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Are Binding Financial Agreements Worth It?

Are Binding Financial Agreements Worth It?

Binding Financial Agreements (BFAs), which are often referred to as prenuptial agreements in other countries, are legal contracts between couples which describe the management and distribution of financial assets during a relationship and after a relationship breakdown. These agreements can be entered into before a marriage/de facto relationship, during a marriage/de facto relationship, or even after a divorce/breakdown of a de facto relationship.

The importance of financial planning in relationships cannot be overstated. As couples plan their lives together, understanding and agreeing upon financial matters can lay a strong foundation for a secure future. 

BFAs can help both parties develop a clear understanding of what happens with assets during their relationship, potentially reducing disputes and promoting transparency. In this article, we investigate whether BFAs suit your circumstances.

What Is a Binding Financial Agreement (BFA)?

A BFA is a legal contract in Australia that allows couples to make enforceable arrangements which describe how assets and financial resources are owned during a relationship, or how they are divided, should their marriage or de facto relationship break down.

The legal authority underpinning BFAs is created by the Family Law Act 1975 (Cth). This legislation allows couples to privately determine how their assets and financial resources will be allocated without court intervention. The objective is to allow parties to autonomously manage their financial affairs and provide certainty in the event of a separation.

To be legally binding, several conditions must be met:

  1. Written Agreement: The BFA must be in writing and signed by both parties.
  2. Independent Legal Advice: Each party must have received independent legal advice before signing the agreement. This advice must cover the effect of the agreement on their rights, the legal consequences of, and the advantages and disadvantages of entering into the agreement at the time the advice was provided.
  3. Disclosure: There must be full and frank financial disclosure between the parties before the agreement is signed.
  4. Voluntary: The entire process must be without pressure or duress.

A BFA in Australia remains legally binding indefinitely unless terminated by a mutual agreement between the parties or set aside by a Court under circumstances such as fraud, undue influence, or significant changes in either party’s circumstances (particularly around child welfare).

Benefits of BFAs

1. Security and Clarity in Financial Matters

BFAs provide a comprehensive and transparent framework for the management and division of financial assets and liabilities between partners. These agreements are meticulously detailed, specifying which assets are shared and which remain separate, how future earnings and debts will be treated, and the procedures for managing financial issues upon the dissolution of the relationship. This level of detail brings a clarity which is designed to protect each party’s financial interests.

BFA’s set out who owns an asset and who will be paying for the costs associated with it, preventing misunderstandings and disputes in the future. For instance, a BFA can outline the expectations for handling increases in asset value, inheritance gains, and investments made during the relationship. 

The security provided by a BFA extends beyond emotional reassurance—it offers a strategic advantage in financial planning. Couples can confidently plan their financial futures, knowing their personal assets and liabilities are protected regardless of the relationship’s outcome. This is especially advantageous in complex financial situations, where significant assets or businesses are involved, protecting them from potential family law claims.

2. Protection of Assets and Inheritance

One of the fundamental benefits of a BFA is its capacity to safeguard individual assets and inheritances. This protection is crucial for individuals entering a marriage with significant pre-marital assets or expecting future inheritances.

Furthermore, a BFA can include provisions that address the growth in value of these protected assets. For instance, if one partner owns a business prior to the marriage, the agreement can specify that any increase in the business’s value during the marriage remains that partner’s separate property. This aspect is particularly vital when substantial assets or family businesses are involved.

3. Reduction in Conflicts During Separation or Divorce

Financial disputes are frequently cited as one of the primary catalysts for prolonged and bitter divorce proceedings. By clearly defining the terms for asset division at the start of a relationship, BFAs play a crucial role in reducing potential conflicts and facilitating a more amicable and streamlined separation process. 

Because both parties have previously agreed upon how assets will be distributed, which assets will remain individual property, and how liabilities are handled, the BFA eliminates the expense associated with lengthy negotiations or Court battles that can arise when couples fail to reach an agreement on how to divide their assets on separation. It allows both individuals to approach the dissolution of their marriage with a clear understanding and agreement, about their respective assets.

