What does child support cover in Australia?

What is Child Support?

In Australia, child support refers to the financial contributions made by divorced or separated parents towards their children’s upbringing, and this is different from spousal maintenance.

It’s also possible for individuals who aren’t biological parents, such as grandparents, extended family members, or legal guardians, to seek child support. To qualify for this support, a non-parent guardian must be responsible for at least 35% of the time for the child’s care and must not be romantically involved with either of the child’s biological parents.

Child Support Agreements

Under the Child Support (Assessment) Act, parents can choose between two types of agreements to decide the amount and conditions of child support: a Binding Child Support Agreement and a Limited Child Support Agreement.

Binding Child Support Agreement

A binding child support agreement is a private agreement between parents or guardians that outlines how child support will be handled, including the amount and type of payments. This agreement can be established before or after a separation and may encompass regular and one-time financial contributions.

A binding child support agreement can be a valuable way for parents or caregivers to formalize the terms of child support without involving the Child Support Agency. To be considered legally binding, both parties should write the document by hand, sign it, and ensure it complies with the legal requirements.

Key Aspects of a Binding Child Support Agreement

Flexibility: Unlike fixed prescribed expenses, these private agreements allow for a high degree of adaptability and certainty for both parties involved; it is not necessarily adjusted by each spouse’s income that year or other factors that they cannot control.
Addressing Specific Concerns: These agreements can be designed to manage unique circumstances, like delays in property settlements by an ex-spouse. With appropriate legal advice, typically from specialized family lawyers, these agreements can address all relevant issues.
Legal Expertise: Consulting de facto or family lawyers is essential while signing a binding agreement. Their expertise ensures that the agreement is fair, legally valid, and serves the best interest of the child.
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Limited Child Support Agreement

A Limited Child Support Agreement is a written arrangement that may encompass both monetary payments and non-monetary contributions, such as coverage for health insurance and expenses for private education. It is suitable for short-term scenarios that do not exceed three years. Writing this agreement does not necessitate legal advice for any parties involved.

Child Support Payments

Prescribed Payments

In circumstances where the paying parent has under 14% childcare responsibility, certain payments are mandated. According to the Child Support (Registration and Collection) Act 1988, section 71C, as much as 30% of the child support owed can be accounted for through these payments, regardless of the other parent’s consent. The expenses covered under this include:

Costs related to school uniforms and textbooks
School tuition fees
Expenses for medical and dental care
Living costs, including mortgage payments or rent
Costs associated with vehicle use and upkeep
Expenses for childcare

Non-Agency Payments

A non-agency payment is a child support payment made directly from one parent to the other parent or to a third party on behalf of the child. This means that the payment doesn’t go through a government agency like Services Australia. Non-agency payments can include monetary transactions, the transfer of property ownership, or the provision of services.

The Department of Human Services must be convinced that there was a mutual agreement between both parents regarding this payment as a contribution towards child support.

What Does Child Support Cover?

Child support payments are aimed at covering the essential expenses involved in raising a child, encompassing:

Nutritional needs of the child, such as food purchases and dining
Accommodation costs for the child, including expenses like rent or mortgage, utilities, and upkeep
Expenses related to the child’s clothing and shoes
Educational expenses, including tuition, textbooks, and uniforms
Medical expenses, like visits to the healthcare provider, prescription drugs, and health insurance costs

What Does Child Support Not Cover?

These are some expenses that are not covered by child support payments. These expenses may include:

Tuition for private institutions: Expenses related to attending a private school are not included in child support payments, except when the parents mutually agree to split the cost.
Activities beyond the classroom: The costs associated with extracurricular activities, including sports, music instruction, or dance lessons, typically fall outside child support payments. Such expenses are often borne by the parent initiating the enrollment, with agreements usually made to share these costs equally or in proportion to each parent’s income.
Healthcare costs: Although child support may cover certain healthcare needs, such as prescriptions, it does not extend to significant medical costs, including dental procedures or surgery. Both parents are expected to agree on how these expenses are handled and shared.
Expenses for travel: Travel costs, including airline tickets or fuel, are not covered by child support unless the parents agree to share these expenses.
Personal belongings: The cost of personal items for the child, like toys, books, or electronic gadgets, is not covered by child support. It is typically up to the parent to purchase these items to cover the cost.

Factors Affecting Child Support

The process of determining child support payments is designed to guarantee that children are provided with sufficient financial support from both parents following a separation or divorce. Below is a summary of the crucial elements and procedures used in this calculation:

Understanding the Child Support Formula

Basic Principles

The Australian government’s formula takes into account the following factors when calculating child support:

Number of Children: The more children there are, the higher the support payment.
Age of Children: Payments may vary based on the age of the children, with higher amounts often required for older children.
Parental Income: Income levels for both parents are considered while determining child support. Higher-income parents pay more support.
Level of Care: The payment is influenced by the amount of time each parent dedicates to the child(ren), with the parent who spends less time being required to make higher payments.

Care Percentage Levels and Their Implications

Below Regular Care (0-14%): This means the child is with you for less than 52 nights per year or two nights per fortnight. The paying parent will not receive Family Tax Benefits (FTB) or other family payments.
Regular care (14-35%): This means the child is with you for 52-127 nights per year or 2-4 nights per fortnight. The paying parent will pay less child support but may not be eligible for FTB payments. They may be eligible for other benefits like Child Care Subsidy, Rent Assistance, and a Health Care Card.
Shared Care (35-65%): This means the child is with you for 128-237 nights per year or 5-9 nights per fortnight. Both parents may be eligible for FTB payments.
Primary Care (65-86%): This means the child is with you for 238-313 nights per year or 10-12 nights per fortnight. The primary caregiver does not need to pay child support.
More Than Primary Care (86%+): This means the child is with you for more than 86% of the year. The primary caregiver does not need to pay child support and may receive 100% of any FTB.

How is Child Support Collected?

Direct payment: The parent without custody may directly transfer funds to the parent with custody through bank transfers or cash payments. However, this method is not highly recommended due to challenges in tracking and enforcement.
Child Support Agency (CSA) collection: The Child Support Agency (CSA) has the authority to collect child support on behalf of the custodial parent and ensure its transfer. It is also equipped to enforce the payments if needed.
Private collection: Non-custodial parents have the option to send their child support payments to a private agency, which then forwards these funds to the custodial parent.
Salary deduction: The CSA is empowered to deduct child support payments directly from the non-custodial parent’s wages or salary through a process, even without their approval.
Interception of Tax Refunds: The CSA can seize the tax refund of a non-custodial parent and apply it towards overdue child support payments.
Lump sum payment: A non-custodial parent can pay a lump sum in child support, either voluntarily or as mandated by a court decision.

Objections to Child Support Decisions

There are 10 valid reasons, according to Services Australia, to request a change to your child support assessment:

High Costs of Spending Time with the Child: If the expenses related to travel, accommodation, or communication with the child exceed 5% of your adjusted taxable income, you may be eligible for a change.
Child’s Special Needs: If the child has special needs that significantly increase the cost of raising them, you can request a change.
Child’s Education or Training: If the child attends a private school or receives specialized training as agreed upon by both parents, you can apply for a change.
Child’s Financial Resources: If the child has sufficient income, assets, or earning capacity to reduce the need for parental support, a change may be warranted.
Prior Payments or Transfers: If you have already made substantial payments or transfers for the child’s benefit, you can request a change.
Childcare Costs: If you or the non-parent carer incur significant childcare costs for a child under 12, you may be eligible for a change.
Personal Financial Hardship: If your necessary expenses significantly limit your ability to support the child, you can apply for a change.
Parent’s Income or Financial Resources: If there has been a significant change in your or the other parent’s income, earning capacity, property, or financial resources, you can request a change.
Support of Another Child or Person: If you are supporting another child or person, and this significantly reduces your ability to support the child in question, you can apply for a change.
Support of a Resident Child: If you are supporting a resident child who is not legally your child, and this significantly reduces your ability to support another child, you can apply for a change.

Important Notes:

Simply being unhappy with your current child support assessment is not a valid reason for a change. You must provide evidence to support your claim for a change.

How Should Child Support Be Spent?

In Australia, it’s rare for parents to control how the other parent spends child support money. The parent receiving these funds is free to use them as they see fit, for either the child’s direct needs or other household expenses, without any mandated guidelines.

It’s considered inappropriate for the recipient of child support to then request the other parent to split every expense equally. This would unfairly require the contributing parent to pay more than their share.

On the other hand, the parent making the payments should not expect their contributions alone to fulfill all financial responsibilities towards their child, including the costs incurred during their stay with them or significant expenses like healthcare and clothing.

