Frequently Asked Questions

• Note the date of your separation.
• If appropriate, attempt to reach an agreement on some, if not all, property and/or parenting matters with your partner. If you are concerned about your safety or are in a relationship with allegations of domestic violence, financial abuse, or coercive control, please call our office and make an appointment to speak with one of our lawyers.
• Inform Centrelink and Medicare of your separation.
• Update your superannuation beneficiaries and your Will.
• In the event you and your partner own property together, obtain three market valuations for your property.
• Either prepare your property for sale, if it is to be sold, or obtain advice on your ability to refinance, if you will be purchasing your partner’s share of the property.
• Continue paying expenses such as utility bills, mortgage repayments and financial support for any children of the relationship as usual.

Children are usually unsure of what is happening when their parents separate. Parents may be unsure themselves and find it hard to answer their children’s questions. It is best if you can explain to your separation to your child in clear, simple, and honest language your child can understand, for example, “We both love you and we’re going to take care of you. We’ve decided that it works best for our family if Dad and I live apart”. If your child asks you a hard question that you don’t know the answer to, you could respond by saying “I don’t know right now, your Dad and I are still working that out. But I do know that you’ll get to spend time with each of us”. It is important that you keep an open dialogue with your child and be willing to discuss your child’s feelings with them.

At our initial appointment with you, we will take down some personal details and ask you to provide us with a background of your relationship commencing from cohabitation. For financial matters, we will ask you to detail the matrimonial assets and liabilities (i.e., for both you and your partner). For both financial and parenting matters, we will also ask you to outline your contributions to the relationship, as explained below.

Financial Matters

Pursuant to section 79 (if married) and section 90SM (if de facto) of the Family Law Act 1975 (Cth), in considering what orders (if any) should be made in property settlement proceedings in terms of the proposed division of the matrimonial asset pool between the parties, the Court will consider the following factors:

1. The financial contribution made directly or indirectly by, or on behalf of, a party to the relationship or a child of the relationship, to the acquisition, conservation, or improvement of any of the property of the parties to the relationship, or either of them.
2. The contribution (other than a financial contribution) made directly or indirectly by, or on behalf of, a party to the relationship or a child of the relationship, to the acquisition, conservation, or improvement of any of the property of the parties to the relationship, or either of them.

• The contribution made by a party to the relationship to the welfare of the family constituted by the parties to the relationship and any children of the relationship, including any contribution made in the capacity of homemaker or parent;
• The effect of any proposed order upon the earning capacity of either party to the relationship;
• The matters referred to in subsection 75(2) so far as they are relevant (see below);
• Any other order made under the Act affecting a party to the relationship or a child of the relationship; and
• Any child support under the Child Support (Assessment) Act 1989 that a party to the relationship has provided, is to provide, or might be liable to provide in the future, for a child of the relationship.

Section 75(2) of the Family Law Act 1975 (Cth)

The following matters will be taken into consideration by the Court under section 75(2) of the Family Law Act 1975 (Cth) in property settlement proceedings as a ‘future needs’ adjustment to the proposed division of the matrimonial asset pool between the parties:

1. The age and state of health of each of the parties;
2. The income, property, and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment.
3. Whether either party has the care or control of a child of the marriage who is under the age of 18 years;
4. Commitments of each of the parties that are necessary to enable the party to support:
   1. Himself or herself; and
   1. A child or another person that the party has a duty to maintain;
5. The responsibilities of either party to support any other person;
6. The eligibility of either party for a pension, allowance, or benefit under:
   1. Any law of the Commonwealth, of a State or Territory or of another country; or
   1. Any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;

and the rate of any such pensions, allowance or benefit being paid to either party; and

• Where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable;
• The extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
• The effect of any proposed order on the ability of a creditor of a party to recover the creditors debt, so far as that effect is relevant;
• The extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property, and financial resources of the other party.
• The duration of the marriage and the extent to which it has affected the earning capacity of the party who maintenance is under consideration;
• The need to protect a party who wishes to continue that party’s role as parent;
• If either party is cohabitating with another person – the financial circumstances relating to the cohabitation;
• The terms of any order made or proposed to be made under section 79;
• The terms of any order made or proposed to be made under PART VIIIAB; and
• Any child support under the Child Support Assessment Act that a party to the marriage has provided, is to provide, or might be liable to provide in the future for a child of the marriage.