Drawbacks and Considerations

1. Emotional Implications and Misconceptions

The concept of a BFA can be unsettling or offensive to some partners, introducing notions of mistrust, or lack of commitment.

It’s crucial to approach this conversation sensitively and ensure that both parties view the BFA as a tool to protect their respective assets, rather than a prelude to separation. BFAs are not required to be fair, so effective communication is crucial in understanding the practical benefits and protections that BFAs offer without casting a shadow over the relationship’s intentions.

 

2. Costs of Drafting and Legal Advice

One of the primary considerations when contemplating a BFA is the associated cost. Each party to a BFA is relinquishing significant rights, so drafting the document requires legal precision to ensure all terms are enforceable and tailored to both parties’ specific circumstances. Each party must engage their own independent family lawyer to provide advice on the agreement’s implications and validity. For a BFA to be binding and enforceable, the requirements of the Family Law Act must be complied with.

Costs should be viewed as an investment in your financial future to avoid potentially more significant costs associated with disputed property settlements after a relationship.

 

3. Conditions Under Which BFAs Might Be Challenged in Court

While BFAs are designed to be legally binding, certain conditions can render them vulnerable to challenges in Court. These agreements can be contested and potentially overturned if they were not properly drafted, if one party did not receive adequate legal advice, or if there was evidence of fraud, duress, or undue influence during their formation.

Additionally, a BFA might be set aside if there has been a significant change in circumstances—particularly those affecting the welfare of children—that were not anticipated at the time of the agreement’s execution. BFA’s are not scrutinized by the Court, unless they are challenged.

Talk To A Family Lawyer

Deciding whether a Binding Financial Agreement is suitable for you involves careful consideration of your personal financial circumstances, your relationship dynamics, and long-term objectives. At The Legal House, we understand that discussing financial agreements can be sensitive and unique, and we strive to approach these conversations with the utmost respect and professionalism.

We pride ourselves on our client-focused approach, differing from traditional legal practices by prioritising your needs and treating you with the empathy and respect you deserve. To help you navigate the complexities of BFAs, we offer a complimentary first consultation. This initial meeting allows you to experience our commitment to your welfare and legal success firsthand.

We invite you to take this opportunity to discuss your specific situation, explore your options regarding asset protection and financial agreements, and ensure that we are the right fit for your legal needs. If you’re located in Queensland, book your free consultation with us today and take the first step towards securing your financial future with confidence and peace of mind.

 

What Is The Difference Between A Parenting Plan And A Parenting Order?

What Is The Difference Between A Parenting Plan And A Parenting Order?

Separation can be a profoundly challenging time for parents, as they navigate their emotional turmoil and the complex legal landscape that comes with arranging the future care of their children.

At the heart of this legal landscape in Australia for parenting agreements are two primary frameworks: Parenting Plans and Parenting Orders. These frameworks serve as the cornerstones for establishing clear, workable arrangements that prioritise the child’s well-being and provide structure during a period of significant change.

While both aim to address the care and support of children post-separation, they differ significantly in terms of legal enforceability, and the processes involved in their creation. This article aims to dissect these differences, providing parents with a clearer understanding of each option’s implications and guiding them towards making informed decisions that best suit their family’s unique circumstances.

What are Parenting Orders?

In Queensland, as in the rest of Australia, parenting orders carry significant legal weight and are enforceable through the courts. Contravention of these orders can lead to serious legal repercussions.

Parenting orders are formal directives sanctioned by the Family Court under the Family Law Act 1975, setting out the care arrangements for children after their parents’ separation. These orders encompass various aspects crucial to the child’s upbringing and welfare:

  • Residency: Outlining with whom the child will predominantly reside.
  • Time Spent: Specifying the schedule for the child to spend time with each parent and other significant people.
  • Decision-Making: Determining how parents will make significant decisions about the child’s health, education, and overall welfare.