Legalities and Agreements

The specifics of child support can vary depending on the agreement between the parents. A legal guardian may work with the other parent to create a personalized agreement that reflects their unique situation. In such cases, seeking advice from family law attorneys is essential to ensure the agreement is both lawful and equitable.

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FAQs

Does superannuation impact child support calculations?
Superannuation contributions made from after-tax income are typically excluded from taxable income for child support calculations.

What specific expenses are typically covered by child support payments?
Child support typically covers ordinary living expenses related to raising a child, including food, education, clothing, medical care, and housing costs.

Are there any common child-raising expenses that are not typically covered by child support in Australia?
Generally, private health insurance and private tuition fees are not included in standard child support calculations. However, these expenses can be addressed through a private child support agreement.

How long is a parent generally required to pay child support?
Child support payments typically continue until the child reaches 18 years of age. However, in cases where the child requires ongoing financial support due to a disability or illness, adult child maintenance may be required.

Can the terms of a private child support agreement be changed?
Yes, a private child support agreement can be modified with the mutual consent of both parties. If disagreements arise, mediation or legal intervention may be necessary.

What happens if one parent relocates with the child?
Relocating with children without the other parent’s consent can lead to legal complications. It is crucial to consult with a child custody lawyer before making such a decision. If both parents agree to the relocation, the child support agreement should be updated to reflect any changes in care arrangements or related expenses.

by Sadia Saleem

How to Vary or Revoke an AVO, Restraining Order, or Intervention Order

Lawyers and police frequently encounter individuals seeking to vary or revoke Apprehended Violence Orders (AVOs). However, the process is more complex than simply having the complainants change their mind.

Let’s first discuss a few basics before we explain how you can file an application to vary or revoke an AVO form.

What is an AVO?

An Apprehended Violence Order (AVO) is a civil order judicially imposed to protect the aggrieved person (Person In Need of Protection – PINOP) from domestic or personal violence. The order imposes restrictive covenants upon the respondent to safeguard the aggrieved party from harassment, intimidation, or threatening conduct.

AVOs encompass Apprehended Domestic Violence Orders (ADVOs) and Apprehended Personal Violence Orders (APVOs). They may be granted on a provisional, interim, or final basis or as variations. These orders are also known as restraining orders or intervention orders, and these terms are used interchangeably in this blog.

Importance of Proper Service for Varying or Revoking an AVO

After the restraining order is issued, its conditions can be changed (varied) or canceled (revoked). However, a court cannot vary or revoke an AVO if it hasn’t been properly served. Failure to serve it deprives the defendant of a fair trial and renders the court’s decision invalid.

The protected person or the police officer who served the AVO must prove to the court that it was properly and timely delivered. This involves presenting the affidavit or other documentation.

Personal service is the preferred method, involving a police officer or protected person delivering a copy of the order to the defendant. In cases where personal service is impracticable, alternate methods may include:

Substituted service (leaving the AVO at the defendant’s usual residence or business)
Publishing the AVO in a newspaper
Electronically informing the defendant

A court can vary or revoke an AVO under Section 73 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

Varying an AVO

Varying an interim or final intervention, restraining, or apprehended violence order means changing its conditions. Any interested party (Police, defendant, guardian, PINOP, or the Secretary of the Department of Family and Community Services) can apply.

Varying an order includes:

Extension of the duration of the AVO: The protected party or applicant can apply for an extension before the AVO expires. Even if the application is made on the last day, the order remains in effect for 21 days until the court decides on the next steps. If there’s an objection, the court will request written statements from both parties.
Reduction of the duration of the AVO: A respondent may request a reduction in the AVO’s duration due to a change in circumstances under Section 73 of the Crimes (Domestic and Personal Violence) Act 2007.
Adding orders to the AVO: If additional protection is needed, a police officer can request new conditions be added to the AVO.
Removing orders from the AVO: If certain conditions are deemed unnecessary, a request to remove them can be made. If the protected party objects, written statements from both sides will be required.
Modifying existing orders of the AVO: Either party can apply for a modification of the existing orders if circumstances have changed.

Revoking an AVO

When a court revokes an AVO, the order is canceled, and its conditions are no longer enforceable. You can apply for revocation if there is a significant change in circumstances or if the restrictions negatively impact you, such as in cases where firearm possession restrictions interfere with employment.

If the protected party objects, both parties must submit written statements explaining their positions.

Since varying or revoking any order involves complex steps, it’s essential to consult a criminal lawyer to determine the best course of action.

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Reasons to Vary or Revoke an AVO

To successfully have a court vary or revoke an AVO, you must demonstrate a significant change in circumstances. Failure to do so could result in the court rejecting your application. Consulting an AVO lawyer before applying is strongly advised.

Please note that a PINOP cannot unilaterally modify or vary AVO orders. Accepting an invitation from the PINOP while the AVO is still in effect would constitute a contravention. Any changes to the AVO require formal court approval.

Varying or Revoking Provisional Orders

If all protected individuals are adults: Both the defendant and the PINOP have the right to apply for a variation or revocation of the provisional AVO.
If the protected individuals include a child: The respondent cannot initiate an application to vary or revoke the AVO. The provisional AVO must first be converted into an interim order before any variation can be sought.

How to Vary an AVO

To vary or revoke an AVO, follow these steps:

Submit Application: Complete an Application to Vary or Revoke Apprehended Violence Order form. This application is not available online, but an expert AVO lawyer can assist you in drafting it.
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File with Court: Submit the form to the relevant Local Court. If unsure which court to apply to, follow this guide:
Serve Parties: Deliver a copy of the application to the Police and other affected parties.
Attend Hearing: Appear before the Local Court on the scheduled date to present your arguments. If you miss the hearing, your application will be dismissed.

How to Revoke or Drop an AVO

If the PINOP no longer needs protection due to a change in circumstances, either party can apply to drop the AVO. Additionally, if neither party was present when the ADVO was issued (such as in cases where a police officer requested an AVO on behalf of a victim), it’s possible to file an appeal, which could result in the order being revoked.

We recommend taking the following steps if you are considering applying to revoke an AVO:

Submit a Withdrawal Request: Consult an AVO lawyer to draft a letter requesting the withdrawal of the AVO. This letter should explain the changed circumstances and reasons for the withdrawal.
File Representations with Police: The defendant’s lawyer should submit representations to the Police requesting the AVO’s withdrawal. A skilled AVO lawyer can help draft these representations effectively.
Await Police Decision: Allow the Police to review the representations and decide whether to withdraw the AVO.
Proceed to Court if Necessary: If the Police do not withdraw the AVO, a legal professional can represent you in court to negotiate or contest the AVO.

For Private AVOs, the protected person can apply directly to the court to dismiss the order by submitting a written request.

Can Police Continue to File Charges Even if the AVO is Dropped?

Under the Crimes (Domestic and Personal Violence) Act 2007 (NSW), police are required to act in the public interest and prosecute individuals suspected of criminal offences, even if the AVO is dropped. This includes relying on the victim’s sworn statement, which is sufficient to initiate charges.

FAQs

1. What happens if the victim doesn’t want the accused to be charged?
The PINOP cannot decide if the police should charge the accused. If there’s enough evidence, the police will likely continue with the charges.

2. Can a PINOP withdraw the AVO put by the Police?
No, only a magistrate or the police can modify or revoke the AVO initiated by the police.

3. Can you appeal an AVO?
Yes, if you are the defendant, you have 28 days to appeal the AVO decision.

4. What if the PINOP doesn’t attend the court hearing?
If the PINOP doesn’t attend, the court may either drop the AVO or issue a warrant for their arrest.

by Sadia Saleem

Family Law, News & Blogs

Are Bigamy, Polygamy and Polyamory Illegal in Australia?

What is Bigamy?

In Australia, according to the Marriage Act 1961, marriage is defined as a union of two people, given that they are:

Unmarried at the time of the marriage ceremony
Of marriageable age
Not marrying a person in a prohibited relationship
Able to freely consent to the marriage

Bigamy occurs when an individual who is already in a marital union enters into marriage with a third person. This includes marriage ceremonies in foreign countries. In simple terms, bigamy is when one individual is married to more than one person simultaneously. In other words, it refers to the scenario where a person has more than one spouse simultaneously.

Bigamy vs Polygamy

Polygamy involves being married to more than one person simultaneously, so one must engage in bigamy to experience polygamy. It is the general union of three or more people in marriage. There are three forms of polygamy:

Polygyny, where a man is married to several women
Polyandry, where a woman has multiple husbands
Group marriage, in which all members enter into a marriage-like contract, potentially involving multiple men and women

Is Bigamy a Crime in Australia?

