Welcome To South West Sydney’s Most Reputable Family Law Firm
At Bateys Law Firm we offer a friendly relaxed environment where we provide you with professional advice in the areas of, Family Law, Business and Conveyancing Law, Family Provisions Claims (Disputed Wills), and Wills and Estate Planning.
We help couples that are going through a relationship breakdown get agreement on your property settlement and parenting plans, helping you spend time with your children, get your fair share of the property and preserve your relationship with your former partner.
Time with the children
Can I spend quality time with my children?
The law tells us that a child has the right to be cared for by both parents and for both parents to have meaningful involvement in the child’s life to the maximum extent consistent with the best interest of the child. This is a right of the child, not a right of the parent. This right of the child is protected by the law and is a fundamental principle of Australian family law. These principles and rights are detailed in section 60B of the Family Law Act. The right will be rebutted if it is unsafe for the child to spend time with a particular parent. The best interests of the child is at the heart of all family law parenting matters.
In most situations where both parents have had active involvement with the children, there are no issues or reason that both parents can’t spend reasonable and quality time with the children. In many cases these arrangements are put in place by agreement between the parents or negotiated through their solicitors prior to any formal court application being made.
If there are concerns regarding the safety of the child under a parent’s care then special arrangements can be made to ensure that the child’s welfare and safety are protected and to ensure that the child is not deprived of a relationship with either parent. These arrangements may include a form of supervision where the parent’s time with the child is supervised by a mutually agreed friend or family member or by a professional supervision service. The services operate throughout Australia and provide detailed reports of the interactions between the child and the parent being supervised. These reports can be extremely helpful to a court in determining if supervision is required long term and the validity of the alligations made by the other parent.
In determining what time your children will spend with you, it is important to look at the practical side of any arrangement. For instance if you are the primary income earner working 60 hours a week, it may not be practical for you to have the children 50% of the time. The simple logistics of that arrangement may not be feasible.
In some families a 50-50 arrangement works with the children spending approximately equal time with both parents over a continuing two week cycle. When determining what arrangements should be put in place it’s important to look at what’s in the best interest of the children as opposed to ensuring that each parent gets exactly half of the time each.
A sensible regime needs to take into consideration both parties’ working commitments as well as the children’s schooling and extra curricula activities. It is common for arrangements to be made that every second weekend plus one or two nights in each week, for the children to spend time with the parent who does not have the primary care of them.
Other special days need to be taken into account such as Mother’s Day, Father’s Day, birthdays, Christmas or other religious holidays and school holidays. We can provide guidance on what has worked for other families and assist in making arrangements that are least likely to lead to further court proceedings.
Call us on 02 9792 1833 or email us at lawyers@bateys.com.au
Financial position after separation
What will be my financial position after separation?
In determining what your financial position will be after you have separated, there are a number of things that we need to take into consideration. This is regardless of whether you are in a marriage or a de facto relationship.
First it is necessary to consider whether it’s just and equitable in all the circumstances to make an order to divide the marital property. In most cases the answer to this question will be yes. This principle was clarified by the High Court in the case called Stanford. This case details that the court will only make a decision to alter the ownership of property where it is just and equitable to do so.
The second thing that we need to do, is to identify and value the net property of both you and your spouse. This is done by looking at all the assets, all the liabilities, financial resources and superannuation. The net position is commonly referred to as the value of “the marital pool of assets”. The net value of the marital pool of assets is valued as at the date the orders are made, not at the date of separation. The reason for this is that the court needs to see your current financial position when determining a division of assets to ensure that the end position for both you and your spouse is fair and equitable in all the circumstances. This position may sound strange especially if you been separated for considerable time and have acquired assets after separation. The assets that you have acquired and assets that you have divested yourself of post separation may be taken into consideration.
The third thing that we need to take into consideration is the contributions made by both parties. These contributions can be made at the commencement of the relationship, for example you may have had a house prior to commencing the relationship, this will need to be taken into consideration so that you get the recognition of the contribution and as such an adjustment in your favour recognising your financial contribution prior to the relationship.
Contributions can be made prior to the relationship, during the relationship and after separation. These contributions can be both financial and non-financial. Contributions of wage and salary, inheritance moneys and retrenchment payouts are financial contributions. Non-financial contributions would include taking care of the children, providing labour for the improvement of the family home for example doing a renovation and the more mundane but very important daily routines of washing, ironing, cooking, taking the garbage out and doing the dishes. All these contributions need to be taken into account to determine what division of the assets is fair and equitable. These are referred to under the Family Law Act as section 79 (4) factors.
