A Binding Financial Agreement is a form of contract under the Family Law Act. These contracts are a legal mechanism available to people in the following situations:

1. 1. before the marriage or de facto relationship commences (these types of agreements are often referred to as "pre-nuptials");
2. 2. during a marriage or de facto relationship that is still together (i.e. to re-arrange the property of you and your spouse or de facto partner even though you may not be separated or intending to separate);
3. 3. during a marriage or de facto relationship but after separation (ie, as a way of recording and formalising a final agreement as to property settlement and/or spouse maintenance between you and your spouse or de facto partner); and/or
4. 4. after separating and where a Divorce Order has been made for the end of the marriage (ie, these types of Agreements are also a way of recording and formalising a final agreement as to property settlement and/or spouse maintenance between former spouses only).

The legal point of a Binding Financial Agreement is that, if properly made, it replaces the legal ability of a court to deal with and make an order regarding the matters that are covered in the Binding Financial Agreement. For example, in a Binding Financial Agreement both people to a marriage or de facto relationship that has broken down can formally waive their legal ability to make a claim for maintenance from the other person in the future. This is a legal outcome with the highest form of certainty from future claims for maintenance into the future and the best way that this can be achieved is through a Binding Financial Agreement.

The rules regarding Binding Financial Agreements are technical and include a requirement for both people to have independent and separate legal advice in writing from a lawyer. In order for a Binding Financial Agreement to be legally effective then the requirements under the Family Law Act must be strictly followed. If the requirements are not followed then the Binding Financial Agreement could be seen as of no legal effect by a court meaning that the “door” for claims on the matters that the Agreement seeks to cover (such as property settlement and spouse maintenance) would be left "open".

It is a commonly held view that people are only in a de facto relationship after they have lived together in the same house for 2 years. These are important facts but they are not necessarily determinative of whether a de facto relationship exists and the legal requirements in the Family Law Act mean that it is possible to be in a de facto relationship even though you are not living in the same house and have been together for less than 2 years.

Whether you are in a de facto relationship or not will determine whether financial consequences such as property settlement and/or maintenance are applicable in the event your relationship breaks down. If you are not in a de facto relationship then you have no financial obligations following the breakdown of your relationship.

Two people will be in a de facto relationship if, having regard to all of their situation, they "…have a relationship as a couple living together on a genuine domestic basis…" and they are not married or related to each other. There is a non-exhaustive list of 9 factors in the Family Law Act that a court will look at in determining whether two people are in a de facto relationship. These factors include:

• the care and support of children;
• how long the relationship has been going on for;
• whether the people live in the one house;
• whether there is a sexual relationship between the two people;
• the degree of financial dependence or inter-dependence between the two people (i.e. is one of the people paying for expenses of the other person);
• the ownership and use of property (ie, do they own a house together?)
• the "degree of mutual commitment to a shared life";
• whether the relationship was registered under a State or Territory law; and
• the reputation and public aspects of the relationship (i.e. do you spend Christmas and birthdays together?)

You can be in a de facto relationship with more than one person at the one time. The Family Law Act is quite clear that you can be legally married to someone else and in a de facto relationship with another person (or persons). The gender of the people involved in the de facto relationship is irrelevant.

Yes.

Section 31(2) of the Family Law Act provides the Family Court with an extra-territorial jurisdiction both as regards “persons” and “things” in broad, general language. Australian court orders are made against the individual (spouse or partner) or third parties (such as companies) and, as such, are of worldwide application (ie, the Australian court can make an order dealing with ownership rights in assets outside of Australia).

The power to adjust property interests operates in personam, i.e. against the party personally and not in rem, i.e. against the property. Thus, there is no impediment to taking foreign property into account or making Orders that the parties transfer or sell that property.

Enforceability of an Australian Order in the foreign jurisdiction where the assets or income are located needs to be carefully considered with advice from a local lawyer. However, it is also important that the Australian requirements under the Service and Execution of Process Act 1992 are followed.

Generally yes but it depends on the specific country and form of order.