Parenting Matters

Pursuant to section 60CA of the Family Law Act 1975 (Cth), 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. For these purposes, our initial discussion with you is to determine what parenting arrangements would be in your child or children’s best interests. Section 60CC of the Family Law Act 1975 (Cth) outlines the following factors to be considered:

1. The benefit to the child of having a meaningful relationship with both of the child’s parents;
2. The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence.
3. Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
4. That nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child);
5. The extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child and to communicate with the child;
6. The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parents obligations to maintain the child;
7. The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
8. The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
9. The capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs;
10. The maturity, sex, lifestyle, and background (including lifestyle, culture, and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant.
11. If the child is an aboriginal or Torres Strait Islander child, the child’s right to enjoy his or her aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture) and the likely impact any proposed parenting order will have on that right;
12. The attitude to the child, and to the responsibilities or parenthood, demonstrated by each of the child’s parents;
13. Any family violence involving the child or a member of the child’s family;
14. If a family violence order applies or has applied to the child or a member of the child’s family;
15. Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; and
16. Any other fact or circumstance that the Court thinks is relevant.

Our Advice to You

In providing our advice to you, whether on the proposed division of the matrimonial asset pool or on parenting matters, we are required to take into account what the Court would consider to be fair and equitable, specific to your individual circumstances and based on the relevant provisions of the Family Law Act 1975 (Cth) as outlined above.

After our initial appointment with you, we will send you a letter of advice confirming the advice provided to you, in addition to requesting your financial disclosure documentation.

Rule 6.01 of the Family Law Rules – Duty of disclosure requires all parties to a family law dispute to provide to each other party all information relevant to an issue in a case. This duty starts with the pre-action procedures before the case starts and continues until the case is finalised. As a party, you must continue to provide such information as circumstances change or more documents are created or come into your possession, power, or control.

Rule 6.06 of the Family Law Rules outlines the specific rules about full and frank disclosure in financial cases. Disclosure must be of the party’s total direct and indirect financial circumstances. It requires disclosing all sources of earnings, interest, income, property (vested or contingent interests) and other financial resources. This applies whether the property, financial resources and earnings are owned by or come to the party directly or go to some other person or beneficiary (for example, the party’s child or de facto partner) or are held in corporations, trusts, companies, or other such structures. Also required to be disclosed is information about any property disposal (whether by sale, transfer, assignment, or gift) that was made in the year immediately before the separation of the parties or since the final separation and that may affect, defeat, or deplete a claim.

In the context of financial disclosure, we will use your financial documentation provided to us to prepare a balance sheet outlining the matrimonial assets and liabilities to be divided between the parties.

Rule 6.05 of the Family Law Rules requires parties to make full and frank disclosure of all information relevant to a parenting case, at all stages in a case. The relevant information and documents will be case specific. For example, they may include medical reports about a child or parent, school reports, letters and drawings by the child, photographs, or a diary.

The penalties for not complying with the Court’s disclosure requirements can be severe. Additionally, from a cost and time perspective, it is in both parties’ best interests to be upfront and transparent with disclosure in order to keep legal costs down and have your matter finalised in a timely manner.

A balance sheet is used to list all assets and liabilities held by the parties, either solely or jointly, in order to determine the matrimonial asset pool to be divided. The balance sheet also includes add backs, financial resources, and superannuation. To assist us in preparing an initial draft balance sheet, we will ask you to itemise, describe, and provide your estimated value for each of your assets and liabilities. These values will then be confirmed through the process of disclosure and if necessary, in the case of property or companies, independent valuations. Following finalisation of the balance sheet, both parties will begin to prepare their respective Offers of Settlement for the other party to consider.

An Offer of Settlement is a document outlining the parties’ matrimonial asset pool along with a proposed financial Offer to the other party to settle the matter. An Offer of Settlement also outlines each party’s respective contributions to the relationship in accordance with section 79 (if married) and section 90SM (if de facto) of the Family Law Act 1975 (Cth), in addition to the ‘future needs’ factors to be considered under section 75(2) of the Family Law Act 1975 (Cth). A party is provided 14 days to respond to an Offer of Settlement by either accepting the Offer or providing the other side with a counter-offer. In the event the parties cannot agree on a negotiated settlement through the Offer of Settlement process, the next step is for the parties to attend Family Dispute Resolution, most typically, mediation.

Family Dispute Resolution is a form of mediation facilitated by an independent and registered Family Dispute Resolution Practitioner. Family Dispute Resolution is a practical way for separating families to try and resolve any disagreements and make arrangements for the future without going to Court. If you reach an agreement with the assistance of a Family Dispute Resolution Practitioner, we will finalise your agreement either by way of Consent Orders or a Binding Financial Agreement, where relevant. If you are unable to reach an agreement, the Family Dispute Resolution Practitioner will issue you with a certificate known as a section 60I certificate which can be used to initiate Court proceedings.

We believe that everyone has the right to sound and cost effective Legal advice. Being mindful and aware of costs is as important as the final settlement reached between the parties.

At Scarf Family Law we offer fixed fees, flexible fee arrangements and have a access to Litigation Lending to assist with the legal bills and general living expenses. We discuss all of your options at the initial appointment and throughout your matter.