Bigamy is a criminal offense under Section 94 of the Marriage Act 1961 (Cth). It’s unlawful for an individual who is already married to enter into another marriage while the initial legal marital status remains in effect.

According to Section 92 of the New South Wales Crimes Act 1900, bigamy is also a criminal offense. It states that a married person shall not marry another person while the initial contract is still legally valid.

In Australia, various legislative measures are in place to discourage bigamy. According to Subsection 23B(1)(a) of the Marriage Act 1961 (Cth), any second or subsequent marriage is void.

Marriage Ceremony Requirements

According to Section 42, a marriage ceremony must be commenced in the presence of an authorized marriage celebrant, for instance, a priest. It’s also necessary to provide the celebrant with the official documentation. Additionally, a Declaration of No Legal Impediment to Marriage needs to be completed. When individuals sign the form, they must agree that:

They are not currently married to another person
They are not in a prohibited relationship
They are both of marriageable age at the time of the marriage
They are not marrying a close relative such as a parent, grandparent, child, grandchild, brother, sister, or adopted child
They are not marrying a descendant or ancestor
No other circumstances would be a legal impediment to the marriage

While Australia acknowledges marriages that occur abroad, it does not legally recognize polygamous marriages.

Polygamous Marriages in Australia

Under Section 6 of the Family Law Act 1975, polygamous marriages may be recognized in Australia if a person got married in a country where polygamy is allowed. However, The Marriage Act 1961 (Cth) may take precedence over Section 6 of the Family Law Act 1975 when considering polygamous marriages entered into overseas, making the recognition of overseas polygamous marriages difficult.

What is the Punishment for Bigamy in Australia?

The penalty for bigamy can include imprisonment for up to 5 years. The court can also penalize a person who knowingly undergoes a marriage ceremony while already married to another person. In New South Wales (NSW), the penalty for bigamy can include imprisonment for up to 7 years.

Bigamy is an offense under both state and commonwealth legislation. You might wonder which penalty the accused will be charged with. Section 94 of the Marriage Act 1961 precedes any state or territory laws related to bigamy, meaning the court decides on a penalty in accordance with federal law.

Federal Law on Bigamy

According to Subsection 94(1A) of the Marriage Act 1961 (Cth) and the Criminal Code Act 1995 (Cth), you are guilty if you are married to two different people simultaneously, regardless of your intent. If you are charged with the offense of bigamy, a Magistrate in the Local Court will hear your case. If proven guilty, you will be penalized according to commonwealth law unless you can successfully defend the charges.

Defense to Bigamy

Mistake of Fact

Belief of Spouse’s Death

If the defendant believes that their spouse was deceased at the time of the second marriage, they can use this as a defense. But this belief must be based on reasonable grounds. For example, receiving the death certificate of the spouse or receiving news from credible sources.

Spouse’s Absence

If the spouse has been absent for seven years or a longer period, and the defendant has reasonable grounds to believe that their spouse is dead, this can also be used as a defense. If the defendant had tried to locate their spouse but was unable to do so, this could strengthen the defense.

Evidence Requirements

Certificate of Death

Section 94(7A) of the Marriage Act 1961 (Cth) allows courts to accept certificates from Australia or foreign countries as evidence. If the defendant has a death certificate for their spouse, it can be presented as evidence to support their defense.

What to Do in Case of Bigamy

If you have committed bigamy, please seek legal advice from a criminal lawyer as soon as possible.

If you find out that your spouse is involved in bigamy, you must establish that you are their first spouse. In that case, your marriage is legal. However, if they married you while they were already married, you should immediately file for a Decree of Nullity with the help of a family lawyer.

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Decree of Nullity

If an individual marries another person while already married, the second marriage is legally void according to Section 23 of the Marriage Act 1961 (Cth). Despite this, an application for a Decree of Nullity must be submitted to the Family Court of Australia. Obtaining a Decree of Nullity means the marriage is legally considered null and void as if it never occurred.

A party may request an annulment of a bigamous marriage. It can only be sought for the second marriage, which is considered invalid because the first marriage remains in effect and can only be terminated through divorce.

A marriage might also be considered void if one of the parties is incapable of understanding the nature and effects of the marriage ceremony or is unable to consent due to the marriage being forced.

When issuing a Decree of Nullity, the judge also determines whether the circumstances warrant a referral for criminal prosecution. Before you file for the decree of nullity, we recommend that you consult a family lawyer.

False Statement

In Australia, for a marriage to take place, both parties must sign a written notice and declaration specifying their current conjugal status and belief that there is no legal impediment to the marriage. On this notice, there is a specific box that requires parties to tick, stating: “Neither of us is married to another person.”

It is an offense punishable by eight months imprisonment under Section 104 for a person to give a notice to an authorized celebrant or sign a notice after it has been given, to the knowledge of that person, where the notice contains a false statement, an error, or is defective.

For example, if a person who has previously been married or is currently married declares that they have not been married or is not currently married, they may be committing the offense of giving a defective notice. Giving defective notice is outlined under Section 42 of the Marriage Act 1961 (Cth), which states: A person shall not give a notice to an authorized celebrant under section 42, or sign a notice under section 42 after it has been given, if, to the knowledge of that person, the notice contains a false statement or an error or is defective.

What is Polyamory?

Polyamory means having an open, intimate, or romantic relationship with more than one person at a time without having any formal marriage contract. Polyamorous people can have any sexual orientation. Polyamorous relationships have many different types, including, but not limited to:

Hierarchical poly
Anchor partners
Triad
Quad
Polyfidelity
Vee
Kitchen table polyamory
Solo polyamory
Polycule

Is Polyamory Legal?

Yes! Polyamory is legal. The Family Law Act states that polyamory—the act of polygamy without parties getting married—is not an offense. Under this law:

An individual can have multiple de facto relationships simultaneously
Multiple de facto relationships can exist even if a person is married to someone else
The act of polygamy can be legal only if a person does not go through marriage ceremonies with multiple people

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FAQs

Can I bring my second wife to Australia?

As long as you are divorced or your first wife is not legally married to you anymore, you can bring your second wife to Australia. You can sponsor up to two overseas partners in your life, with each application having to be at least five years apart.

Can I sue my spouse for cheating?

If your spouse is not married to the person they are involved with or having a relationship with, then according to the law, this is polyamory, which is legal and is a private matter between two consenting individuals. Infidelity is not a crime in Australia.

If polygamy is a part of my religion, can I do a second marriage in Australia?

Even though polygamy is a standard practice in some religions and parts of the world, in Australia, it is not recognized and will be illegal regardless of your intent, religion, or country of origin.

by Sadia Saleem

Family Law, News & Blogs

What is an AVO? Know The Process, Steps and Implications

Violence, as vividly portrayed in fictional narratives, e.g., the chilling events of the Red Wedding in Game of Thrones or the indiscriminate brutality exhibited by the Mountain, can come from people we don’t know or the people closest in our circles. While the realm of Westeros presents a fictional landscape of unchecked violence, individuals within the Australian jurisdiction are safeguarded through the implementation of Apprehended Violence Orders (AVOs).

If you want protection from violence, want to apply for an AVO, or have received it, then keep reading. We will explain everything to make it easier for you to proceed, or you can directly contact our AVO lawyer.

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What is an AVO?

An AVO, a civil order, is a legal contract between two parties—the defendant and the Person In Need Of Protection (PINOP), aimed to protect the PINOP from harassment, violence, intimidation, or other threatening behaviour by the defendant by imposing restrictive covenants upon the respondent. AVOs encompass both Apprehended Domestic Violence Orders (ADVOs) and Apprehended Personal Violence Orders (APVOs). They may be granted on a provisional, interim, or final basis, or as variations thereof.

Provisional AVOs

If there’s a pressing concern of threat to the aggrieved by the defendant, then a police officer issues an emergency AVO order without a formal court hearing.

Interim AVOs

This is a temporary AVO order, issued by the court before the final decision, to protect the victim from any immediate violence threat.

How does an AVO work?

An AVO operates by establishing injunctive relief measures that prevent the defendant from engaging in specific behaviours that could endanger the aggrieved person. For example, the defendant may not be allowed to contact the protected person physically or by phone, visit their home or workplace, or be in their company within 12 hours of consuming alcohol.

Difference Between AVO, Restraining Order, and Intervention Order (IVO)

Since every state has a different jurisdiction, each state has a different name for the order which prohibits and restrains other persons from contacting PINOP.