Assuming a foreign Order for an amount of money payable under a property settlement needs to be enforced in Australia certain countries are specified in the Foreign Judgments Regulation 1992 and generally put this makes enforcement easier as it is possible to register the Order at the Supreme Court of NSW and then the foreign order is like a judgment of the Supreme Court of NSW. You can look up the countries listed in the Foreign Judgments Regulation 1992 here (scroll to the bottom):

www.comlaw.gov.au/Details/F2004C00005

Not every judgment of a country or state listed win the Foreign Judgments Regulation 1992 will be capable of registration in the Supreme Court of NSW so it is important to check the order with a lawyer.

It is not necessarily "fatal" if the order you need to enforce is: made by a country or state that is not listed in the Foreign Judgments Regulation 1992; not capable of being registered with the Supreme Court of NSW: or the order is about something other than an amount of money. None of the states of America are listed in the Foreign Judgments Regulation 1992 and family law orders can often require an event to occur (such as the sale of a house located in Australia) as opposed to payment of a specific amount of money. Appropriate judgments of a foreign court can be recognised and enforced under the “common law” and “equity” powers of the Supreme Court of NSW.

There are specific Rules about the registration and enforcement of a foreign order made about: the care of children, spouse maintenance ("alimony" in the USA), and child support/ child maintenance.

A final foreign order about the care of a child made in the countries and states specified as "prescribed overseas jurisdictions" in the Family Law Regulation 1984 can be registered and enforced in Australia by the Family Court. You can look up those countries and states here:

www.comlaw.gov.au/Details/F2013C00868/Html/Text#_Toc369093485

The foreign order can only be registered in Australia if the child or one of the parents or another person with rights in respect of the child is located in Australia.

The "prescribed overseas jurisdictions" are relatively limited and are mostly the USA states. Importantly and with the exception of New Zealand no counties from the Asia-Pacific are listed as "prescribed overseas jurisdictions". If you are proposing to enter into an order about a child in a country other than Australia or one of the “prescribed overseas jurisdictions” then it is prudent to consider entering into a “mirror order” in Australia. A “mirror order” is simply an Australian order that reflects what is being agreed in the foreign place under Australian law.

A foreign order about spouse maintenance, child support or child maintenance made in the countries and states specified as “reciprocating jurisdictions” in the Family Law Regulation 1984 can be registered and enforced in Australia. You can look up those countries and states here:

www.comlaw.gov.au/Details/F2013C00868/Html/Text#_Toc369093486

The process of registration and enforcement is mostly handled by Child Support, which is part of the Australian Department of Human Services.

Parental responsibility is the legal duties, powers, responsibilities and/or authority to make decisions in relation to a child. Both parents are presumed to have parental responsibility for a child. Parental responsibility comes with an obligation to consult the other parent about important issues (being "major long term issues") such as the child’s education, religion, culture, health, name or moving a significant distance away from the other parent.

Unless there have been incidents of child abuse or family violence, the court must proceed on the basis of a presumption that it is in the best interests of the child for his or her parents to have equal shared parental responsibility for the child.

Where the presumption of equal shared parental responsibility applies, the court must then consider whether or not it is in the child’s best interests and reasonably practical for the children to spend: "equal time" or "substantial and significant" amounts of time with each of their parents. Equal time does not necessarily mean the child lives with one parent for a week and then the other parent for the next week. Each situation is different. Substantial and significant time requires the child to be with one parent on days that include weekdays, weekends, holidays and special occasions (such as Christmas).

Decisions about the care of a child fall to be determined under the principal of what is in their best interests. In determining the best interests the court looks at one “checklist” in two categories (being the primary considerations and the additional considerations) to work out what is best for a child. The considerations are summarised below.