To obtain a Parenting order in Queensland, you must navigate through the Family Court system. The procedure usually involves:

  1. Family Dispute Resolution: Engaging in mediation efforts to resolve the matter amicably outside of court, is a step required under the Family Law Act 1975 unless exemptions apply.
  2. Court Proceedings: If mediation fails or is deemed unsuitable, the matter escalates to a court hearing. Here, a judge assesses the case based on the child’s best interests before issuing a parenting order.
  3. Filing an Application: Initiating the process by submitting an application to the Court, detailing the proposed terms for the parenting order.

An experienced family lawyer can assist you through each step of the process to help you achieve the best outcome for you and your family.

What are Parenting Plans?

Parenting plans are voluntary agreements created by parents to outline the care and time arrangements for their children following separation. The primary purpose of a parenting plan is to establish a cooperative framework for parenting, detailing how each parent will contribute to the upbringing and welfare of their child without the formal intervention of the Court.

Parenting Plans are not legally binding – they offer parents the flexibility to tailor arrangements to suit their family’s unique needs and circumstances. Unlike parenting orders, there are no specific legal consequences for not contravening the terms described in the plan.  It allows the parties to modify the plan more easily to best suit the needs of the child and the circumstances of the parents change over time.

Creating a Parenting Plan is a collaborative process where both parents negotiate and agree on various aspects of their child’s care and upbringing. Parents can draft a plan independently or seek guidance from a family lawyer to ensure all considerations are comprehensively covered.

A typical Parenting Plan includes:

  • Living Arrangements: Where the child will live and the time spent with each parent.
  • Health and Education: Decisions about the child’s healthcare, schooling, and extracurricular activities.
  • Communication: How parents will communicate with each other and with the child.
  • Dispute Resolution: Methods for resolving any future disagreements about the parenting plan.

Key Differences Between Parenting Orders and Parenting Plans

Legal Binding Nature

Parenting Orders issued by a court are legally binding in Queensland and must be strictly adhered to – there are serious legal consequences for contravening these Orders.

In contrast, parenting plans are informal agreements. They are not legally binding and rely on the cooperative spirit of both parents to fulfil the agreed terms. The informal nature of parenting plans means they can be modified at any time by mutual consent, without judicial intervention.

Consequences of Breach

Contravening Parenting Orders can lead to Court action, including fines, enforcement proceedings, or even changes to time arrangements with children. Contraventions are viewed seriously and can significantly impact the parental obligations and responsibilities of the offending party.

On the other hand, while contravening a parenting plan does not have direct legal consequences, it can influence later legal proceedings. Courts can consider past behaviour, including whether a party has contravened a Parenting Plan when making decisions about formalising future Parenting Orders.

Formality, Flexibility and Timeframe

Parenting Orders are formal and need to be set out a certain way before a Court will consider issuing them. This process can be time-consuming, often involving mediation, Court hearings, and considerable documentation. The formality of Parenting Orders provides a clear, structured framework for parenting post-separation but with less flexibility to adapt to changing circumstances without returning to Court.

Conversely, Parenting Plans are highly flexible and can be created and revised without formal processes, making them quicker to implement and easier to adapt over time. This flexibility can be beneficial for parents who maintain a cooperative relationship and can mutually agree on the best interests of their child.

Deciding What’s Best For Your Family

Choosing the right post-separation parenting arrangement—be it a Parenting Plan or a Parenting Order—depends on your family’s specific needs and circumstances.

If you and your ex-partner communicate effectively and can agree on terms amicably, a Parenting Plan might suffice, offering flexibility to adapt to future changes. In contrast, if there are conflict or trust issues, a legally binding Parenting Order could provide the necessary structure and enforceability.

Consulting with a family lawyer can provide clarity on both options and help align your choice with your child’s best interests.