Queensland & Northern Territory and Australian Capital Territory: Domestic Violence Order
Victoria: Intervention Orders (IVO)
Western Australia: Family Violence Restraining Order
South Australia: Formerly called Restraining Orders, now called Intervention Orders
New South Wales: Apprehended Domestic Violence Order (ADVO)
Tasmania: Family Violence Order

Types of AVO

AVO is of two types: Apprehended Personal Violence Order APVO and Apprehended Domestic Violence Order ADVO

	APVO (Apprehended Personal Violence Order)	ADVO (Apprehended Domestic Violence Order
Purpose	Protects a person from violence, harassment, intimidation, or stalking by someone they do not have a domestic relationship with.	Protects a person from violence, harassment, intimidation, or stalking by someone they have a domestic relationship with (e.g., spouse, partner, family member)
Who Can Apply	Any individual who feels threatened by someone outside of their domestic relationship.	Individuals in a domestic relationship, police on behalf of victims, or victims themselves.
Types of Relationships Covered	Non-domestic relationships, such as neighbours, colleagues, acquaintances, or strangers.	Domestic relationships, including spouses, partners, former partners, family members, and those in a household.
Common Reasons for Issuance	Stalking, harassment, violence, or intimidation by someone outside the family or household.	Domestic violence, abuse, threats, harassment, or any form of violence within a domestic setting.
Legal Process	It is a similar process to ADVO, but the relationship between the parties is non-domestic.	Typically involves police intervention; can be applied for by the victim or police on the victim’s behalf.
Duration	It is generally temporary but can be extended or made permanent by the court.	Similar to APVO; can be temporary or made permanent depending on the court’s decision.
Impact on the Defendant	It can affect the defendant’s personal and professional life, but does not carry the same social stigma as ADVO	More severe social implications due to the domestic nature; can affect child custody, employment, and social relationships.

AVO Application and Process

If you are the applicant, you can apply for an Apprehended Violence Order in either of the two ways:

Police Application

If you choose to ask the police to apply an AVO against the defendant, they will decide if there are sufficient grounds to apply for an AVO. They will determine the conditions and type of AVO according to your situation and will give you and the defendant a hearing date in court.

It is important to note that AVO proceedings are distinct from criminal prosecutions. While AVOs often arise from alleged criminal offenses such as assault, intimidation, threats, or property damage, the outcomes of these two processes are independent.

Private Application

If you choose to apply privately through the local court, you will be required to explain to the magistrate why you need an AVO. The magistrate will give you a hearing date and summon the defendant too. It’s crucial to seek advice from an expert AVO lawyer before applying for an AVO, as the application can be refused if the court or police doubt the genuineness of your fears from the defendant.

Once a hearing date is announced, whether the defendant consents to AVO or not, the case will proceed accordingly. In the case of a police application, a police prosecutor will represent you. However, in the case of a private application, you will need an AVO attorney.

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As a Defendant

If you are served with an AVO, you have three options:

AVO Orders

To ensure the safety and protection of a PINOP, the court may impose different types of restrictions and conditions on the defendants. These conditions include:

Orders About Behaviour

The order prohibits the individual from:

Physically or verbally harming the protected person.
Engaging in intimidating or harassing behaviour.
Damaging or destroying the protected person’s property.
Contacting the protected person through any means, including in person, by phone, or electronically.
Engaging in any behaviour that causes fear or apprehension of harm.

Orders About Contact

No Contact: The defendant must not contact or approach the protected person in any way, except through a lawyer. This includes in-person contact, electronic communication, and attempts to contact them indirectly.
Stay Away: Defendants must stay away from places the protected person is likely to be, such as their home, school, or workplace.
Substance-Free Interaction: The defendant cannot be with the protected person for 12 hours after consuming alcohol or drugs.
No Stalking: The defendant must not try to find out where the protected person is or monitor their activities.

Specific Conditions Related to Children – Child-Related Contact

If the defendant has children together with the protected person, any contact with them must comply with existing family law orders or be agreed upon in writing by all parties involved, including any relevant government agencies or legal guardians.

How Do AVOs and Family Court Orders Interact?

Family Law Orders supersede conflicting AVO provisions. For instance, shared custody arrangements under a parenting order override AVO contact restrictions. A Magistrate may exercise discretion to suspend a Family Law Order, enabling the full force of an AVO. To ensure the efficacy of these orders, applicants for AVOs must disclose any relevant Family Law Orders to the Court.

Consequences for Defendants

Even though an AVO is not a criminal charge, an ADVO can have very severe repercussions compared to an APVO on your visa, citizenship, employment, and family matters.

Consequences on Visa and Citizenship

Consider, for instance, if you have applied for a visa or citizenship. Then, as a defendant, consenting to an ADVO, even without admitting to the allegations, means long-term consequences. For citizenship, Section 21(2)(h) of the Australian Citizenship Act 2007 (Cth) and for visas, Section 501 of the Migration Act 1958 (Cth) emphasizes the importance of “good character.” An ADVO can be seen as evidence of poor character, making it difficult for you to obtain or maintain a visa or become a citizen.

Consequences on Employment

If the PINOP in the ADVO is a child, you cannot easily obtain a “Working with Children Check” (WWCC), which is a requirement for most jobs nowadays, even if you will not have any direct contact with the children when on the field.

Consequences on Family Matters

The court’s primary concern is the child’s best interest, and an ADVO can influence this decision. One parent might use the ADVO to restrict the other parent’s time with the child, both temporarily and permanently. Supervised visits or limited contact hours can be imposed.

Consequences on Personal Choices

An ADVO can significantly impact your personal choices, such as the restriction on gun ownership. If you possess firearms, they will be seized upon the issuance of an ADVO. Your gun license is automatically revoked for a decade. Even if the ADVO is subsequently cancelled, regaining your gun license requires demonstrating your suitability to own a firearm.

Remember that the consent of the PINOP is not a defense to a breach of an Apprehended Violence Order. The defendant bears sole responsibility for compliance regardless of the victim’s expressed consent to contact them.

What Happens if the Defendant Breaches an AVO?

If an existing AVO is breached, what happens next depends on whether you’re the defendant, PINOP, or a witness to the alleged contravention.

If You Are a Defendant

You should know that an AVO itself does not result in a criminal record. However, the consequences of breaching an AVO can be severe.

Breaching an AVO is a criminal offense. If you’re found guilty of violating an AVO, you may be arrested and brought to court, where you may be fined up to $5,500 or imprisoned for up to two years. The conviction will be recorded on your criminal history as a domestic violence offense.
Long-term implications: This criminal record can negatively impact future legal proceedings, such as bail applications or sentencing for other crimes.

Seek Legal Advice

Consulting a criminal lawyer is crucial to understand your rights and potential defences if you’ve been charged with breaching an AVO.

Remember: If you have been charged with contravening an AVO, it is highly recommended that you speak to a criminal lawyer before speaking to the police, so you understand your legal rights and options. You may also be arrested and refused bail, which may require you to make an urgent bail application in court.

If You Are a PINOP or a Defendant

Report to the police and provide as much detail as possible. If police become aware of a potential AVO breach by the defendant, they will investigate this. This means they will contact the PINOP and witness to provide a written or video statement, which will then form part of the police evidence.

Application to Vary or Revoke AVO

Once an AVO is issued, you can apply to vary or revoke it. This includes changing the duration of the AVO, adding, deleting, or changing orders. To apply, you are required to visit the relevant local court and seek help from the registry staff to complete an application to vary or revoke AVO form. The registry staff will give you a court hearing date, and if you don’t appear in court, your case will be dismissed.

FAQs

Q: How can I find out if someone has an AVO?
In Australia, you cannot check if someone else has an AVO. Privacy laws restrict access to criminal records to the individuals themselves.

Q: How long does an AVO last?
A standard AVO in NSW lasts for 12 months. However, the court can extend this period up to 2 years or any other specified time.

Q: Can I appeal an AVO?
Yes, the defendant can appeal a final AVO within 28 days of the order being made. Appeals are heard in the District Court.

Q: How much does it cost to get an AVO?
The cost of an AVO can vary. While the court may order the police to reimburse some costs, the PINOP will likely incur additional expenses. Costs typically range from $2,000 to $5,000.

Q: How long does it take to get an AVO served?
An AVO is typically served on the defendant within 1-7 days of the application being made.

by Sadia Saleem

Family Law, News & Blogs

Binding Financial Agreements: Protect Your Assets and The Future

Binding Financial Agreements

These agreements can be executed prior to or during the marriage or de facto relationship or after the marriage or de facto relationship ends. They outline and address the financial and property divisions without going to court.

