FAMILY LAW
1. Marriaged:
Family Law is a very complex area of law because the breakdown of a marriage or relationships can be a very DIFFICULT TIME FOR ADULTS AS WELL AS THE CHILDREN, IF ANY, to provide an affordable quality professional service at reasonable costs in this area of law we are very understanding and sympathetic to your special needs and the particular needs of any children who may be involved.
Nguyen Do Lawyers offers family law services. We provide a professional client-focused service that achieves good results. We act for:
- married,
- de facto, and
- same sex partners, together with
- people entering into a relationship,
- grandparents, and
- third parties to family law matters.
Nguyen Do Lawyers is pleased to provide professional advice, assistance and support to his clients in the following areas:
- legal issues and advice before entering a relationship or separating;
- pre-nuptial and cohabitation agreements;
- separation;
- divorce;
- dispute resolution and mediation options as an alternative to family court litigation;
- child support arrangements;
- financial and property settlements;
- superannuation splitting;
- trust asset and company asset splitting;
- childrens’ arrangements (sometimes referred to as child custody) and relocation issues;
- spousal maintenance advice;
- intervention orders and breaches of family court orders; and
- Referrals to counsellors, psychologists, financial planners and other experts.
Many legal issues arise when a relationship breaks down. In the most part disputes are about the care of children, and the division of property. However, quite often those disputes become emotional and complex, requiring knowledgeable and patient guidance and advice. We have extensive experience in a vast range of Family Law and de facto law matters (including same sex matters) from property cases involving millions of dollars worth of assets, to child welfare cases involving the care and welfare of the one thing that matters more then anything.
We can provide guidance and assistance in:
Separation issues
Divorce
Property settlements
Children’s issues including contact and residence
Child support
Spousal maintenance
Financial agreements
Pre-Nuptial agreements
Enforcement issues.
2. Separation:
The Family Law Act establishes separation as the sole and necessary ground to establish that a marriage or a de facto relationship has irretrievably broken down. Separation is not a step or an action that involves any legal notification or registration under the Family Law Act; separation is treated as a question of fact that must be proved if it is later disputed by the other party.
Separation should be noted at the time it occurs and confirmed in writing between the parties, so that it can be proved if necessary in later property settlement or divorce proceedings. This is especially relevant where the separation is not mutually agreed, and one party later disputes the date of separation or that separation in fact occurred. Separation can be under the same roof and can occur as a gradual process over time. However, in such cases, a court will likely look to corroborative evidence and consider a number of factors to establish and decide when and if separation has actually taken place.
Where a de facto couple has separated, the issue of timing may be especially important. If the separation occurs less than 2 years from the commencement of the de facto relationship, then a court may lack jurisdiction under the Family Law Act to make a property settlement order, unless other qualifying conditions apply.
Separating couples are likely to need to make immediate decisions on practical issues including:
- Where any children will live;
- How much time the children will spend with each parent;
- Arrangements needed for financial support of the children;
- The division of pooled property and money and the payment of debts; and
- Whether spousal maintenance is to be paid.
There are decisions to be made in separating which are important, and uninformed decisions and short term arrangements can have long term legal consequences. It is important that you seek legal advice either before you separate, or as soon as possible after you separate, so that you can be fully information in making those decisions.
3. Divorce:
The Family Law Act does not take account of the causes of marriage breakdown in divorce applications. It only requires that the marriage has broken down irretrievably.
Irretrievable breakdown is proven by a 12 month separation of the parties. If you are married and you have been separated for at least 12 months, you can apply to the Family Court or Federal Circuit Court for a divorce.
If you have been married for a period of less than two years, you will normally require a counselling certificate before applying to the Court for a divorce.
If you have children, the Court has to be satisfied that you have made proper arrangements for your children's welfare before granting a divorce.
Divorce marks the legal end of your marriage, but does not deal with parenting matters, child support, the division of property and money, or spousal maintenance. These issues must be dealt with separately.
4. Financial Agreements/Protecting family wealth:
There is no certain way to protect your property and money against the breakdown of your marriage or de facto relationship. The courts' powers under the Family Law Act are broad.
But the Family Law Act does provide for married or de facto couples to formally commit to an agreement setting out how they want to deal with the division of their financial assets if their marriage or relationship were to end, or has already broken down.
These written legal agreements, called binding financial agreements, and popularly referred to as 'pre-nups', provide a way for to limit the circumstances in which the courts will interfere with your property settlement after the breakdown of your marriage or de facto relationship.
A binding financial agreement is a valuable and often essential legal tool in cases where there is there is significant family wealth or a family business where you and/or your partner are bringing assets, or wealth, or a business to a new marriage or de facto relationship.
The case for making a binding financial agreement is strengthened where you or your partner have children from a prior marriage or relationship and wish to ensure that they are properly provided for.
5. Parenting Arrangements
The Family Law Act covers all children in Australia, whether the parents are married or in de facto relationships.
The object regarding children set out in the Family Law Act is to ensure that children have the benefit of a meaningful relationship with both their parents to the maximum extent that is in the best interests of the children, and to enable them to "achieve their full potential".
The Act also provides measures to protect children from any physical or psychological harm from being subjected or exposed to abuse, neglect or family violence.
The principles underlying this objective are, unless it would be contrary to a child's best interests:
- Children have the right to know and be cared for by both their parents.
- Children have a right to spend time on a regular basis and communicate on a regular basis with both parents.
- Parents jointly share duties and responsibilities concerning the care, welfare and development of their children.
- Parents should agree about the parenting of their children.
- Children have a right to enjoy their culture.
If parents agree about the parenting of their children, which parent the children should live with, and the time that the children should spend with the other parent, then they may formally set down their agreement in the Family Court system.
If parents cannot agree about the parenting of their children, then an Application can be made to the Local Court, the Federal Circuit Court or the Family Court for its assistance in resolving disputes. The Court process encourages parents to reach their own agreement about the children. However, where parents are unable to agree, Parenting Orders will be made by a court about a child or children. The terminology of the Family Court regarding childrens' orders has changed. Terms such as "custody" "guardianship" and "access" and "contact" have been discarded and replaced with new language. A "live with" and a "spend time with" order is a Parenting Order.
Whenever the Court makes any Orders about children, its basic consideration is the best interest of the child or children.
In order to determine what the best interests of a child are, the Court is required to consider the following:
- The benefit to a child of having a meaningful relationship with both the child's parents.
- The need to protect the child from physical or psychological harm from being subject or exposed to abuse, neglect or family violence.
Children of a certain age and/or maturity may also be considered by the Court to have the capacity to express a view that should be considered when the Court comes to make an Order with regard to their care.
6. De Facto Relationships
For the latest information about this evolving area of family law De Facto Relationships follow the link below to the Family Court information page:
http://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/home/
The de facto property regime brings property and spousal maintenance matters for separating de facto couples within the federal family law regime under the Family Law Act 1975.
Lan Phuong
Nguyen Do Lawyers
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