Book a Free Consultation with a Family Lawyer

Deciding on the best path for your family requires thoughtful consideration of your specific circumstances, relationship dynamics, and the best interests of your children. At The Legal House, we pride ourselves on being different from traditional legal practices. Our approach is personal and client-focused, ensuring that you are treated with respect and empathy.

We offer a complimentary first consultation, allowing you to experience first-hand our dedication to your welfare and legal success. We invite you to take this opportunity to discuss your situation, explore your options, and confirm that we are the right fit for your legal needs. If you’re located in Queensland, book a free consultation with us and take the first step towards a resolution that prioritises your family’s well-being.

Divorce and Property Settlement: 50/50 Split?

Divorce and Property Settlement: 50/50 Split?

During a divorce, one of the most pressing concerns for many couples is the division of their assets. Popular misconception dictates that this process results in an equal split, with each party walking away with half of the shared property and finances.

However, the reality of how assets are divided during a divorce and property settlement is far from this simplistic view. The division of assets on separation is governed by the Family Law Act 1975, and it takes a more nuanced approach, aiming to achieve a distribution that is just and equitable based on the circumstances of each case. 

This article will explore the complexities behind the division of assets, explaining the inaccuracy of the myth of the “50/50 split” and shedding light on what individuals can expect during the settlement process.

Understanding the Family Law Act 1975

The “just and equitable” principle ensures that the distribution of assets considers each case’s unique circumstances, aiming for a “just and equitable” outcome rather than an automatic 50/50 split.

The concept of what is “just and equitable” is complex and involves several considerations. The court examines various factors, including but not limited to both parties’ financial and non-financial contributions to the relationship and the assets of the relationship, as well as the future needs of both individuals. This approach allows for a tailored division of assets that reflects the contributions made by each person and their post-divorce requirements, which may include caring for children, the ability to earn an income, and other relevant factors.

How Assets Are Divided

The division of assets in a Queensland divorce or separation involves a detailed and structured process.

 

Step 1: Identifying and Valuing the Asset Pool

The first crucial step in the asset division process is to identify and value all assets and debts belonging to both parties. This includes everything from property, cars, and investments to superannuation, business interests, and debts.

The goal is to compile a comprehensive list of these assets and liabilities, accurately valuing them to establish the total net asset pool available for division. This step may require professional valuations for certain assets like real estate, businesses, or unique personal property to ensure accuracy in the process.

Step 2: Assessing Contributions

Once the asset pool is established, the court then assesses the contributions made by each party towards the accumulation, conservation, or improvement of these assets. Contributions can be financial, such as income, savings, or inheritances, which are applied to accumulating, preserving, or improving assets.

Contributions also include non-financial contributions, like weeding, gardening, mowing, cleaning, or other maintenance of a house, parenting responsibilities, or efforts to improve a family-owned business. The aim is to recognise and quantify the value of these contributions in both monetary and non-monetary terms, ensuring that each party’s role in building marital assets is acknowledged.

Step 3: Considering Future Needs

The next step involves considering the future needs of both parties. This includes a wide range of factors, such as age, health, income-earning capacity, the need to care for children, and the overall financial resources of each party. This step is crucial for ensuring that the division of assets takes into account the potential for financial disparity between the parties post-divorce, aiming to mitigate undue financial hardship and promote financial independence.

 

Step 4: Arriving at a Just and Equitable Division

Combining the assessments from the previous steps, the court then decides what constitutes a just and equitable division of the marital assets. This decision is based on the entirety of the circumstances, including the contributions made by each party and their future needs. The outcome can vary significantly from one case to another, reflecting the unique dynamics and needs of each relationship.

Common Misconceptions

One of the most prevalent misconceptions about divorce settlements in Queensland, and indeed throughout Australia, is the belief that assets are always divided equally. As we’ve already explored, this is not the case.