Purpose of binding financial agreement:

The versatility of Binding Financial Agreements (BFAs) makes them helpful in detailing the financial obligations between the parties so that they can decide on various financial matters, including:

The division of property and assets acquired before entering the marriage or de facto relationship upon separation
The determination of spousal maintenance to be provided after the separation
The approach to handling liabilities incurred individually or together in the future
The division of an individual’s salary or wages throughout the relationship
The management of pre-existing debts.

Types of binding financial agreements

There are three types of binding financial agreements depending on the stage of the relationship:

Prenuptial agreement
Cohabitation agreement
Postnuptial agreement

Prenuptial Agreement:

This binding financial agreement is outlined and signed before the marriage. It protects assets, provides mental peace, and offers tax benefits to people with significant pre-existing assets, inheritances, or children from previous relationships. It also saves parties from lengthy court proceedings.

Cohabitation Agreement:

A Cohabitation Agreement is a binding financial agreement for an unmarried, romantically involved couple who plan to live together. It outlines the rights and obligations of each partner and details how the couple’s property should be divided if they decide to part ways. This document is suitable for you and your partner if you both are

In a de facto relationship
Not legally married to one another
Not related by blood
Already cohabiting or intending to share a residence

Postnup Agreement:

A postnuptial or post-marital agreement or postnup is a contract between spouses after marriage. It outlines the division of financial assets and responsibilities in case of divorce. It covers scenarios like the distribution of marital property upon one spouse’s death, terms for separation, and issues regarding alimony. However, it cannot address child custody or support as it is always decided in the best interest of the children at the time of separation.

How to make a financial agreement legally binding?

A Binding Financial Agreement (BFA) is a legally binding document. All involved parties are obliged to comply with the terms and conditions of the agreement.

For a BFA to be considered legally valid and binding, it is essential that

all parties willingly engage in the agreement
have a comprehensive understanding of its consequences
have received advice from independent legal counsel.

Independent Legal counsel must ensure that all parties are fully informed of their rights and responsibilities. Moreover, it helps to prevent undue influence or coercion.

Can a binding financial agreement be overturned?

While Binding Financial Agreements (BFAs) offer a legally enforceable contract for financial dealings, they can be challenged. Under specific conditions, a court may decide to overturn a Binding Financial Agreement. Such conditions include instances where it can be clearly shown:

Fraud or Misrepresentation:This includes scenarios where one party has been dishonest or provided misleading information in the formulation of the agreement.
Undue Influence or Duress:It means that one party was compelled or pressured into agreeing without voluntarily consenting to the agreement.
Unconscionable Conduct:This is when the terms in the agreement are significantly in the favour of one party, rendering it unjust.
Material Change in Circumstances:

This applies if there has been a significant change in the conditions of the agreement.

Consider, for instance, Thorne v Kennedy. Kennedy possessed assets worth around $18 million, while Ms. Thorne had negligible financial resources and no children. Ms. Thorne had moved to Australia from abroad, intending to marry Mr. Kennedy. Just 11 days before their wedding, Mr. Kennedy took Ms. Thorne to a lawyer’s office to sign a Binding Financial Agreement. He told her she should sign the agreement; otherwise, he would call the marriage off.

Prior to signing, Thorne was advised to get legal advice independently. She was informed that the agreement was heavily biased in favor of Mr. Kennedy and offered her no benefits in case of a divorce.

Despite the advice, Thorne signed the Agreement four days before their wedding, and they got married as planned. The High Court of Australia later annulled the prenuptial agreement for several reasons. This includes:

Whether each party is given the right to negotiations
What is the emotional state of each party, and is there any overt or covert pressure to conclude the relationship?
Whether each party is given right to reflect upon the consequences of the BFA
What’s the financial position of each party, and whether they have received individual advice?

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What do BFAs Cover?

Under Section 90D of the Family Law Act, a binding financial agreement covers property division. This includes division of assets, real estate, vehicles and investments. Apart from that it covers debts and liabilities, superannuation funds division and spousal maintenance.

Family Lawyer Role in Binding Financial Agreements:

You are required to get independent legal advice from an expert family lawyer to:

Ensure Complete Transparency:

It is important to ensure that all the parties involved share their financial details to make an accurate contract.

Seek Independent Legal Counsel:

All the parties need to seek independent legal advice to completely grasp the implications and consequences of the contract.

Facilitate Negotiations and Mediation:

Lawyers will negotiate to achieve an equitable and balanced deal that satisfies the requirements of everyone involved.

Understand Enforceability:

Your lawyer will know how enforceable the contract is by identifying possible loopholes.

Why a Binding Financial Agreement is important?

Safe Financial Planning: BFAs provide a clear financial blueprint that minimizes ambiguities and possible disputes if a relationship ends.
Asset Safety: The agreement ensures that personal assets are protected and equitably distributed based on the mutually agreed terms.
Personalized Agreement: The parties can customize the agreement to suit their unique financial situations.
Efficiency and Economic Benefits: Establishing an agreement in advance can lead to significant savings in terms of both time and legal expenses for both parties in the future.

Do BFAs have any disadvantages?

Overall, the benefits of BFAs outweigh the disadvantages. However, considering the nature of the agreement, sometimes, complexity arises, often necessitating the input of legal professionals. Additionally, BFAs might not offer the necessary adaptability to accommodate future situations like income variations, employment changes, or alterations in family structure.

How can a BFA be terminated?

Mutual Decision:

Should both parties decide to end the agreement, they can mutually execute a new agreement to supplant the current one.

Consent Order:

Parties have the option to seek a court’s decision to nullify the agreement if there are legitimate grounds for it

Termination Clause:

The agreement might specify an expiry date or conditions specifying the circumstances under which the agreement will terminate.

In conclusion, where Binding Financial Agreements (BFAs) can serve as an efficient method for safeguarding the assets of an individual, it is important to ensure that it is just and balanced to prevent future disputes.

For this purpose, we advise our clients that such agreements must be formulated by a family lawyer This approach significantly reduces the likelihood of the agreement being contested and potentially invalidated by a court.

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FAQs

How much does a binding financial agreement cost?

Lawyers typically charge clients between $3000 and $5000 to prepare a Binding Financial Agreement (BFA).

Are binding financial agreements enforceable?

To ensure a BFA is legal and enforceable, it must adhere to the rigorous requirements outlined in the Family Law Act. This mandates that each party willingly agrees to the BFA and is fully informed. For a BFA to be recognized as valid, there’s a prerequisite that all involved parties sign, acknowledging they have received independent legal advice.

How to get a legally binding financial agreement?

The fundamental components that must be present for the agreement to be considered a legally binding contract include

mutual agreement, demonstrated through a valid offer and acceptance
sufficient consideration
the legal capacity of the parties
the legality of the agreement’s terms

How to write a binding financial agreement?

To write a BFA, please consult a family lawyer. You can not write it yourself because it would not be legally binding or enforceable.

Does a binding financial agreement need to go to court?

Binding Financial Agreement (BFA), doesn’t usually require court’s approval to be valid as long as legal standards are met and both parties agree. However, any party violates it, court intervention may become necessary to resolve disputes.

by Sadia Saleem

Family Law, News & Blogs

Family Violence in Australia: Signs, Statistics, and Legal Support

It’s a Saturday night, and you are having family time with your spouse and children. You turn on the news, and a news story comes up:

“Father of two murders his wife and children.”

Some reported he was a respectable businessman, and some said he was a nice guy. Nobody saw it coming.

Gold Coast mother, Teresa Bradford – yet another victim of domestic violence.

You turned the news off, but it did not change the fact that, in Australia, every week, a woman loses her life to domestic abuse.

The idea of home and family brings a feeling of security and safety to the individuals living there. Each culture has its sayings and songs about the importance of home and the comfort and security to be found there. Yet, for many people in Australia, home is a place of suffering. This is particularly true for women.

What is family violence?

Family violence refers to the abusive and violent behavior of a family member (intimate partner, parents, caregiver, guardian, or child) towards another member of the family to control, humiliate, threaten, or scare them, making them feel unsafe. Domestic Violence is a broad term covering a range of patterns of behavior. It includes (but not limited to)

Psychological abuse
Emotional Abuse
Sexual Abuse
Spiritual abuse
Gaslighting
Physical abuse

Most people look for the physical signs of abuse. However, in most cases, the cornerstone for domestic violence is power and control, and it’s very difficult to recover from this type of abuse. Domestic and family violence abusers, generally, don’t leave physical marks, and hence it’s not easy to recognize the abuse if you aren’t well aware of it. If you are unsure about your situation, don’t hesitate to reach out to family law experts who can help you identify the signs of domestic abuse and provide the support you need.

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If you or someone you know is experiencing any of these warning signs, it’s time to reach out for help.

