Family Law
Our team of experienced family lawyers includes accredited family law mediator, Tony Nikolic. We are committed to guiding you through these trying times with compassion, expertise and care.
Our team appreciates that family law matters vary depending on individual circumstances, financial resources, and other dynamics. We ensure that we understand the unique details of your matter and tailor our approach to your circumstances in order to make informed decisions which protect and advance your best interests, whether financial or in the case of a parenting matter, in the best interests of your children.
- Separation and divorce
- Defacto relationships
- Financial and property disputes following the breakdown of a relationship
- Locating property and assets hidden in complex trust and corporate structures
- Parenting and children’s matters and disputes
- Child custody
- Child support agreements
- Spousal maintenance agreements
- Consent Orders & binding financial agreements
- Financial agreement (prenuptial agreement)
- Enforcement proceedings
- Family violence and AVOs.
- Tailoring our advice to your specific circumstances.
- Informing you about how the Australian Family Law Framework works and what you need to do given your situation.
- Advising you about the benefits of reaching an early agreement with your ex-partner.
- Advising you on what issues need to be addressed and what constitutes a fair outcome.
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Document the terms of any informal agreement you and your ex-partner have made so you can be protected in future.
If you have an agreement in writing signed by you and your ex-partner, this will not stop your ex-partner from making a further claim in future.
Frequently asked questions
The price of a family lawyer in NSW is based on experience and expertise and can be anywhere from $300 to $800 per hour, not including GST. Many family law clients worry about legal fees, and it is often a source of stress.
When you invest in a family lawyer, you are also investing in your family’s future. You deserve the best legal representation possible, and at AFL Solicitors, that’s exactly what you will get.
You can have confidence that we will assess your situation to understand your legal needs, so we can provide you with a detailed estimate of costs with no hidden fees. Furthermore, we will keep you apprised of all costs throughout your entire family law case.
No. Lawyers in New South Wales are prohibited from conducting No Win No Fee family law proceedings. We will assess your situation and provide you with a detailed estimate of costs with no hidden fees and payment options.
Generally, a de facto relationship is one where two people live together as a couple but are not legally married. The rights and obligations for de facto couples are similar to those of married couples, particularly when it comes to property settlements and child custody matters.
The main difference is that to establish a de facto relationship, specific criteria must be met, such as living together for a minimum of two years or having a child together. However, establishing a de facto relationship can be complex. For example, there are special circumstances where a de facto relationship may be established if the couple does not live together fulltime.
Speak to our family law specialist about your situation so you can get the right legal advice.
In order to get the best results, you must have the best family lawyer by your side. Here are some qualities to look for when choosing your legal representation. A good family lawyer is:
- Experienced in similar family law issues.
- A great empathetic listener.
- Someone that takes the time to understand your situation.
- Clearly explains the legal concepts and processes
We understand it’s difficult to make this assessment without more information, which is why we offer a free first consultation. During this consultation, you can meet with one of our family lawyers, ask any question, and get honest advice. Then, you can decide if working with us is right for you.
To make the most of your initial consultation at AFL Solicitors, come prepared with a list of questions and concerns, gather relevant documents (such as financial records, court orders, or agreements), and have a clear understanding of your goals and desired outcomes. This preparation will help your lawyer provide tailored advice and develop a comprehensive strategy for your case.
Anything that might be helpful in your divorce or child custody case, like relevant documents or correspondence from another solicitor, should be brought when we meet.
When making your appointment with us, ask what documents you should bring in order to streamline the process. We will give you some guidance before the appointment and a more detailed list of document requests after learning about your unique situation. If you are attending our office in person make sure to bring something to take notes – a pen and either paper or an electronic device will suffice.
For convenience we offer our clients video link or phone consultations.
Our family lawyers are experts in family law and can provide invaluable assistance with your divorce case by helping you understand your legal rights and obligations. We will guide you through the complex legal process, assisting with property and financial settlement, negotiating child custody and support arrangements, and representing you in court if necessary.
Our accredited family law specialist can help you navigate this difficult time more effectively and reach a fair outcome.
