Family Law

Property Settlement

In Australia, property settlement in family law refers to the process of dividing assets and liabilities when a relationship breaks down, whether it's a marriage or a de facto relationship (including same-sex couples). The goal is to achieve a fair and equitable division of property between the parties involved.

Here's an overview of how property settlement typically works in Australia:

Eligibility: To be eligible for property settlement, the parties must be either married or in a de facto relationship that has broken down irretrievably. For de facto couples, certain criteria must be met, including the duration of the relationship and whether there are children involved.

Identifying Assets and Liabilities: The first step in property settlement is identifying all assets, liabilities, and financial resources of both parties. This includes real estate, bank accounts, investments, superannuation (pension), vehicles, businesses, inheritances, and any debts.

Contributions: The contributions of each party to the relationship are considered, including financial contributions (such as income and assets brought into the relationship) and non-financial contributions (such as homemaking and caring for children).

Future Needs: The court also considers the future needs of each party, including their age, health, income-earning capacity, financial resources, and responsibilities to care for children.

Just and Equitable Division: The court aims to achieve a just and equitable division of property based on the circumstances of each case. This does not necessarily mean a 50/50 split; rather, it depends on various factors, including those mentioned above.

Negotiation and Mediation: In many cases, parties try to reach an agreement on property settlement through negotiation or mediation with the assistance of lawyers or mediators. This can be a less costly and time-consuming alternative to litigation.

Court Intervention: If parties cannot reach an agreement, they may apply to the Family Court or the Federal Circuit Court of Australia for a property settlement order. The court will consider the evidence presented by both parties and make a decision based on the applicable laws and principles.

It's important to note that property settlement laws and procedures can vary depending on individual circumstances and jurisdictional factors. Therefore, seeking advice from a family lawyer experienced in Australian family law is advisable to understand your rights and obligations in a property settlement matter.

Parenting Arrangements

In Australia, the best interests of the child are the paramount consideration when making decisions about parenting arrangements following the breakdown of a relationship. The Family Law Act 1975 (Cth) governs these matters and provides a framework for determining what will best serve the child’s emotional, physical, and educational needs. Here’s an outline of how these principles are applied:

Best Interests of the Child

The concept of the best interests of the child encompasses a range of factors intended to protect the child's overall welfare. The primary considerations include:

The benefit to the child of having a meaningful relationship with both parents.
The need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect, or family violence.

Additional Considerations

In addition to the primary considerations, the court also looks at several other factors when determining what is in the best interests of the child:

The child’s views and opinions, considering the child's age and maturity.
The nature of the relationship between the child and each parent, and other significant persons (e.g., grandparents).
The extent to which each parent has (or has not) participated in making decisions about major long-term issues affecting the child.
The extent to which each parent has spent time with and communicated with the child.
The likely effect on the child from any changes in circumstances, including the likely effect of any separation from a parent or other person with whom the child has been living.
The practical difficulty and expense of a child spending time with and communicating with a parent, and whether that difficulty will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis.
The capacity of each parent, and any other person, to provide for the needs of the child, including emotional and intellectual needs.
The maturity, sex, lifestyle, and background of the child and the parents, and any other characteristics of the child that the court thinks are relevant.
If the child is of Aboriginal or Torres Strait Islander descent, the child’s right to enjoy his or her culture.
Any family violence involving the child or a member of the child’s family.
Any family violence order that applies to the child or a member of the child’s family.

Parenting Orders

If parents are unable to agree on the parenting arrangements, either can apply to the court for a parenting order. The court can make decisions on:

Whom the child will live with.
The time the child will spend with each parent and with other significant individuals.
The allocation of parental responsibility.
How the child will communicate with a parent they are not living with, or other significant individuals.
Any aspect of the care, welfare, or development of the child.

Dispute Resolution

Before applying for a parenting order, parties are generally required to attempt family dispute resolution (mediation). This helps to resolve conflicts and arrive at an agreement that is in the best interests of the child without resorting to court proceedings.

Enforcement and Compliance

Once a parenting order is in place, all parties involved must comply with the terms. Non-compliance can lead to enforcement actions through the court.

In any legal matters involving children, particularly where it involves the complexities of family law, it is highly advisable to seek legal counsel to navigate the legal system and advocate for the best interests of the child effectively.

Domestic Violence

Domestic and family violence in Queensland is treated very seriously. The state’s legal framework is designed to offer protection and support to victims while holding perpetrators accountable for their actions. Domestic and family violence can encompass a range of behaviors beyond physical violence, including emotional, psychological, financial, sexual, or social abuse. The legislation aims to protect those in intimate personal, family, or informal care relationships.

Legal Framework

The primary piece of legislation governing domestic and family violence in Queensland is the Domestic and Family Violence Protection Act 2012. This Act provides the legal basis for protection orders (also known as domestic violence orders or DVOs) and sets out principles to guide their application.

Key Aspects of the Act:

Protection Orders: The Act allows victims of domestic violence to apply for a protection order, which aims to prevent further violence and provide safety for the victim and their family. These orders can set conditions on the perpetrator, such as prohibiting them from approaching or contacting the victim, and/or coming near their home or workplace.
Police Powers: Queensland police have significant powers to protect individuals from domestic violence. They can issue police protection notices on the spot, which act as temporary protection orders until the court can hear the matter.
Court Processes: The courts have the authority to issue or modify protection orders and can impose penalties for breaches. These matters are usually handled by the Magistrates Court.

Supporting Services

Queensland has various support services and resources for victims of domestic and family violence:

DVConnect: Queensland’s state-wide telephone service offering crisis counseling and support for those affected by domestic and family violence. They provide both women’s and men’s services.
- Women's Line: 1800 811 811
- Men's Line: 1800 600 636
Family and Child Connect: A community-based service that helps families connect with the right supports they need to safely care for their children and improve family wellbeing.
1800RESPECT: A national sexual assault, domestic and family violence counseling service available 24/7 for any Australian seeking support.

Initiatives and Reforms

Queensland continues to implement reforms and initiatives aimed at enhancing the response to domestic and family violence, such as:

Not Now, Not Ever Report: Outlined ways to address domestic and family violence, which led to significant legislative and cultural reforms.
Specialist Domestic and Family Violence Courts: Established in some locations (such as Southport), these courts are designed to handle these cases with a more integrated and informed approach.
Enhanced Training for Police and Judicial Officers: Ensuring that those at the frontline in managing domestic and family violence are equipped with the necessary knowledge and skills.

Education and Awareness

Efforts are ongoing to raise awareness and educate the public about the dynamics of domestic and family violence and the support available. Campaigns, community engagement, and educational programs aim to change attitudes and behaviors to prevent violence from occurring in the first place.

Victims of domestic and family violence in Queensland are encouraged to seek help and utilize the resources available to them. The legal system, while providing mechanisms for protection and redress, works best when supplemented with community support and proactive prevention strategies.