The fourth thing that needs to be considered are what the court call section 75 (2) factors. For each of the parties, these factors include your age and state of health, earning capacity, financial resources, who has the primary care of the child or children, your personal financial commitments, responsibilities for supporting another person, the duration of the relationship and details regarding the living arrangements of each of the parties to mention a few.
The prevailing principle is that the court will only make an order that is fair and equitable in all the circumstances. In order to make the best decisions when negotiating financial settlements it’s imperative that you have a strong understanding of how the court will deal with your specific circumstances. Once you are armed with this knowledge, it puts you in a strong position to negotiate and make financial decisions and agree to financial orders for the benefit of the children and you.
Call us on 02 9792 1833 or email us at lawyers@bateys.com.au
Going to Court
Do I need to go to Court?
Most family law matters are resolved by the parties without either of the parties attending court. If an agreement can be reached between you and your spouse with regards to parenting and/or property arrangements, the appropriate documents can be drawn up and signed by the both of you. These documents are filed with court and the court will make the orders requested (in most cases) without the need for anyone to attend court. These are referred to as consent orders and they are called consent orders because both parties consent to what has been put forward. They are made by a court without the need for formal court proceedings.
If the matter can be resolved by consent orders, this is most cost-effective and beneficial way to finalise matters. Unfortunately not all matters are able to be finalised without the assistance of the court. In these cases a formal application needs to be filed and court dates set for the court to start the process. The court will encourage the parties to resolve the matter by consent throughout the process and will only make the final decision if the parties cannot come to an agreement.
While commencing formal court proceedings is not our preferred way to resolve family law matters it is often useful to progress a matter that has been bogged down due to one of the parties not being willing to engage in constructive negotiation. Where this happens the party that is not willing to have constructive dialogue is controlling the process through inactivity. This type of behaviour can be both costly and frustrating to you when you are trying to actively resolve the matter. Commencing court proceedings is a way to take control away from an inactive spouse. It does not give control to you, but it does give control to the court. This is advantageous as now both of you need to comply with the court’s timetable and requirements. This often has the effect of forcing your spouse to the negotiating table. Your spouse is no longer in control and is often uncomfortable in their new environment. As such, what was not able to be discussed or agreed prior to court is often agreed early on in the formal court process.
The court is there to help, but it is a process and you need to be well prepared. This is where securing the services of a competent family lawyer can make all the difference.
Call us on 02 9792 1833 or email us at lawyers@bateys.com.au
A Family Law Firm For Family Law Matters
Bruce Batey
Director | Lawyer
Bruce Batey is a director of Bateys Law Firm and focuses on Family Law, Wills and Estate Planning. His passion is to protect you and your family against the unexpected and to provide the most up-to-date and relevant legal advice to clients in order to gain the best possible outcome in a friendly, professional and caring environment.
Bruce previously shared his passion and knowledge of law by being the elected President of the Bankstown and District Branch of the Law Society for 3 years before passing it on to concentrate on the growth of Bateys Law Firm.
Kelly Batey
Director | Lawyer
Kelly Batey is a director of Bateys Law Firm and has had a primary focus in the Family Law area since 2003 and brings her experience, skills and knowledge to best help you and your family in a practical and cost effective manner. Kelly also focusses on conveyancing matters, making the process as quick and easy as possible for all our clients in order to remove the stress and ensure that your family enjoys an exciting time of change in your life. Her compassionate and understanding approach to legal matters ensures that you will feel looked after and cared about through the entire process.
Questions and Answers
- Q
- Can I relocate (move) with the children?
- The Answer
- A
- The court doesn’t allow unilateral decisions to be made regarding relocating a child where that relocation makes it difficult and impractical for the other parent to have continued involvement with the child. If the parents can come to an agreement on relocating the children then there is no issue and this can be done. In certain circumstances, the court will allow a relocation to happen even though the relocation may make it difficult for a parent to spend time with the children. Circumstances that may be considered are family and support structures, the history of family violence, the history of where the child has resided, the child’s social environment and support networks.
- Q
- Can I stop access to my bank accounts?
- The Answer
- A
- If you are concerned that your bank account or mortgage redraw facility will be depleted due to your spouse withdrawing large sums of money, it may be appropriate to stop your spouse’s access to those accounts. This may be as simple as changing the authority on the account to both of you to sign for any withdrawals. Saying that, if it has been common practice for your money is to be shared, it may be necessary to make arrangements to ensure that regular household bills and expenses of the children are met or contributed to. Where both parties are earning a reasonable income it may be appropriate for the access to your bank accounts to be stopped. If you and your spouse own a property it is important to ensure that appropriate arrangements are made so the mortgage continues to get paid. By continuing to pay things such as the mortgage and council rates, it limits your spouse’s post separation contributions and the associated adjustments in their favour in terms of their percentage of the asset pool.