Family Law encompasses a wide range of legal issues involving family relationships and domestic matters, such as marriage and divorce, child custody and support, property division, spousal maintenance, adoption, paternity, guardianship, domestic violence, and prenuptial and postnuptial agreements. A family lawyer can provide guidance and representation for any of these matters. AFL Solicitors are the expert lawyers your family can depend on.
The duration of a family law case depends on the complexity of the issues, the level of cooperation between parties, and the chosen method of resolution (e.g., negotiation, mediation, or litigation). While some cases can be resolved in a matter of weeks or months, others may take a year or longer. Your family lawyer at AFL Solicitors can provide you with a more accurate estimate based on the specifics of your case.
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Child Custody Disputes – Parenting Orders
Following separation, arrangements for children aged under 18 years are determined by agreement between the parents. If there is a breakdown in the relationship and you both cannot reach an amicable agreement, child custody arrangements are made in accordance with the provisions of the Family Law Act 1975 (FLA).
A Parenting Order is an Order made under the FLA that deals with one or more of the following matters set out in section 64B(2):
- The person or persons with whom a child is to live
- The time a child is to spend with another person or other persons
- The allocation of parental responsibility for a child
- If 2 or more persons are to share parental responsibility for a child — the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility
- The communication a child is to have with another person or other persons
- Maintenance of a child.
When family needs or circumstances change there are factors to consider before an application is made to a court for a variation of the parenting order. Some of these are:
- a child to whom the order relates
- the parties to the proceedings in which the order is made
- The process to be used for resolving disputes about the terms or operation of the order
- Any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
Parenting orders can be made by the consent of both parents. These are called “Consent Orders”. When an agreement cannot be reached the Court can determine the agreement.
Parenting orders are important to have in place to reduce uncertainty and any potential conflict.
Once parenting orders are in place, both parties must comply with them or risk an action for contravention (breach). Any breach to the FLA is serious which provides penalties for contravention such as a fine, or a prison sentence, or both.
Status of children under the FLA
It does not matter whether a child is born within our outside of a marriage or de facto relationship or whether the parents were ever in a relationship with each other.All children have the same status under the FLA.
Principles and objectives of the FLA
The terminology of the FLA has changed over time in a manner that demonstrates a move away from children being treated almost as “objects” and further, towards a more child-focused approach. Rather than using the parent-focused terms of “custody” and “access”, the family law now uses child oriented terminology and refers to whom the child “lives with” and with whom the child will “spend time”. This terminology aligns with the objects of the legislation as far as it relates to children.
In deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration: section 60CA FLA.
As stipulated in section 60CC FLA, in determining the “best interests of the child”, the Court is to consider the need for a child to have a meaningful relationship with both parents and also the child’s need to be protected from harm.
Part VII of the FLA sets out the objectives for how the best interests of children are met.
They include:- Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interest of the child, and
- Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence, and
- Ensuring that children receive adequate and proper parenting to help them achieve their full potential, and
- Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
In some rare cases it may be determined that it is not in a child’s best interests to have contact with one of their parents and it may be ordered that the child spend little or even no time with that parent.
- Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together
- Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives)
- Parents jointly share duties and responsibilities concerning the care, welfare and development of their children
- Parents should agree about the future parenting of their children, and
- Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
What are parenting orders?
The FLA starts with the presumption that each of a child’s parents will jointly exercise parental responsibility for them: section 61C(1) FLA.
A parenting order may deal with one or more of the following:
- Who the child will live with
- How much time the child will spend with each parent and with other people, such as grandparents
- The allocation of parental responsibility
- If two or more persons are to share parental responsibility for a child – the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility
- How the child will communicate with a parent they do not live with, or other people
- The process to be used for resolving disputes about the terms or operation of the order, and
- Any other aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
Who can apply for parenting orders?
A parenting order may be applied for by:
- Either or both of the child’s parents
- The child
- A grandparent of a child, or
- Any other person concerned with the care, welfare and development of the child.
When can parenting orders be sought?
The Family Law require parties seeking parenting orders to participate in family dispute resolution (FDR) before commencing court proceedings.
