Family Law | Fox And Thomas Lawyers (2022)

Our family law services team is led by Kay Rhodes, a Queensland Law Society Accredited Family Law Specialist. Kay has been recognised as one of Toowoomba and Western Queensland’s leading family and divorce lawyers for the last 5 years by the Doyle’s Guide to the Legal Profession.

We are committed to using a process which is least likely to lead to litigation. Our aim is to preserve the dignity and integrity of the client and where possible, always encourage a mature and civil relationship between the parties.

We work in conjunction with accountants and registered valuers to bring clarity and certainty to property issues. Our family law practice is experienced in dealing with matters which involve agribusiness, large rural landholdings, family-owned enterprises entwined with trusts, and corporate structures, and third parties. Our family law and agribusiness practices very much complement each other.

When it comes to parenting arrangements, we understand that making decisions regarding your children’s current and future wellbeing is one of the most difficult processes for a separating couple. We take time to listen to your concerns and wishes regarding your children, and then offer practical legal advice and guidance. Our location in Goondiwindi and the breadth of our rural and remote clients means we are well placed to understand the extra challenges that separated families living in rural and remote areas face.

On this page:

  • Binding financial agreements / Pre-nuptial agreements
  • Superannuation agreements and orders
  • Third parties
  • Spouse maintenance
  • Divorce
  • Parenting arrangements
  • Child support
  • Domestic violence applications – protection orders

Binding financial agreements / Pre-nuptial agreements

A binding financial agreement (BFA) provides for a division of property and superannuation, and sometimes spouse maintenance issues, in the event of a separation. A BFA can be entered into by a couple (married or de facto including same sex) before a relationship commences, during the relationship, or after divorce or separation.

We negotiate and carefully draft these agreements after completing full disclosure of all assets and liabilities between the parties.

Where a BFA is made prior to entering a relationship or during the relationship they are often referred to as pre-nuptial agreements or “pre-nups”. These agreements are particularly appropriate for:

  • second relationships where both parties have previously experienced a relationship breakdown and a division of property. One or both parties may be bringing significant assets into the relationship or have adult children whom they wish to protect future inheritances for.
  • relationships where one party owns substantial assets prior to entering the relationship and want to keep those assets separate.
  • relationships where parties are involved in corporate entities or family businesses with other relatives and want to safeguard the business and assets in the event of a relationship breakdown.

Prior to entering in to a BFA, each party must obtain independent legal advice separately from each other on the effect of the agreement on the rights of the parties, and the advantages and disadvantages of the agreement. Each party’s lawyer must issue a certificate confirming the advice has been given.

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Superannuation agreements and orders

For many separated couples, particularly older couples, superannuation may represent one of their most significant assets. In a property settlement, parties may choose to each retain their superannuation entitlements or alternatively, superannuation accounts can be “split” by way of an agreement or Court order.

We draft superannuation agreements and orders as part of a property settlement or standalone agreements to be used in conjunction with property orders.

We deal with commercial and self- managed superannuation funds. We utilise specialists in self-managed superannuation funds to accommodate unique assets held within the fund or investments in associated entities.

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Third parties

In a property settlement, we can assist and represent third parties who are connected to a spouse party and who may end up as parties to property proceedings in the Court.

We give careful consideration of the nexus between the third parties and the spouse party and provide advice on the third parties’ involvement in the proceedings or discussions.

Third parties can include another family member or any other personal or business entity who claim to have an interest in one or both of the parties’ assets or liabilities arising out of the relationship. Examples of third-party entities include testamentary trusts established under a grant of probate or a will, corporate trustees and inter vivos trusts connected to income streams for the parties.

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Spouse maintenance

Spouse maintenance is financial support provided by one spouse to the other where they are unable to support themselves, generally pending a final property settlement. It is typically paid on a periodic basis (i.e. weekly or monthly) but can also be paid as a lump sum.