Your family member:

Threatens you that they will hurt you or your loved ones, including pets
Threatens you with self-injury
Gaslights you
Socially isolates you and makes you abandon your friends and other family members or restricts you to home
Doesn’t provide you with essential financial support if they are legally bound for it
Controls your life choices
Makes you question your memory and mental health
Enforces their decisions on you in different matters eg, having or terminating a baby
Makes you take drugs you aren’t prescribed by a doctor
Touches you improperly
Have sex with you without your consent
Enforces their religious beliefs on you
Monitors your social accounts and interactions with other people without your permission.
Hits, kicks, punches, or threatens you with a pointed object
Denies you liberty and autonomy
Have coercive control over your life

These are some of the examples of the ways in which a family member can abuse you.

The effects of domestic violence on victims range from physical injuries to mental health issues such as depression and anxiety, social isolation, financial dependence, and even death in extreme cases. On average, one woman a week is murdered by her current or former partner. And the impacts are generally long-lasting and don’t end with abuse.

“I’ll never be completely healed; it’s something you live with but doesn’t dominate your life anymore.”

Gypsy

In the case of children, whether they witness it or experience it, it can severely impact their psychological and emotional growth and increase the risks of behavioral problems, e.g., anxiety, depression, academic problems, etc.

Statistics on Domestic Violence

1 in 4 women and 1 in 14 men have experienced violence by an intimate partner since the age of 15. These statistics have increased as compared to the previous report of the Australian Institute of Health and Welfare 2018, reporting domestic violence victims 1in 6 women and 1 in 16 men.
According to the Miles and Bricknell 2024 Report, 84 (female 46, male 38) out of 220 were domestic abuse victims, out of which:

- 38 were killed by an intimate partner
- 16 were killed by a parent
- 16 killed by a child
- 4 killed by a sibling
- 10 killed by a family member other than a child, parent, or sibling

The most common forms of abuse (in cases where male abusers killed the female) were:

- emotional and psychological abuse (82%)
- physical abuse (80%)
- social abuse (63%)
- financial abuse (27%)
- sexual abuse (16%) (ADFVDRN and ANROWS 2022)

It’s important to note that victims often experience multiple forms of abuse simultaneously. While physical and emotional abuse are prevalent, many survivors also endure financial, social, and sexual abuse. This overlap means that the sum of abuse types exceeds 100%.

Australian laws against family violence:

The alarming rise in the cases of domestic and family violence has led to the changes in the family law act 1975, resulting in harsher penalties for the abusers by the government of Australia.

Offenders now face increased jail terms, with the possibility of life imprisonment according to the gravity of the crime committed. Not only this, there are more compensations available for the victims now, e.g., paid domestic violence leave, “leaving violence payment” program etc. These legislative changes reflect the increasing societal awareness of the devastating consequences of domestic violence and a determination to create a safer environment for all.

Apply for AVO:
If you are feeling unsafe and threatened and want protection from the abuser then you can apply for an AVO. If you have already applied for it and want to update or vary an AVO, you can directly book a free consultation with our AVO lawyer to help you explore your options. If you have received the AVO and want to revoke it, we are offering you complimentary consultations because we know the potential consequences of AVO on your family and professional life.

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FAQs

How do you prevent domestic violence?

Firstly, create a safety plan: inform trusted friends and family members, pack essential documents, medications, look out for shelters for emergency evacuation.

Secondly, document the abuse by recording incidents, evidence, calls, voicemails, and photographs in case of injuries.

Lastly, seek legal support.

What to do if someone threatens you in Australia?

You can apply for a restraining order, also known as a family violence protection order, if it involves family members or a personal safety order for non-family members. Alternatively, you can contact the police or call 000 for emergency assistance.

Am I in an abusive relationship?

If your answer is yes to most of the questions below, then you are, in fact, in an abusive relationship and need urgent help,

Do you ever feel uncomfortable or afraid around your partner?
Does your partner check up on you constantly or insist on knowing where you are all the time?
Has your partner ever insisted on reading your text messages, emails, or social media?
Does your partner lose his or her temper often?
Are you afraid to disagree with your partner?
Has your partner ever put you down or insulted you in front of others?
Has your partner ever controlled how much money you have and/or how you spend it?
Does your partner act overly jealous or accuse you of cheating often?
Have you stopped seeing friends or family to avoid upsetting your partner?
Has your partner ever locked you in the house?
Has your partner ever blamed you for the way he or she acts?
Has your partner ever made you feel uncertain or made you doubt your memory of events?
When your partner is angry, does he or she throw or break things to scare you?
Have you ever been frightened that your partner might threaten the safety of you or your children?
Has your partner ever threatened to hurt you or your children?
Has your partner ever hurt you or your children?
Has your partner ever forced you to have sex with them?

by Sadia Saleem

Family Law, News & Blogs

What is a Prenup? – How Is It Beneficial for You?

I have worked hard from my teenage years to adulthood to save money and build a stable financial future. When I was starting a new chapter, marriage, I was thinking about all the possibilities to protect my financial future with my partner. Although I have made that decision after giving it a lot of thought, it is always best to prepare yourself for the worst.

My main concern was to protect my assets even if I get a divorce in future or get separated from my husband. I looked for all the options and after thoroughly researching and understanding the Family Law Act 1975 Australia, I learned about prenuptial contracts. It is your key to a happy married life and in an unfortunate scenario, to a peaceful divorce.

“If you do get married, get a prenup. It’s not about money at all. It’s about having a document that states how you’ll dissolve your marriage while you still have a shred of respect for each other.”

– Alec Baldwin –

You must be curious by now, “What is a prenup, and what are the reasons for getting a prenuptial agreement in Australia?” Let me get you to the depth of it through this blog. It will summarise all the details and facts I collected through my research.

Let’s start with understanding “what is a prenup?”

What is a Prenup?

A prenup, also known as a prenuptial agreement in Australia, is referred to as a Binding Financial Agreement (BFA) by the Family Law Act 1975. A prenup is a legal document, a binding financial agreement, between a couple getting married soon. This agreement is also legal for couples planning to live in a de facto relationship instead of marriage.

A premarital agreement is a legal record of each partner’s financial contribution to the relationship. These contributions can include money, assets, real estate, and family homes. The agreement also outlines the terms and conditions of separation or divorce and how the finances will be distributed in such unfortunate events.

Let’s move on to the reasons why you should get a prenuptial agreement.

What Are The Benefits to Get a Prenuptial Agreement?

There are several reasons why you should get a prenuptial agreement. Some significant reasons are listed below.

Asset Protection
Mental Peace
Tax Benefits
Avoiding court proceedings
Privacy

Let’s have a look at them one by one.

1. Asset Protection

Prenuptial agreements play an essential role in protecting your assets. You can get yourself a prenuptial agreement either before your marriage or during your marriage.

Here are a few situations where your agreement will help you protect assets.

You own a business or partner in a business.
You have got a large inheritance or will get it in the future.
Your income is expected to increase substantially.
You have already faced a lengthy and complicated property settlement dispute with your previous partner.
If you are financially more substantial than your partner, a prenuptial agreement will protect your pre-existing assets, and your partner cannot claim that in case of separation or divorce. It is essential to do so to protect the assets that only belong to you.
Suppose you have children with your previous partner and want to ensure that they are provided for, regardless of what happened to your relationship. Making your prenuptial agreement with effective estate planning ensures the property descends to the next generation.
Prenuptial Agreements can plan for the future and specify how joint property should be obtained, financially maintained, and handled in the event of separation.

You will feel safe once you get a prenuptial agreement, as your property will be secure. Along with security, this agreement lessens your mental burden and gives you time to put your energy into other tasks.

Let’s look into the details of how these agreements give you mental peace.

2. Mental Peace

A prenuptial agreement is made with the mutual consent of both partners, so both parties agree upon the terms and conditions of the contract. These agreements strengthen, stabilise, and make a relationship. A prenup is considered fair and reasonable by all parties involved in it.

A prenup provides trust, comfort, and mental peace to both partners before any issue arises. In case a dispute arises, the court will not set aside the prenup just because one partner thinks it is unfair.

The family courts will disregard the agreement only when there are conduct such as:

Fraud
Intimidation
A court may intervene in a prenup if unconscionable conduct or material non-disclosure exists.
Additional situations are outlined in the law before a court thinks about getting involved in the agreement made.
If a party has separated prior to death, the prenup will still be enforceable against that party’s representative and will not be affected by that party’s death.

Do you know how prenup offers tax benefits? If not, then you must keep reading.