There are circumstances in which FDR would not be appropriate. These matters include:
- Where there are reasonable grounds to believe there has been, or
- There is a risk of child abuse or family violence, or
- The matter is otherwise urgent according to section 60I(9)(b) FLA.
In the matters above, an application can be made to dispense with FDR.
In FDR, an independent FDR practitioner assists the parties to resolve parenting disputes, through mediation, conciliation or other means. Parties who participate in FDR obtain a section 60I certificate, which must be attached to their initiating application.
Information disclosed in FDR is admissible in court proceedings only in very limited circumstances.
What is a section 60I certificate?
Under the FLA it is a requirement that separating couples wanting to apply to the Court for a Parenting order need to first indicate that a genuine effort to resolve the dispute by FDR has been attempted.
To show that a genuine attempt has been made couples are required to obtain a certificate 60I. Only registered Family Dispute Resolution Practitioners can issue a Section 60I certificate.
There are five types of section 60I certificates that can be issued, these are:
- You did not attend because the other party refused or failed to attend
- You did not attend because the practitioner (mediator) considered that your circumstances were not appropriate for FDR
- You attended and the parties made a genuine effort to resolve the issues, or
- You did attend and the other party (or you) did not make a genuine effort to resolve issues.
You and the other party started the mediation process, but the practitioner considered that it would not be appropriate to continue.
The Court requires that a copy of the Section 60I certificate be filed with the Court Application.
AFL Solicitors is able to provide parties with the appropriate 60I certificate.
Apprehended violence orders (AVOs) and parenting orders
The Courts must be informed of any AVOs or allegations of family violence when applying for parenting orders. It is important to consider how an AVO may affect parenting orders if inconsistencies arise. For example, in circumstances where an AVO prevents the defendant from going to the protected person’s property and the parenting order states that the defendant must pick up the children from the protected person’s home. The FLA provides that where a parenting order is inconsistent with an existing AVO, the AVO may be deemed invalid.
It is important to note that there are differences between parenting orders and parenting plans in which parenting plans are not considered legally enforceable agreements and, therefore, if inconsistencies arise between a parenting plan and an AVO, the AVO will be given preference.
How can AFL Solicitors help me?
At AFL Solicitors we aim to assist you to address child custody and parenting disputes quickly, cost effectively and preferably out of court. This usually means that negotiation will be a first step, and if that fails either private or court appointed mediation. If all else fails, or if the matter is urgent then court action may be the most appropriate approach.
Examples of situations requiring urgent court action are:
- A child has been taken by one parent and the other parent does not know the whereabouts of the child
- A child is at risk of being taken out of the country without the permission of both parents
- The child is in the care of one parent and the other parent believes the child is at risk of serious harm
- One parent plans on relocating with the child to a location that is a significant distance away from the other parent
- One parent has suddenly stopped the other parent from spending any time with the child.
In these circumstances negotiation is not likely to resolve the matter satisfactorily and it is likely to be crucial that the matter is put before the court quickly to prevent it from getting out of hand. Our family law specialists are always mindful that timing can be of the essence in these circumstances and will ensure that urgent action is taken every time.
Conclusion
The family law encourages parents to try and settle parenting disputes between themselves, even once proceedings in court have commenced. A disputed parenting matter can take more than 2 years to be finalised by the Courts if the parents cannot reach an agreement at any time during proceedings. Our family lawyers are experienced in matters that involve protracted litigation and have assisted many clients in obtaining favourable results at the end of disputed hearings. Our real success lies in our ability to assist most clients to settle their disputes and thus reducing costs and the emotional strain of hard fought litigation.
Why do you need a lawyer?
If you are going through a separation or divorce, it is important to understand what steps you need to take under the FLA concerning child custody arrangements. We can assist you and guide you through this difficult time.
As seen above, there are many factors that the court will take into consideration when deciding child custody disputes. Divorce or separation is a challenging time, and navigating the family law system can make it even more complicated.
You do not have to navigate this journey alone. If you require assistance with a child custody dispute or obtaining parenting orders, our accredited family law specialists are ready to assist you.