Both married and de facto couples can claim spousal maintenance. To successfully claim spouse maintenance, you must demonstrate:

  • you are unable to pay for your own reasonable expenses from your own income or assets; and
  • your spouse is able to financially assist you after meeting his or her own reasonable needs.

We give consideration in the first instance to whether spouse maintenance is payable by our client or ought to be received by our client. If payment of spouse maintenance is agreed on, we document it by way of a binding financial agreement or interim consent orders. If necessary, we will file an application in the Court seeking interim orders for spouse maintenance.

Spouse maintenance is particularly appropriate where the spouses have been in a business together and the business has funded much of their lifestyle and general expenses, or where one spouse has been out of the workforce for a significant period of time, e.g. while raising children.

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Divorce

Divorce is the formal dissolution of a marriage which enables either party to remarry. To apply for a divorce order with the Federal Circuit and Family Court, your marriage must have broken down irretrievably and you must have been separated for at least 12 months.

Applications for divorce can be made jointly or it can be an application by one party to the marriage only. In our experience, you should allow approximately 4 months from the date of filing until the date of the divorce order.

If there are children under the age of 18, the Court will be disinclined to make a divorce order unless it is satisfied that proper arrangements have been made for the care of the children.

Divorce and property settlement are not the same thing. Divorce formally terminates your marriage whereas a property settlement deals with dividing your assets and liabilities. You do not need to be divorced or wait 12 months after separation to finalise a property settlement. We generally recommend dealing with your property settlement before applying for a divorce (unless you particularly wish to remarry quickly) because once you are divorced, you only have 12 months from the date of your divorce orders to file an application for property orders in the Court.

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Parenting arrangements

Making arrangements for the care and wellbeing of your children after a relationship breakdown can be an anxious and emotional process for separated parents. At Fox and Thomas, we aim to minimise the impact of your separation on your children and enhance your children’s opportunity to have a meaningful relationship with each parent and their extended families.

Arrangements for the care of your children include where the children will live, how often they see each parent, how they communicate with each parent, what holidays they spend with each parent, and how parents organise their educational and health arrangements.

We assist separating parents in reaching and documenting agreements for the care of the children, whether it be a parenting plan or consent orders. This often involves the use of family dispute resolution practitioners and sometimes involves child focused sessions with appropriately qualified allied health practitioners.

When all avenues for reaching an agreement have been exhausted, parents may file an application in the Federal Circuit and Family Court for parenting orders. When making parenting orders, the Court’s paramount consideration is what is in the best interest of the child.

We regularly assist separated parents in rural locations who are also physically separated by significant distances (including across state borders) and have extensive experience in dealing with relocation matters.

We can also assist close relatives or grandparents to spend time with a child whose parent or parents have died, or in situations where the relative or grandparent has concerns about the child being when in a parent’s care.

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Child support

Child support is financial support provided by separated parents to each other to assist with the cost of looking after their children.

Parents can apply to the Department of Human Services for an administrative assessment of the child support payable. The amount of child support payable by a parent is determined by the child support laws, which use a formula based on the taxable income of both parents, the number of children and the level of care provided by each parent.

If parents can agree, a child support agreement (either limited or binding) can also be entered into on a private basis between parents. Child support agreements are often negotiated as part of a suite of property settlement documents, wrapping up the financial obligations of both parties.

Fox and Thomas can provide advice in relation to disputes over child support assessments and assist in the negotiation and drafting of child support agreements.

We also provide advice and assistance for changes of child support assessments where special circumstances exist in relation to the child or the manner in which the parents expect the child to be raised prior to separation.

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Domestic violence applications – protection orders

Whether it be in the context of family law proceedings or a general dispute between family members, Fox and Thomas can assist with:

  • Applications to seek a protection order or to respond to a protection order in both Queensland and New South Wales.
  • Consideration of whether the order will impact on your ability to work, travel overseas or otherwise conduct your business or employment.
  • Defence of protection applications in circumstances where the evidence indicates it is not desirable for a protection order to be made or it is vexatious and an abuse of the process.

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