3. Tax Benefits

In Australia, prenuptial agreements grant parties the same substantial tax advantages as rulings from family courts. The parties benefit from rollover benefits for capital gains tax and stamp duty reductions in situations where these benefits would typically be applicable if court orders ultimately decided on a property settlement. If a party divides their property through a private or informal agreement, these tax benefits do not apply.

You can hire a professional family lawyer who can explain all the benefits in detail, specifically according to your assets. Moreover, a family lawyer will give you additional information about taxes applied to your assets and how to manage them skillfully to protect you. Aussie Legal Partners is offering a free consultation to discuss your case and look into its specifications and possible solutions.

You should also learn how a prenup can help avoid court proceedings.

4. Avoiding court proceedings

If you have a prenuptial agreement before a property settlement or divorce case, you will be more likely to settle things on time and cost-effectively. You can save yourself from extra expenses and emotional burdens associated with legal property settlement proceedings through Family Court. If we do a fair comparison, preparing a prenup is less costly than long-term legal fights.

Mostly, if both partners agree, it takes around two to three months for the preparation and legal execution of a prenuptial agreement. The duration of preparation of the agreement depends on the complexity of the parties’ finances and the nature of the negotiation. Despite the new Federal Circuit and Family Court Rules and Practice Guidelines, it takes years to conclude property settlement disputes, even after giving your best.

Hang on! You can’t miss how a prenup offers you privacy.

5. Privacy

A prenuptial agreement offers you privacy as it only requires you, your partner, and your lawyers to be involved in negotiating the terms and conditions. On the other hand, when your case is being heard in a family court, members of the public and even other litigants can observe the hearings. The Family Court also involves family, friends, and independent witnesses.

Key Takeaways

A (BFA) prenuptial agreement is not just a legal formality.
It’s an intelligent step towards a secure future.
It safeguards your assets, ensures your children’s inheritance, and gives you peace of mind.

Aussie Legal Partners recognizes the sensitivity and significance of these agreements. We can guide you through the process, ensuring that your agreement is tailored to your specific situation and can withstand any challenges. Our team of dedicated family lawyers will guide you through the complexity of family law with comfort and confidence.

Call Aussie Legal Partners, book your free consultation, and take the first step toward a safe and secure future.

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by Riyan Waris

Family Law, News & Blogs

What is My Wife Entitled to in a Divorce Australia?

Divorce is a period of turmoil in any couple’s life. Going through the divorce process is always challenging, even with the couple’s mutual consent. Divorce separates the couple from living under the same roof and in all aspects of life, such as property, assets, home, children, and everyday chores.

“For some reason, we see divorce as a signal of failure, even though each of us has a right, and an obligation, to rectify any other mistake we make.”

– Joyce Brothers –

The general view about divorce is that women get a considerable sum of everything. But is it true? In this blog, I will explain all the significant sums a wife is entitled to in Australia for a divorce. Let’s read it and learn about the facts tainted with the untrue perception of society.

What is My Wife Entitled to in A Divorce Australia?

The Australian government has not defined rules or percentages to determine what a wife is entitled to in a divorce. The court divides assets if the couple disagrees on mutual terms. This division is not uniform in all cases. Still, it depends on several factors, such as financial and non-financial contributions, the children’s well-being and each partner’s future needs.

There are several different ratios of how the assets are split between a husband and wife. The most common type of divorce splits include 60/40 or 70/30.

A 50/50 division is rare, mostly in couples agreeing on mutually decided terms. The Family Law Act 1975 states a four-step process that courts follow to reach a fair and just decision in split cases. So, the amount a wife is entitled to in Australia can vary depending on the case specifications.

A huge misconception among people is that the gender of a person will work in their favour in cases of split, but this is untrue. The precise answer to the question, “What is My Wife Entitled to in A Divorce Australia?” is determined after carefully evaluating several factors rather than making a gender-based decision.

Moreover, there is no automatic pre-assumption of a 50-50 split. The law does not favour one gender over the other. Instead, it focuses on the contributions and requirements of each partner involved. Here is the broken down of different entitlements that a wife entitled to in a divorce in Australia:

1. Property Settlement for A Wife in Divorce

Property settlement is a crucial part of a divorce as it requires keen attention and participation of both partners. The initial step of property settlement is determining the assets considered part of the marriage. All the assets, liabilities, real estate, and non-financial assets acquired during the marriage will be regarded as during property settlement regardless of the fact of whose name they are in. This includes cars, furniture, family homes, and investments.

The court will consider the following factors for the property settlement for a wife in divorce:

Each party made financial and non-financial contributions to the property’s purchase, preservation, and enhancement.
The impact of the proposed instructions on each party’s future requirements, taking into account factors like age, health, and earning potential.
Each party’s property, earnings, and financial resources.
The parental obligations of each involved party.
Anything else the court finds crucial.

2. Superannuation

According to the Family Law Act 1975, the division of superannuation is also essential in the split of a couple in Australia. Superannuation is considered a part of a marriage’s financial contribution, and dividing it during property settlement is necessary. It can be split between the couple, either by mutual agreement or by the court’s orders.

3. Spousal Maintenance

Along with the property settlement, a wife can get spousal maintenance if the court finds her eligible. Spousal Maintenance is the financial aid paid by one partner to the other to help them maintain their living standards after divorce. Before giving the orders of spousal maintenance, the court will consider factors such as property, income, financial resources, future needs, and earning capacity.

The contributions, financial and non-financial that each party made to the purchase, preservation, and enhancement of the property

Notably, the court’s orders are intended to be reasonable and equitable, not necessarily equal. This implies that the assets and property will only sometimes be divided 50/50 by the court, or it will only give the order of spousal maintenance after considering the condition of the other partner. Instead, the court will weigh all pertinent information and issue just and appropriate decisions given the situation.

4. Child Custody for A Wife in Divorce

During a divorce, the primary concern of the court and parents is to protect the child’s best interest. The court will make decisions based on protecting children’s rights and prioritising their well-being. The court will consider a variety of factors when determining the best interests of the child, including:

Children’s relationship with each parent
Children’s relationships with other family members, such as siblings and grandparents
The child’s age, level of understanding, and maturity.
The child’s physical, intellectual, and emotional needs
Children want to know if they are mature enough to express themselves.
The ability of each parent to fulfil the child’s needs
The parenting capacity of each parent
The child’s cultural and religious beliefs.
The child’s interaction with the surroundings, including schools and extracurricular activities.
The court may also decide to award sole or joint custody of the children.
When a parent has sole custody, it indicates that they are primarily in charge of their children’s daily care and are the only ones who make significant choices regarding their upbringing.
Joint custody entails that both parents have equal responsibility for the children’s daily care and jointly decide on essential aspects of their upbringing.
The best interests of the kid come first for the court, and they will weigh their options carefully.

Conclusion

This blog must have given you a clear understanding of what a wife is entitled to in Australia for a divorce. But the question is, “Are you capable of handling all the legal matters yourself?” The correct answer to this question is “No”. It would help if you had a skilled divorce lawyer to share your legal burden and responsibilities. Divorce lawyers at Aussie Legal Partners will help you pull yourself out of this situation without damage.

Our lawyers will make a strong case with a comprehensive assessment of various factors to ensure a fair and equitable distribution of assets and responsibilities. Moreover, we will highlight all the unique circumstances you faced during your marriage or will face after your divorce. In this way, your rights will be protected, and justice will be served.

For a detailed discussion of the specifications of your case, contact us today and take advantage of the chance to have a free initial consultation with our top-notch lawyers.

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FAQs

What is a wife entitled to in a divorce settlement?

A wife is entitled to a fair and equitable share of the assets, real estate, and property accumulated during the marriage in a divorce settlement in Australia. It may consist of a share of the vehicles, savings, family home, investments, and any superannuation saved during the marriage.

What is the average split in a divorce settlement Australia?

Most asset split case proceedings result in a 55 to 65% division as it favours the economically weaker spouse, mostly the wife, before payment of legal fees. However, the result of your property settlement mostly depends upon your practical circumstances.

Can you refuse a divorce in Australia?

Sometimes, you get sceptical about the decision to divorce and deny the plan to deny it. To deny your divorce, you must file for it and the necessary court paperwork. Appear at the divorce hearing to describe why you want the application dismissed.

by Riyan Waris

Family Law, News & Blogs

Changes to Family Law Act 2024 – Australia Family Law Reforms

Attorney-General Mark Dreyfus announced two significant reforms to family law, which were passed in Parliament on October 19, 2023. The Family Law Act (1975) is also impacted by these two bills, “the Family Law Amendment Bill “and “Family Law (Information Sharing) Bill.” The aim to announce these reforms were to make the process of separation of families simple, safer, and in the children’s best interest.