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Property Division in Family Law Matters
Dividing Assets
Navigating division of property when a relationship comes to an end can be complicated and overwhelming. Knowing how to divide property and what steps you should take is crucial to ensure your property rights are protected.
The Family Law Court must determine a proper division of the asset pool by applying common legal principles.
Broadly, when the Court embarks upon the task of dividing property between the parties the Court will apply what is commonly known as the “Four Step Process”.
Four Step Process
The 4-step process of family law settlements is widely accepted as a framework for dividing property in a fair and reasonable way. The process provides a structured approach to resolving disputes and helps minimise conflict between you. It is also designed to make sure that the outcome is just and equitable, taking into account the unique circumstances of each of you.
Step 1: Identify and Value the Net Property Pool
Generally, all property (assets and liabilities) must be taken into account, whether acquired before or during the relationship or after separation.
Property includes assets of either or both the parties. This can include property that was owned when the relationship started and property acquired after the separation.
Below is a non-exhaustive list of what constitutes assets and liabilities:
- Real estate
- Shares
- Vehicles
- Jewellery
- Savings
- Furniture and effects
- Employment entitlements
- Superannuation
- Life policy surrender values
- Business interests, company or trust interests
- Compensation and damage awards
- Inheritances
- Lottery wins (see step 2)
- Notional property that needs to be added back
- Debts and mortgages
- Borrowing capacity
What the Court takes into account
The Court must determine the net value of the property pool.
The net value of the property pool is generally ascertained by subtracting the parties’ liabilities from the gross value of the parties’ assets.
Superannuation is treated differently. Depending on the type and value of fund, it may be divided between the parties at the time that a Property Order is made or an Order made for it to be split at a later date.
The Court must also consider the financial resources of the parties. These can be funds or assets over which a party has influence or control or in certain circumstances prospective entitlements.
Other matters taken into account
When determining the parties’ property pool, consideration must also be given to taxation liabilities including capital gains tax, stamp duties and other financial issues.
Step 2: Assessing each person’s contributions both Financial and Non-Financial
The second step is to assess the contributions that each of you has made to the relationship. This includes financial and non-financial contributions such as caring for children or maintaining the family home. The law considers contributions made before, during, and after your relationship per s 79(4) Family Law Act 1975.
Initial financial contributions brought into the relationship can be relevant, as are gifts and inheritances and other “out of the ordinary” moneys received.
The law considers:
- Direct or indirect financial contributions
- Non-financial contributions
- Contributions as a homemaker or parent
- Effect of orders on earning capacity
- Section 75(2) matters (see list at step 3)
- Any orders affecting a party or child
- Child support
- Windfalls such as lottery wins
- Special contributions
- Waste or negative contributions
- Effect of domestic violence
Step 3: Future Needs
The next step is to assess the future needs of each of you. This step ensures that the settlement is fair and reasonable, given both your circumstances. The Family Law sets out a range of factors per s 75(2) Family Law Act 1975 which can “soften” the effect of looking at a property settlement.
Your future needs are considered by assessing your capacity to support yourself in the future, both financially and non-financially.
The “s 75(2) factors”that the Court may take into account include:
- Age & health of each of you
- Income &property
- Earning capacity (physical and mental capacity of each of you for appropriate gainful employment)
- Financial resources
- Whether you are caring for children of the marriage who is under 18.
- Pension entitlements
- Any superannuation fund or scheme
- Whether the parties have separated or divorced
- A standard of living that is reasonable
- The extent to which payment of maintenance could enable further education and therefore increase one of the parties earning capacity
- The effect of any proposed order on the ability of a creditor of a party to recover a creditor’s debt
- Extent of contribution to the earning capacity of the other
- Duration of marriage & how that affected earning capacity
- The need to protect a party who wishes to continue their role as a parent.
- If cohabiting with another person, the financialcircumstances relating to that cohabitation
- Effect of the proposed orders
- Any child supportthat one of the parties is liable for
- Orders made under section 79 of the Family Law Act 1975 (This section regulates how assets are to be divided)
- The effect of any binding financial agreement on the parties to the marriage
- Any fact or circumstance which the court feels needs to be taken into account for reasons of justice.