Some other misconceptions include:

  • Assets Held in One Name Are Not Part of the Asset Pool: Many people mistakenly believe that if an asset is in one partner’s name, it will not be considered for division. However, all assets, regardless of whose name they are in, are considered part of the marital asset pool.
  • Superannuation Is Excluded from the Asset Division: Superannuation is often thought to be separate from other assets – that is not true, superannuation is property and can be split between parties, just like any other assets.
  • Contributions Are Only Financial: “If I paid for everything, then I should get everything” – wrong! Non-financial contributions, such as homemaking, child-rearing, and emotional support, are equally valued and considered.
  • Once Divorced, Assets Can’t Be Divided: This is not entirely true – you have 12 months from the date of the divorce to divide your assets.  If you do not, a Court will ask you to explain why their should be any division of assets at all.  They will allow that to occur, if you have  good explanation.
  • All Assets Are Split, Regardless of When They Were Acquired: Assets acquired before the relationship or after separation can be treated differently, depending on the circumstances.

Get Advice from a Family Lawyer

Navigating a divorce and the subsequent division of assets is a complex and emotionally taxing process. As we’ve explored, the division assets is not “one size fits all” but is instead tailored to the specific circumstances of each case to ensure a just and equitable outcome.

Given the intricacies of family law and the potential for significant variation in outcomes based on individual circumstances, understanding and navigating the division of assets can be challenging. This underscores the importance of getting legal advice from a professional who can provide personalised guidance tailored to your situation.

Consulting with a family lawyer is not just about legal representation; it’s about equipping yourself with the knowledge and understanding of your rights and obligations under the law. If you’re looking for a QLD-based divorce and family lawyer, contact The Legal House obligation-free to discuss how we can help.

Does Cheating Affect Divorce in Australia?

Does Cheating Affect Divorce in Australia?

Divorce isn’t something most people think of when they get married.  So, when something like adultery, or cheating occurs in a relationship, most people don’t know what steps to take, is there punishment, or how something like “cheating” affects your divorce and/or property settlement in Australia.

If you know your legal position, it will help you be prepared for all the possible outcomes. The below article will help you gain an understanding of the impact “cheating” has on a property settlement in Australia (if at all). You should always be careful to seek legal advice from a family lawyer for personalised guidance.

How Cheating May Affect Your Divorce in Australia

While cheating may have an emotional impact on a relationship and may lead to divorce, it normally has no legal impact in Australia. Generally, it doesn’t matter why you separated, just that you have and how your joint assets should be divided. There are rare occasions where it does matter, so you should always seek legal advice about your particular circumstances.

In Australia, we implement a ‘no-fault’ approach to divorce. Divorce can only be achieved after 12 months of separation. The actual ground for divorce is the irretrievable breakdown of marriage, which is established by evidence being produced that the parties to a relationship have been living apart and separately for a continuous period of 12 months immediately before filing the application for divorce.

Separation can take place whilst the parties are still living under the same roof.

Property Settlement and Cheating

Property settlement is a separate process from a divorce. It involves the division of assets, which include, but are not limited to houses, money in the bank, cars, shares, superannuation, and more. It is very rare for cheating to have a legal impact on a property settlement.

However, if one party of a relationship, is found to have purchased assets for the person they were having an affair with, and used joint assets to do so, it is possible for a Court to undo those transactions, and if that is not possible, then the Court will the other party of a relationship a larger portion of the assets which remain.

Again, you should always seek legal advice about the particular circumstances of your case.

Parenting Arrangements and Cheating

The best interests of the child are paramount when making parenting arrangements – e.g. who the child spends time with, who they live with, who makes decisions for them, and more. Fundamentally, a child is entitled to enjoy a meaningful relationship with both parents, but there are occasions where that is not suitable and you seek legal advice about your particular circumstances.

Generally, cheating has no legal impact on parenting arrangements. That is not to say it won’t – for example if you have an affair with a parent of your child’s best friend, it may have a significant and lasting impact on the child’s relationship with her friend, and because of that, the child’s relationship with you. It may be talked about at their school, it may embarrass your child and it may cause them not to want to spend time with you.