Changes to Family Law Act 2024

The first impact of family law changes is removing the “presumption of equal shared parental responsibility”. The main focus of these amendments was to clarify that any agreement between parents will be based on the child’s best interest. Other changes in the Australian family law 2024 are:

Making a simple, child-focused list of those who are in the child’s “best interest.” These considerations will help the parents streamline the decision-making process.
Making terms and conditions for Independent Children’s Lawyers to meet with children directly and to know about their reviews.
Including a definition of a family member that includes Aboriginal and Torres Strait Islander concepts of family and kinship.
The simple procedure to comply with child-related orders has been introduced.
Creating new powers for the courts to prevent dangerous, unmeritorious litigation.
Enabling authorities to regulate family report writers properly to ensure children’s concerns are heard and resolved under the Hague Convention on the Civil Aspects of International Child Abduction.

Important: The changes in family law will be implemented in all matters related to parenting from 6 May 2024. These changes will apply to all existing and new applications other than the one in which the final hearing has already commenced.

Family Law Amendment (Information Sharing) Act 2023

The Family Law Amendment (Information Sharing) Act 2023 has established an improved strategy for sharing information regarding child abuse and family violence. It ignores the risk between information-sharing agencies and family courts. The main changes in the Family Law (Information Sharing) Act 2023:

Introduced two new orders for information sharing for the courts to swiftly get information from firearms agencies, police, and child protection about child abuse, family violence, and ignorance that could place children at risk.
Ensures the availability of orders at any point during proceedings so information is up-to-date and accurate throughout the case proceedings.
Draft legal exclusions to information sharing and make information sharing safeguards for family law agencies and courts to consider when using, sharing, and storing information.
Introduces a restriction on the matter regarding subpoenas without leave of the court to reduce duplication of information requests.

Outcomes of the Changes to Australian Family Law

The outcome of these changes to family law is quite clear. The outcomes are:

The courts will now have quick access to better information regarding all family law matters.
The changes to family law will make sure that the courts have access to a holistic picture of family safety risk to prioritise the safety of families’ children and, particularly, in circumstances where there is a risk of child abuse, neglect in care or family violence.
The Government has recognised the impact family violence and safety risks can have on children and families.

Final Thoughts

The decision to take your case to court is a difficult call to make, but if you have decided to have your matter solved by law enforcement, then it is important that you first understand the law completely. You must stay up to date with the amendments made in the laws to get the results that are in your best interest. If you are proceeding with a lawsuit in family court, you must learn about the Family Law Reforms 2024.

The Australian Government has made family law simple, easy to implement, and secure for its citizens. The best way to understand these laws and get them implemented in your case is to contact a family lawyer. Aussie Legal Partners has a team of the best family lawyers in Parramatta, experts in all kinds of complex legal matters regarding parenting, child custody, parental agreements, and more.

What are you waiting for? Book your appointment to get a free 15-minute initial consultation!

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by Riyan Waris

Family Law, News & Blogs

What is Spousal Maintenance in Australia? | Eligibility Criteria

Marriages are not just an emotional bond but also an economic bond, so there are always financial settlements to make when a marriage breaks down. If one spouse in a relationship is financially weak and depends on the other to meet their basic needs, the stronger spouse is liable to pay spousal maintenance even after the separation or divorce.

“When marriage was an economic arrangement, infidelity threatened our economic security; today marriage is a romantic arrangement and infidelity threatens our emotional security.”

Esther Perel

We are living in a world where you need money to fulfil even your smallest need; therefore, financial security is the main concern of every person today. Marriage is one of the relationships that create financial dependencies in people. So laws like spousal maintenance are made to protect the financially weak and dependent spouse.

In this blog, I will cover all the points that you must know about spousal maintenance in Australia. Firstly, we will understand the concept of spousal maintenance. Moving on, the eligibility for spousal maintenance will be discussed, along with the amount that one party is liable to pay another.

Let’s dive into the details of the blog to broaden the spectrum of our knowledge.

What is Spousal Maintenance in Australia?

According to the FAMILY LAW ACT 1975 – SECT 74 “(1) In proceedings with respect to the maintenance of a party to a marriage, the court may make such order as it considers proper for the provision of maintenance in accordance with this Part.”

Spousal maintenance is a specific amount paid by one spouse to the other according to court orders to meet their daily needs.

This amount is decided depending on several factors, like income, assets, expenses, and the source of income of the paying party. A lot of people are unaware of the law that says they are entitled to or liable to pay spousal maintenance to their spouse in Australia after divorce or separation.

What is Spousal Maintenance in a De facto Relationship?

Spousal maintenance in a de facto relationship refers to the amount a de facto partner pays to the other after their separation.

This amount is mandatory to pay to help the weaker partner sustain their day-to-day lives. The court decides the amount that one de facto partner pays to the other only if the de facto relationship meets the specific criteria of the jurisdiction.

What is the Eligibility Criteria for Spousal Maintenance?

There is a high possibility that you mix spousal maintenance with property settlement. It is necessary to make it clear that spousal maintenance is different from property settlement after divorce. You will have no right to obtain spousal maintenance in Australia if you are unable to justify certain criteria. You will get the spousal maintenance only when you satisfy the eligibility criteria.

To make sure that you are the right person to get the spousal maintenance, the court will judge you on several grounds, including:

The maintenance and well-being of the children under the age of 18.
The age and health condition of both parties.
The capacity to maintain employment.
The property, income, and financial resources of each of the spouses.
The commitments of each of the spouses to financially support themselves and other persons.
The eligibility of the parties for an allowance, pension, or benefit;
A reasonable living standard in all circumstances.
Whether payment would increase with the earning capacity of the other person or not.
The rights of any creditors.
Any contribution to the earning capacity, income, property, and financial resources of the other partner.
The duration and impact of the marriage.
The nature of living under one roof with any other person.
The terms of any property settlement after separation or divorce.
The child support that is being paid or payable.
The terms and conditions of any binding financial agreement (BFA).
Any fact or circumstance that should be taken into account, in the opinion of the court.

What is the Amount of Spousal Maintenance?

The amount of spousal maintenance in Australia is not fixed. It varies from case to case, depending on both parties. Spousal maintenance is calculated while keeping in view the capacity of a partner to pay and the eligibility of the other partner to be entitled to spousal maintenance.

Let’s look into the details of how spousal maintenance is calculated in Australia.

How Spousal Maintenance is Calculated?

There are multiple factors to consider when calculating spousal maintenance in Australia. A lot of people are misled by the online spousal support calculators, but keep in mind that none of them is reliable. Following are the factors that you can consider while calculating the spousal maintenance.

Calculate your taxable income.
Figure out your child support payable, if you have any.
Get help from your accountant to confirm your income tax.
Calculate your reasonable expenses.
Prepare a draft of your expenses over the next 6 to 12 months and make a budget.
Make a budget for the other party as well.

Once you have all this information, consult with an experienced family lawyer. Aussie Legal Partners have a team of professional lawyers who are experts in dealing with cases of spousal maintenance and matters related to family law. The experienced lawyers will guide you on whether you are liable to pay the spousal maintenance and, if so, how much you should pay.

Closing Insights

Spousal maintenance is a matter that needs to be dealt with with keen interest and care, whether you are on the paying side or the receiving side. The paying party must ensure that the other partner is truly eligible for the maintenance, as it will be deducted from their hard-earned money. On the other hand, the person receiving spousal maintenance ensures that they are receiving the particular amount to smoothly maintain a balanced life.

I have covered the main factors involved in most of the cases of spousal maintenance. You must have read them all by now. To get the results according to your wishes, you must follow the guidelines provided to you in this blog. If you are having trouble complying with the conditions, you must seek help from a family lawyer.

Aussie Legal Partners has the most skilled family lawyers in Parramatta Sydney, to handle your cases in family court. Our family lawyers will represent you in the family court and ensure that you get results that align with your interests. Moreover, you can discuss your case with our expert family lawyers, as we offer free initial consultations to our valuable clients. So don’t hesitate and book your consultation now.

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FAQs

How do I apply for spousal maintenance?

To initiate the process of spousal maintenance in Australia, you have to submit an application to the Federal Circuit Court or Family Court along with details of your financial statements, income, assets, expenses, and liabilities.

Is spousal maintenance taxable in Australia?

Spousal maintenance is often taxed in Australia. The receiving spouse must include it as assessable income, while the sending spouse may claim a tax deduction for the payments.

Do I need to go to court to get spousal maintenance?

It is not always mandatory to go to court to solve matters of spousal maintenance. Couples are encouraged to sort things out with mutual understanding and sign a mutual agreement, but if they fail to do so, it is important to head to court.

by Riyan Waris