur when parents are experiencing high levels of conflict or where there are concerns for safety or violence occurring. They can also be ordered when there are fears of a child being abducted by one parent or when one parent has limited skills and needs help taking care of the child. A supervised contact order is (usually) only created for a period of time, as the intention is to assist the person, so that supervision will no longer be needed.
What To Do If You Don’t Know Where To Find Them?
If your children have been moved without your approval and you don’t know where to find them, ask friends and relatives to try and help locate the other parent. If they are unable to help or refuse to give you any information, or if you fear for your safety or the safety of your children, you can apply to the Court for a Location Order. A Location Order enables you to ask an organisation or a person to provide you with direct information regarding the whereabouts of your children.
Are You Worried Your Children Will Be Taken Overseas?
If you’re concerned a parent will take the children overseas without your consent, you can put the children’s names on the Airport Watch List. The process involves applying to the Court and sending a copy of the application, as well as any Court Orders, to the Federal Police. The children’s names can be placed on the Watch List immediately after an application has been filed with the court. It’s essential that you provide the Federal Police will all relevant information and orders immediately.
Are You Unsure Whether You’re The Father Of The Child?
A person has the right to prove that they fathered a child. This can be done by a paternity test and a court order.
A father can petition the Court for a paternity DNA test if the mother of the child is refusing to let the child be tested. In order to receive a court ordered paternity test, the man needs to provide evidence substantiating why he might be the father of the child. An example could be proof that he had a relationship with the mother of the child. The DNA testing process can take anywhere from 6-8 weeks to complete.
A Court can refuse a paternity test if the father makes a claim to paternity more than 2 years after he became aware of his potential relationship with the child. The results of a Court ordered test are immediately sent to the Court to be considered. If the results show that the father is the biological father of the child, a paternity order is issued. This ensures the father is secure if there is a challenge to his paternity status.
Who Pays For The DNA Test?
This varies and is dependent on the individual case. The Court may order that the father requesting the DNA test pay the full cost upfront or may order that the cost be shared equally with the mother.
Once testing is complete and depending on the result, either person may be able to seek an order that the other repay them for the cost of the testing.
Have you recently separated? Do you have questions relating to divorce? Do you need assistance, making sure your wishes are upheld with respect to your children?
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Child Protection and Caring for Your Children’s Safety
Has the Department of Community Services Australia (FaCS) been involved in your family? Have your children been removed?
When your children are removed from your care, it can be an extremely emotional and traumatic experience. Let our family lawyers attend to your legal matters, so that you can focus on your children after they have been safely returned to your care.
Our lawyers have experience in care and protection matters involving DoCS (FaCS).
Providing advice, Making referrals for courses and programs, Preparing Court documents, Attending mediation, Negotiating with the department, Managing interim and final hearings
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We can also assist you in getting your children back, (restored) even if final orders have been made for your children to live with someone else.