Where two parents cannot agree on parenting arrangements, the court may intervene with a parenting order. A family lawyer can help guide you through the implementation of parenting orders.

Get Legal Advice

Navigating the turbulent waters of divorce in Australia, especially in the context of cheating demands a nuanced understanding of the legal landscape. The Family Law Act 1975 anchors divorce proceedings in a ‘no-fault’ framework, largely rendering cheating legally irrelevant in the dissolution of marriage and the division of property.

However, while infidelity does not generally influence divorce settlements, its ramifications may ripple through related aspects such as property division and parenting arrangements under certain conditions as described above. It’s imperative for individuals to approach these sensitive matters with caution, prioritising the welfare of any children involved and seeking professional legal guidance.

If you’re currently separated and looking for a divorce lawyer in Queensland, chat with the team at The Legal House. We are here to support you during this process and help you achieve the best outcomes for you and your family. Book a free consultation today.

What If Parents Can’t Agree On The Parenting Plan?

What If Parents Can’t Agree On The Parenting Plan?

Separation and divorce are hard and stir up some very difficult emotions. These emotions can often get in the way of being able to communicate effectively, meaning even the simplest of discussions may turn into an argument, such as organising simple parenting arrangements for your children.

If you’ve hit a roadblock and can’t agree on parenting plans, then you should know the next steps and legal options. Keep in mind that every parenting arrangement is unique – it should your circumstances, and your next steps will impact your situation. It’s always best to speak to a family lawyer who works in parenting arrangement matters to help you make the right decisions. 

What Is a Parenting Plan? 

A parenting plan is document outlining the care arrangements for a child or children. It is not legally enforceable. There is no legal requirement for formatting, it does not need to be witnessed, but agreement which has been drafted into a parenting plan is likely to be considered in Court in the event of a dispute. Parenting plan arrangements may include:

  • Where the child lives and with whom.
  • Who the child spends time with and communicates with.
  • Details of the child’s schooling or childcare.
  • Details of medical issues or wishes.
  • Details of the child’s religion or cultural practices.
  • Financial support arrangements for the child.
  • Parental responsibilities of each parent or guardian.
  • How those with parental responsibilities will communicate with one another.

 

A parenting plan should be made with the best interest of the child in mind. When parents cannot agree on a parenting plan, it might be worthwhile thinking about taking the next step and applying for a parenting order with the Court.

What to Do If You Can’t Agree on a Parenting Plan

1. Come to an agreement between yourselves.

Before seeking court intervention for a dispute about any parenting plan, you should exhaust all possible avenues. If you can’t agree on a parenting plan, find a family lawyer who handles child arrangements, and discuss your options for your situation. All options include family dispute resolution (FDR), being mediation.  Talk to your support network about presenting new ideas to aid in an agreement. Once all these options have been exhausted, your lawyer may advise you to instigate legal proceedings. 

2. Try family dispute resolution.

Before applying for a parenting order from the Court, you’ll be required to undergo family dispute resolution, or FDR. Family dispute resolution services can be used to resolve parenting arrangement disputes and help parents come to a mutual agreement. These arrangements can then be formally written down and lodged with the court as a consent order to make it legally binding.

If family dispute resolution or mediation does not result in an agreed outcome for parenting, the FDR practitioner will supply you with a certificate which you must present to the Court to when applying for a parenting order. They also provide a certificate if one parent refuses to participate in family dispute resolution. 

3. Apply for a parenting order from the court.

A parenting order is an order made by the Federal Circuit or Family Court outlining the responsibilities of parents or guardians. It is a legally enforceable document, and if your matter is contested all the way to a trial, you may have little say over the outcome. The Court makes a parenting order based on what is in the best interest of the child, which will take into account:

  • The evidence you present to the Court.
  • Opinions from independent experts such as psychiatrists, and social workers/family report writers
  • Wishes of the child.
  • Financial responsibility for the child.
  • Your child’s well-being.
  • Parenting time.

