Expert assistance with family legal issues in Brisbane

At Nita Stratton-Funk & Associates Solicitors, we really listen. At both our Rochedale and Brisbane offices, you will find a legal service that is home to some of the finest and most experienced law professionals.

Our legal practitioners have wide ranging experience with many aspects of family law. Our highly trained team will carefully listen to your family legal issues and advise on your legal requirements. Contact us to arrange an appointment.

FAQs

 

1.   Adult Child Support - Can I get any financial assistance for my daughter who is over 18, but still studying at Uni?

      Although child support usually stops at 18 or when a child finishes secondary education, the law provides for a possible application to be made if the maintenance is necessary to enable the child to complete his or her education or because of a mental or physical disability of the child.

2.  My husband and I don’t want to involve the Child Support Agency in our agreement about child support.  Do we have to?

    Many couples like to make their own private arrangements in relation to child support and either have an informal and unwritten agreement or they may prefer to formalise the arrangement in a written agreement called a “Child Support Agreement”.  If it is properly prepared and signed, it is able to be enforced if a parent does not comply with it.  It can deal with not only periodic support, but also payment for other costs such as health insurance, school fees and extra-curricular activities of the children. 

3.  What can I do if the other parent absconds with our child and cannot be located?

    A Court can issue an order for recovery of the child and invoke the assistance of the Australian Federal Police.  In some cases an order can be made for publication of the details of the abduction in newspapers or the media. 

4.  Will our children get a say in the outcome of our parenting case?

    It is rare in Australia for judges to speak directly to children, as is more common in some other countries.  Many children say they are unhappy with the way their views are currently dealt with and want to have more of a say in a decision that is being made which is going to affect their lives.  In our Family Law system this is usually done by the interview of the child by a court appointed expert, usually a psychologist or social worker, who will provide a report in relation to a variety of matters, including the child’s wishes if they are mature enough to express them. 

5.    Are Pre-nups worth doing?

In 2001 the Family Law Act was amended to allow parties to enter into Binding Financial  Agreements before marriage.  Provided these contracts are properly drafted in accordance with the requirements under the Act and in accordance with  contractual principles, they will be binding and have the effect of allowing parties to contract out of the Family Law Act and come to their own agreement about property settlement and spousal maintenance  in the event that the marriage  breaks down.

6.    How do you know what property settlement I am entitled to?

Property settlements must be just and equitable as between the parties and to achieve this, a four step approach is observed in the majority of cases:

(a)  Firstly the items making up the asset pool  for division must be identified and if necessary formally valued;

(b)   Secondly, an assessment is made in percentage terms of the contribution by each party to the acquisition, conservation and improvement of the assets in that  pool.  Contributions include not only direct financial, but also non financial and contributions as homemaker or parent are given significant weight;

(c)   thirdly, certain needs factors (Section 75(2) factors) are considered to determine if there should be a weighting in favour of one of the parties by a further percentage adjustment having regard to those factors;

(d)   fourthly, a just and equitable division of the assets in the pool is required so as to e.g. avoid a situation where one party retains all superannuation assets and the other the more readily realisable assets.

7.      I've received my inheritance and it's in the pool, why won't hers be taken into account when her parents die?

Your spouse's future inheritance will be taken into account  if her parent has lost capacity to change his/her Will.  In that case, depending on the size of the inheritance there may be a weighting in your favour of the current available assets to take into account a future resource that will benefit your spouse.  A possible future inheritance will not  be taken into account where the testator has the capacity still to change his/her Will.  If your inheritance is added to the pool because it has been received, it will be considered as a direct financial contribution by you.

8.    We didn't live in the same house until 2 years ago, how can she claim the de facto relationship started 6 years earlier?

The definition of de facto relationship as set out in the legislation is much wider than simply sharing a common residence.   A de facto relationship could be seen to exist where parties live in separate residences but have a mutual commitment to a shared life and have established a degree of interdependence for financial support between them There may be reasons why they maintain separate residences and this may still be consistent with being in a de facto relationship.   It becomes a question of fact in each individual case.

9.    My kids are 3 and 18 months and I don't see why I shouldn't have equal time with them.

In parenting matters generally the legislation provides for the best interests of the children to be the paramount consideration.  Social Scientists have over many years of research found that it is detrimental to the emotional and psychological development of children under 3 years of age to be spending lengthy periods of time including overnight time away from their primary carer.  Consequences including separation anxiety and the manifestation of varying degrees of behavioural and emotional problems may result for the child.  Some serious consequences may manifest in adult life including the inability to form healthy relationships.  The gradual phasing in of overnight  time usually starts at around age 3.  Each case is different and equal time is not always necessarly going to be regarded as being in the best interests of the child after due regard is had to various considerations which must be  weighed up under the legislation. 

10.  Can I access the cash in my super splitting Order?

     Not unless you meet the usual conditions of release relating to age or are otherwise eligible to access your super.  The money transferred to your own fund will be treated the same  as your existing superannuation..

11.   I had my business for years before we met, why is she entitled to any of it?

      All assets and liabilities of each of the parties at the time of property settlement are generally in the pool available for divisioin after separation including business assets.  The court will weigh your contribution of the value of the business to the assets you had at the tme of your cohabitation as well as those of your partner and then asses what further contributions were made by  each of you when living together and afer you separated, to come to a final percentage division between you of the current assets. 

12.   I had a business, car and house whe we started living together 30 years ago and my partner had nothing.  Do I get any compensation for that?

     Family Law does not provide for compensation but rather looks at each partner's contribution, financial and non-financial to the relationship and assets accumulated.  The longer the marriage, the more likely that the other partner has also contributed in many ways and made contributions as well.

13.   My friends and family live in Western Australia and I want to go back to my family with the kids.  What are my options?

      If you chose the option to simply get on a plane with the kids and go back without your partner's consent, then a court is likely to order you and the children to return until it can consider the competing proposals for the future care of the children and the relationships which they will have with each of you.  The far better option in the absence of written consent from the other parent, is to apply to the court for a relocation order allowing you and the children to leave the place of their usual residence.

14.  My wife's wealthy and a beneficiary in her family's trust but says that won't be taken into account in our settlement.  Can that be right?

       Much will depend on the nature of the trust and your wife's entitlements but it will certainly be a matter that will be given proper consideration  in your property settlement and either treated as part of the property pool available for division or as a financial resource of your wife, possibly leading to an adjustment in your favour depending on the circumstances.