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Family Law Melbourne FAQ

Frequently Asked Questions

Q - What types of orders does the Family Court make regarding children?

A - Parenting Orders can be made by a Court (either by consent of the parties or if the parents cannot agree, upon judicial determination) relating to matters such as:

- Parental responsibility;
- Where the child is to live;
- The persons with whom the child is to spend time and communicate;
- Other aspects of parental responsibility such as where a child is to go to school, the provision of medical treatment and where parities each reside.


Q - What if there is an Intervention Order?

A - A family member who has been threatened with violence or actually assaulted, molested, harassed or had their property damaged, can apply for an Intervention Order. The person applying for the orders is a “protected person”. The protected person can also request a child be included on the Order as a protected person.

An Intervention Order imposes conditions which seek to prevent violent behaviour such as making it illegal for the other party to enter or come near the family home or near the protected person(s).

It is a requirement when an Intervention Order is made that there are written arrangement included on the Order for the care arrangements for the children.

In most circumstances when an Intervention Order is made, there are exclusions to the breaching of an Intervention Order so that parents can discuss with each other the ongoing care arrangements of their children.


Q - How does the Family Court divide our property?

A - During their relationship spouses will usually acquire various assets, financial resources and liabilities. The Court is required to take into account all of the relevant factors in a case before deciding on how property should be divided between spouses. The “four step approach” preferred by the Court in the decision making process is as follows:

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Firstly, the asset pool must be valued. This involves identifying all assets, liabilities and resources of the parties and then attributing a value to each.
- Secondly, the Court will asses the financial and non financial contributions each of the parties has made to the acquisition and maintenance of the asset pool. The Court will also assess each parties contributions to the welfare of the family if there are children.
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Thirdly, the Court will consider the future needs, means and responsibilities of the parties and determine whether any adjustments need to be made.
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Lastly, having regard to the above three points, the Court will determine what order would provide a just and equitable division in all the circumstances.

These steps require careful analysis, which is the role of our lawyers who are highly experienced in these matters.


Q - What is spousal maintenance?

A - Spouses can seek maintenance from the other if they can establish that there is a need for one party to be paid maintenance and that the other spouse has the ability to pay that maintenance.

For example a spouse may have a need for maintenance because they are unable to support themselves adequately due to being out of the workforce for many years, their age or physical or mental incapacity.

If a spouse can demonstrate a need for maintenance the next step is to ascertain whether the other spouse has the financial capacity to pay such maintenance. The Court would consider the age and health of the parties, the income as well as, property and financial resources available to the parties.


Q - What is a Binding Financial Agreement or a Pre Nup?

A - A Binding Financial Agreement (“BFA”) is one of the two forms of documentation recognised by the Family Law Act as appropriate to finalise a family law financial settlement. For the matter to be resolved in a BFA both parties must be represented by independent lawyers. The BFA method allows final and binding financial terms of settlement to be made without the need for the terms of the agreement to be referred to the Family Court and therefore the agreement reached by the parties is not subject to the scrutiny of the Court in these circumstances.

A BFA can also be entered into prior to the parties living together or getting married. This is a prenuptial agreement. A prenuptial agreement can include an outline of the assets, liabilities and financial resources of each party at the time of entering into the agreement. The parties can outlined what should occur if they separated in the future in relation to the assets, liabilities and financial resources they each brought to the relationship and assets, liabilities and financial resources they acquire together during the relationship.

A prenuptial agreement can provide surety as to what should occur if the parties to the agreement separate at some stage in the future.


Q - How is child support calculated?

A - The Child Support (Assessment) Act 1989 provides a set formula for calculating the amount of child support to be paid by one parent to the other for the benefit of the financial support of their children.

There are a number of variables which are used to calculate the amount of child support to be paid. Your families specific circumstances will determine which variables are relevant and how they are applied.

The calculation of child support is based on the assumptions about the costs of maintaining children. The Child Support Agency calculates the “cost” of maintaining a child based on the combined income of both parents and the “standard of living” such a combined income would support.

The “cost” of the child is apportioned between parents according to the level of care/time each parent spends with the children and their respective income levels.

The Child Support Agency has an interactive calculator on their website (www.csa.gov.au) which can calculate estimates of potential child support obligations.


Q - What will my legal costs be?

A - The legal costs you incur will depend on a range of factors such as:

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Whether you are seeking advice about discrete issues or a range of issues.
- The complexity of the matter.
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The number and type of legal processes involved.
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The degree of difficulty in collecting information and documentation.
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The duration of negotiations and the stage at which any settlement can be reached.
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Whether Court proceedings are instigated.

It is difficult to be precise about the legal costs to be incurred at the outset of obtaining instructions from client. We however provide client’s with a range of estimates after an analysis of the specific facts and circumstances involved in their particular matter so as they are fully aware of the likely legal costs to be incurred at various stages of their matter.


Q - How long will it all take?

A - The length of resolving matters depends on the specific fact situation and circumstances to a particular client.

A typical a negotiated property settlement whereby there is correspondence between parties through their legal representatives, documents are drafted and approved by both parties and then finalised in Court by way of consent Orders will usually take several months.

If parties have reached agreement and attend upon our lawyers to draft the agreement and have it approved in Court Orders then it may only take perhaps a month or so to complete.

If a matter cannot be resolved through negotiations and Court proceedings are required to be issued then the legal proceedings will be length. However even when Court proceedings are issued a matter can still resolve through discussions between the parties.

If however agreement cannot be reached then it may take 12 -18 months to progress through the Court stages to a judicial hearing in a protracted dispute.

Harwood Andrews & Cuthberts Join Forces

Harwood Andrews Lawyers is strengthening its position in Western Victoria, announcing a merger with Cuthberts Barristers & Solicitors as of July 1 2013.

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