It is best to seek professional legal advice if you’ll be attending Court for a parenting order to give you guidance on your matter. 

Frequently Asked Questions About Parenting Plans

Can a child decide which parent they live with in Australia?

A child may have a say on which parent they wish to live with in Australia, but there is no guarantee this will be the outcome. If a parenting plan is made between parents outside of the Court system, they may ask an appropriate qualified independent person to seek the child’s input on who they want to spend time with and when, or they may not. When parenting orders are issued by the Court, they will take the child’s wishes into account, but also must make a decision based on the best interest of the child’s health, and safety. 

Are parenting plans legally binding?

A parenting plan is not a legally enforceable agreement in Australia. However, the Courts may still take the document into consideration if the dispute gets that far. This is why many separated or divorced parents seek legal help when creating parenting plans to find legally binding and enforceable options.

What is the most common time arrangement in Australia? 

Joint time is the most common time arrangement with parents in Australia. Also known as shared care, joint time also normally involves both parents having equal or shared involvement in making major decisions regarding the child, including their education, religion, healthcare and more. However, there is no universal solution to the way time arrangements are drafted and parenting plan/Court orders should be created to suit the needs of the family and in the best interest of the child. 

 

How much does family dispute resolution cost?

Some family dispute resolution services may be free, but they tend to have a longer waitlist. The cost of family dispute resolution depends on the practitioner and your financial situation, so it is best to consult with your family lawyer, or contact various FDR services for costing information. 

When Can A Child Decide Which Parent To Live With?

When Can A Child Decide Which Parent To Live With?

The best interests of the child are the paramount consideration in any parenting arrangement situation. Children are entitled to enjoy a meaningful relationship with both parents, but occasionally this is not in their best interests, as it may be necessary to protect them from being subjected to, or exposed to physical or psychological harm. Let’s explore when a child can decide which parent to live with.

What The Court Considers

The law as it is described in the Family Law Act 1975 is gender-neutral, making no assumptions about who performs what parenting roles.

A presumption of ‘Equal Shared Parental Responsibility’ exists when parents separate, however, equal shared parental responsibility does not mean that the child/ren spends equal time with each parent.

Equal shared parental responsibility means that both parents share the responsibility for making decisions about major long-term issues, such as schooling, major health decisions, and religious observance. It does not mean that a child will automatically be spending “equal time” with each parent. A Court can decide that it is in the best interests of the child to remove parental responsibility from one or both parents because of ongoing conflict, incapacitation, or unsuitability of a parent.

A child’s age is a determining factor in deciding where the child will live – i.e. a breastfeeding baby would not generally be taken from her mother’s primary care. It is also the case that, the older a child gets, the more weight their voice carries. In making decisions about children’s opinions as to who they spend time with, a Court considers:

  • The child’s maturity
  • Their level of understanding of the situation
  • Whether their opinions are well-informed
  • Whether there is evidence the child has been unduly influenced

The Role of an Independent Children’s Lawyer

In some situations, the court will appoint an Independent Children’s Lawyer (ICL) to represent the children. The ICL will gather information from sources including teachers, doctors, psychologists, counsellors, police, and child welfare authorities before deciding whether to interview the child or not.

This appointment will often be made in cases where:

  • There are allegations of physical, sexual, or psychological child abuse
  • There is an ongoing conflict between the parents
  • The child is alienated from one or both parents
  • There are cultural or religious differences affecting the child
  • There is a proposal to separate siblings into different households or take a child overseas

The article was written by the team at The Legal House, which practices in the area of family law. It is intended to offer simple explanations to frequently asked questions about whether children’s voices are heard in family law proceedings. It is not legal advice and should not be relied upon as it does not answer questions specific to your situation.

Please make an appointment with one of our family law team, for an obligation-free consultation.

If you need assistance with divorce, child custody, or other family law matters in Queensland, our experienced team of lawyers for divorce and child custody is here to help. Contact us today for a free consultation.