Step 4: Practical Effect – Just and Equitable
The final step is to consider the practical effect of any proposed settlement, to achieve a result which is just and equitable in all the circumstances. This includes considering factors such as taxation and legal costs.
This step of the process will sometimes include a consideration of the appropriate blend of any settlement between immediately available assets, and deferred but important benefits such as superannuation.
It is important to consider the effect of section 79(2) Family Law Act 1975 that “the court shall not make an order … unless it issatisfied that, in all the circumstances, it is just andequitable to make the order.”
Financial Disclosure
Before parties can enter into a final property settlement, both parties have a clear obligation to make full and frank financial disclosure about their respective financial circumstances.
Each party has to provide to the other party all of their supporting financial documents.A failure to make proper disclosure of a relevant matter can have very serious consequences.
Depending on the parties respective financial positions these documents can include (but not limited) to proof of earning documents such as:
- Group Certificates
- Taxation Returns
- Business and Company records
- Personal and Credit Card Bank Statements
- Cryptocurrency investments
- Share Portfolio Valuations
- Superannuation Statements
Time limits
It the Parties are married then they have 12 months from the date of Divorce in which to apply to the Court for Property Orders or a Spousal Maintenance Order.
When a De-facto Relationship comes to an end an application for property adjustment or maintenance must be made within two years of separation.
It is important to be aware that a party must seek leave of the Court to make an application after this time.In exceptional circumstances the Court may grant leave for an application to be made outside of this time.
Why do you need a lawyer?
If you are going through a separation, it is important to understand what the four step process means for you. We can assist you and guide you through this Family Law Framework.
The “s 75(2) factors”are important for the court’s consideration and assessment of what each party’s future needs are likely to be.This requires the court to anticipate what each party’s life is likely to look like in the future and award a percentage uplift to the party with the greater ‘need’.
As seen above, there are many factors that the court will take into consideration when deciding who gets what portion of the assets. Divorce or separation is a challenging time, and property settlements can make it even more complicated.
Conclusion
The above information is only a brief examination of what needs to be considered by the Court in determining the division of property. Our family lawyers can assist you with a more detailed analysis of the legal principles involved and of course, provide you with advise that is specific to your circumstances.
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If you require assistance in obtaining Family Court Property Orders for the finalisation of your financial property settlement, or would like to discuss your family law matter with one of our expert family lawyers please contact AFL Solicitorson 02- 9892 2298 or via our contact form.
Family Violence in Family Law Matters and Apprehended Violence Order (AVO)
What is an apprehended violence order?
An Apprehended Violence Order (AVO) is an order made by a Local Court, for the protection of a person (known as the “Person In Need of Protection” (PINOP) or otherwise “the protected person”, from the behaviour or conduct of another (the “defendant”). AVO matters are dealt with in the Local Court and are not family law proceedings. Typically, it is lawyers with experience in criminal law that represent those defending AVOs in the Local Court. Therefore, any client that is represented by one of our Family law specialists in parenting matters that is also facing an AVO Application in the Local Court has the benefit of being able to rely on the specific expertise of our Criminal Lawyers. The main purpose of an AVO is to protect the PINOP from future harassment, intimidation, stalking or violence. All AVOs must contain conditions that the defendant cannot assault, molest, harass, threaten, stalk, or intimidate the protected person. Additional conditions can also be imposed on a case to case basis.How does domestic violence affect family law matters?
Domestic violence can often be a relevant factor in family law proceedings and its relevance is not always isolated to parenting matters or child custody disputes. Domestic violence allegations and AVOs often go hand in hand. It is important to understand what role domestic violence plays in family law proceedings and also, the meaning and effect of an AVO and how the existence of an AVO may or may not affect family law proceedings, particularly in relation to parenting matters or child custody disputes.