Primary considerations

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

Additional considerations

• Views expressed by the child and any factors, such as the child's maturity or level of understanding that may be relevant to any weight that should be given to the child’s views.
• The nature of the relationship of the child with each of his/her parents and any other significant persons.
• The willingness and ability of each of the child's parents to facilitate and encourage a close and continuing relationship between the child and the other parent.
• The likely effect of any changes in the child’s circumstances, including the likely effect of the child of any separation from either parent or any other child or significant person with whom the child has been living.
• The practical difficulty and expense in 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 a personal relationship and contract with both parents on a regular basis.
• The capacity of each of the child's parents and any other significant person to provide for the needs of the child.
• The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the parents and any other characteristic of the child the Court considers relevant.
• If the child is Aboriginal or Torres Strait Islander the child’s right to enjoy that heritage and the likely impact any proposed Parenting Order would have on that right.
• The attitude to the child and the responsibility for parenthood demonstrated by the parents.
• Any family violence involving the child or a member of the family.
• Any Family Violence Order that may apply to the child or a member of the child’s family and the circumstances of the Order.
• Whether it would be preferable to make the Order that would least likely lead to the institution of further proceedings.
• Any other relevant factor.

The primary and additional considerations are guided by the objects and principals of the Family Law Act. The objects and principals are summarised below.

Objects

• 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 interests of the child;
• protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
• 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.

Principals

• 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).

After considering all of the above matters a court will decide: who the child lives with (and a child can live with both of his or her two parents); and/ or what time the child spends with one of its parents. A court can also consider how a child communicates with his or her two parents.

To determine what is "reasonably practical" a court must consider:

• how far apart the parents live from each other;
• the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents;
• the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind;
• the impact that an arrangement of that kind would have on the child; and
• such other matters as the court considers relevant.

The Family Court or Federal Circuit Court can make any of the following types of Orders about a child:

• an order which deals with the person or persons with whom a child is to live;
• an order which deals with person or other persons with whom a child is to spend time;
• an order which deals with the allocation of parental responsibility and the form of communications between persons who share that responsibility:
• an order which deals with the manner in which a child is to communicate with another person or persons:
• a child maintenance order (these are rare and only usually apply to children not covered by the law concerning Child Support);
• an order which deals with the steps which must be taken before an application to change or vary an order is made:
• an order which deals with the process to be used for resolving disputes about the terms or operation of the order: and
• an order which deals with any other aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child:

Parents are encouraged by the Family Law Act to reach an informal agreement between themselves about arrangements concerning their children by entering into a parenting plan. A parenting plan is a written document signed and dated by the parents of children that is made free from duress or coercion and which deals with matters including the living, arrangements for a child and how the parents deal with their parental responsibilities. It is desirable to include in a parenting plan provisions as to the way future conflicts or misunderstandings or the changing needs of the children or parents will be addressed.

A parenting plan is not enforceable as an Order of a court, although a court will consider the terms of such plan in the event of a later dispute in the court.

Your family lawyer should address you to non litigious approaches and advise you of their obligation to make a genuine effort to settle a dispute regarding a child by enter into a parenting plan.

If you already have an Order in place regarding arrangements for your children then you should obtain legal advice before entering into a parenting plan. Why? Many Orders can be automatically varied with the agreement of both parents by making a subsequent (later) parenting plan, unless the Orders state that they cannot be altered by a parenting plan. The Orders will only be varied to the extent of any inconsistency with the parenting plan but this may lead to important legal changes which should be properly considered and understood.

It is a key pillar of family law that parents share rateably in the financial costs of caring for their children. A starting place for parents seeking to work out how they share the financial support of their children is the Child Support Section of the Department of Human Services. You can access the Department’s information about child support here:

The amount of child support payable (the assessment) by one parent to another is worked out by the Department of Human Services based upon several key criteria including the number of nights that a child lives with each parent and the taxable incomes of each of the parents. After the key information is input into the relevant formula the Department of Human Services will determine a monthly amount of money payable by one parent to the other parent. This monthly amount of money is intended to cover all of the financial needs of the child including their food, housing and any school fees. The monthly amount of money can be paid to the other parent through the Department of Human Services or the parents can agree on a “private collection” arrangement where one parent pays the monthly money directly to the other parent’s bank account.