- Q
- Can I attend school functions?
- The Answer
- A
- As long as there has been no allegations of violence or inappropriate behaviour there is no reason that both parents cannot attend school functions and events while working through the family law matter. In cases where the children’s or parent’s safety is of concern there may be restrictions on one of the parents from attending. Most parents understand the need to promote a good relationship between the other parent and their child and the parents’ attendance at school functions is an important part of this process.
- Q
- Can take the children on holidays?
- The Answer
- A
- If you have an agreement with your spouse that you can take the children on holidays then there is no issue with that. If an agreement has not been reached then a number of factors will come into consideration such as destination for the holidays, the accommodation arrangements, the ability for the other parent to communicate freely with the children when they are on holidays and the timing and duration of the proposed holidays. Often, if these are unable to be negotiated directly between the parties, arrangements can be facilitated through negotiations by your lawyers.
- Q
- Can I take the children overseas?
- The Answer
- A
- If you have an agreement with your spouse that you can take the children overseas then there is no issue with that. It is important that you have the conversation with your spouse to ensure both parties know exactly what is planned. In circumstances where one of the parents is concerned that the children may be taken overseas and not returned, they may apply to the court to have the children included on the Federal Police airport watchlist. If this has happened, the children will not be able to leave the country. If your children are on a watchlist and you do require to take them overseas you will need to get a court order either removing the children temporarily or permanently from the watchlist.
- Q
- Do I need to pay child support?
- The Answer
- A
- As a responsible parent it's important that your obligations for the financial support of the children are met. The Child Support Agency provides a calculator on their website which will help you determine the amount of child support payable by you. This amount is what would be enforced should your spouse seek payment through the Child Support Agency and have them garnish your wages to make payment. In many cases the Child Support Agency is not involved as private arrangements between the parents are put in place. In private arrangements payments can be higher or lower than what the Child Support Agency has calculated, as long as there is agreement between parties.
- Q
- What are consent orders?
- The Answer
- A
- As the name suggests, consent orders are court orders that are agreed to by both parties. These orders typically result from negotiations between the parties about parenting arrangements and the division of the parties’ financial assets. If agreement can be reached, the parties can simply execute the necessary court documents and have the documents filed in court. The orders are made without the need for attending court. This is by far the most cost-effective way to finalise your family law matter and it spares the parties the inconvenience, cost and emotional turmoil of court proceedings.
- Q
- What are Court made orders?
- The Answer
- A
- In cases where agreement cannot be reached between the parties, the court can be involved to make a formal determination on how the financial assets are divided and the care arrangements for the children. It is the preference of the court that parties come to an agreement rather than have decisions imposed on them on by the court. For this reason the court provides numerous opportunities for the parties to reach agreement by consent and if this is able to be done, consent orders will be made at any time throughout the court proceedings. If no agreement can be reached the court will make the final orders at the conclusion of a final hearing. These orders state precisely the division of assets and the care arrangements for the children. The process involves both parties providing evidence and the judge taking all the evidence from both sides into account and then coming to a determination.
- Q
- How long does it take to get consent orders made?
- The Answer
- A
- If agreement has been reached between the parties, consent orders can be finalised in a relatively short timeframe. Once the orders are drafted and agreed, they need to be signed by both parties and filed with the court. Typically the time it takes for a court to process the orders are between four and eight weeks. The court sometimes requests additional information and if this happens, the court’s approval time maybe slightly extended.
- Q
- How long will it take if I have to go to Court?
- The Answer
- A
- If your matter ends up going through formal court proceedings resulting in a final hearing, it could take in excess of two years before final orders are made. If agreement can be reached between the parties through the court process, consent orders can be made at any time through the proceedings.
- Q
- What should I do first?
- The Answer
- A
- The first step is to get a thorough understanding of your legal entitlements and what the court will take into consideration in making a decision regarding your property division and the care arrangements for your children. This can be done by having a detailed meeting with your lawyer where you will be taken through the legal decision making steps and you will be provided with specific advice regarding your particular circumstances and the likely outcomes. With this information, you are then able to make informed decisions regarding your family law matter and to negotiate from a position of knowledge.
Your questions still unanswered? Contact us today.