Notwithstanding that domestic violence allegations or AVOs in family law proceedings can play a role, despite popular opinion and practice, obtaining an AVO does not automatically mean the “upper hand” in proceedings. AVOs are there to protect individuals from probable harassment or violence and should not be used as a weapon in family law proceedings.
The Federal Circuit and Family Court of Australia provides that the significant proportion (80%) of family law proceedings involve allegations of family violence. The family law system has a central role in identifying and responding appropriately to allegations of family violence.
The Family Law Act 1975(FLA) introduced a legislative definition of family violence. Family violence is defined as:
“violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member) or causes the family member to be fearful.”
The FLA provides examples of behaviours constituting family violence including (but not limited to):
- An assault
- A sexual assault or other sexually abusive behaviour
- Stalking
- Repeated derogatory taunts
- Intentionally damaging or destroying property
- Intentionally causing death or injury to an animal
- Unreasonably denying the family member the financial autonomy that he or she would have otherwise had
- Unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support
- Preventing the family member from making or keeping connections with his or her family, friends or culture, or
- Unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
The Federal Circuit and Family Court of Australia is guided by the following principles in responding to allegations of family violence:
- Safety is a right and priority for everyone
- Family violence affects everyone in a family
- Family violence can occur before, during, and after separation. It has the potential to affect an individual’s ability to make choices about their family law matter, including to initiate legal proceedings, participate in court events and/or achieve settlement of their dispute through negotiation
- Family violence has immediate and longer-term impacts on children.
Case Study: Jardine & Sackville [2020] FamCA 346
Summary of Facts
In this case, the parents were in a de facto relationship for 8 years and there were two children in their relationship. The mother moved out with the children after having been seriously assaulted by the father.
There was an AVO in place to protect the mother and the children from the father for 2 years. The children had no contact with the father as a result of the AVO.
The father commenced legal proceedings seeking for the children to live with him originally, but subsequently amended his application seeking that the children to live with the mother, to spend time with him, and both parents to have equal shared parental responsibility.
Factors the Court considered and findings
The father had a history of family violence as well as criminal convictions against the mother, the formal spouse, relatives and other people.
The Court considered the history of family violence and the relevant evidence which was either conceded by the father or was indisputably established by independent records.
The judgment indicated that there was “overwhelming” evidence as to the father’s history of violence. It was found that the father did pose a material risk of harm to the children.
Judgement
The judge ruled that “there should be no enforced change to their current estrangement from the father” and found that even if supervision centre prevented the father physically harming the children, it could not prevent him psychologically harming the children. Therefore, the proposed supervision at a contact centre was not considered as an option.
Court Order
The Court ordered that the mother has sole parental responsibility, and the children continue to spend no time with the father and not to communicate with him. The Court also granted mother the liberty to make decision in relation to any contact between the children and the father after the AVO expires.
In addition, the Court noted that the children’s best interests remain the paramount consideration and their safety must always be prioritised over idealised family models.
Why do you need a lawyer?
There are unfortunately many legitimate cases where domestic violence is a real issue in a relationship and/or relevant to the breakdown of the relationship. Great care needs to be taken when dealing with matters where domestic violence becomes a factor in the proceedings, whether representing the party accused of violence or representing the party that has been the victim of domestic violence. Our family lawyers have experience representing both victims and those accused of violence in family law proceedings and we can certainly assist you.
AFL Solicitors have represented many clients in AVO matters and successfully defended false allegations on numerous occasions. We have also represented clients in circumstances where an ex-partner has tried to use an AVO against them as a weapon in family law proceedings.
If you are intending on separating and are experiencing current or historical family violence, we recommend reaching out to our experienced team of family lawyers to ensure that you are aware of the processes, safety mechanisms and probable outcomes, given the stressful and complex nature of these situations. AFL Solicitors can provide clarification of the relevant law and its relation to your individual circumstances.
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If you are affected by family violence or otherwise have concerns about family violence, it is important to know your options going forward by seeking expert legal advice.
Our family law team has expert legal knowledge combined with substantial experience in acting for clients in complex family law matters that involve domestic violence. Contact AFL Solicitors to discuss your particular situation on 02- 9892 2298 or via our contact form.