PARENTING

The Family Law Act (1975) governs all parenting arrangements regarding children. The objective of the Act is to ensure that parents fulfil their duties and responsibilities regarding the care, welfare, and development of the children, to ensure that they can achieve their full potential.

To promote these objectives, it is generally accepted that:

• children have a right to know and be cared for by both parents
• children have a right to spend time and communicate on a regular basis with both parents and other people significant to them;
• Duties and responsibilities that relate to the children should be shared by both parents
• parents should consult and agree about the future parenting of their children.

Relocation of Children

The issue of one party wanting to move with the children to another city, state or country, is an issue that often arises upon separation. This issue can be a very emotional and daunting. When the question of relocation is raised, you should obtain legal advice from a specialist family lawyer.

The court will ultimately decide whether it is in the children’s best interests to relocate. This decision will be based on the competing proposals of each parent, as well as other considerations which include the following factors:

• The maturity, sex and background of the children and any wishes they express;
• the nature of the relationship of the children with each party and with other significant people, such as grandparents;
• the likely effect of any changes in the children’s circumstances;
• the practical difficulty and expense of the children having contact with the non-relocating party;
• the need to protect the children from physical or psychological harm caused, or that may be caused, by abuse, ill-treatment, violence or other behaviour; and
• whether making an order for relocation would be least likely to lead to further Court proceedings.

Enforcement and Contravention of Parenting Orders

The Family Court and Federal Circuit Court of Australia have processes for establishing and enforcing parenting orders. Taking into consideration the best interests of the child as a starting point, the court will then then exercise discretion in deciding whether to enforce those orders.

A party can file a contravention application in the court, if the other party breaches a parenting order. The Court can then make orders, including for:

• punishment of the contravening party, for example by fines;
• consensual resolution through mediation, negotiation or counselling;
• make up time with the child/children; and
• variation of the original order.

PROPERTY

Married Couples

 The Family Court and Federal Circuit Court of Australia have the power to deal with property and spending of the parties to a marriage whether held individually or jointly. The Court also considers the financial resources of either party.

All property interests of the parties, whether held individually or jointly, can be altered by the Family Court or the Federal Circuit Court. The Court will also consider the financial resources of either party.

In general, when the Court is required to make an assessment of the respective entitlements of the parties it will follow the following process:

1. Identify and value all available property, liabilities, superannuation and financial resources;
2. Consider whether it is just and equitable for there to be an adjustment of property;
3. Consider the financial, non-financial, homemaker and parenting contributions made by the parties throughout the relationship and post-separation.
4. Look at each party’s future needs and resources and determine whether it is appropriate to make an adjustment of the available property and/or resources in favour of one party having regard to those factors;
5. Determine whether the orders for the division of the property, liabilities and financial resources in accordance with steps 3 and 4 results in a just and equitable property settlement.

De Facto Couples

The Court has the power to deal with the property and financial resources held by the parties to a de facto relationship, and determine an outcome that is just and equitable, taking into account a number of factors.

De facto couples largely have the same financial rights and remedies available to them as married couples, and property and maintenance matters are also dealt with under the Family Law Act 1975. Accordingly, the disputes will be dealt with by the Family Court and Federal Circuit Court of Australia. De facto couples include same sex couples.

For de facto couples, applications for property settlement must be filed with the Court within 2 years from the date of separation.

Property matters can also be resolved by negotiation and formalised as a financial agreement.

DIVORCE

Counselling

Counselling can help you explore the possibilities of reconciliation, or help you work through the process of separation.  Divorce and separation can be hard, and many people struggle with adjusting to life after separating from a partner. Counselling may also assist you resolve matters affecting the welfare of children.

Counselling may also be directed by the Court if an application has been made in the Family Court in relation to children.  Depending on the age of the children and the issues in dispute, the counselling may involve the children.

There are government funded and private counselling services available within the community. We can assist you to find an appropriate counsellor or service which suits your individual needs.

Alternative Dispute Resolution

Negotiation, mediation, and collaboration are alternative dispute resolution processes that may help you resolve property or parenting matters, without the need to become involved in Court proceedings.

Divorce Procedures

After being separated for 12 months, either party to a marriage can apply for a divorce. The parties must have lived separately and apart during that time, although they can be separated under one roof.

An Application for Divorce is separate from property settlement applications and parenting proceedings.

Applications for Divorce are filed online in the Federal Circuit Court of Australia.

CHILD SUPPORT

Both parents are primarily responsible for maintaining their children.

The Child Support Agency (Department of Human Services)

The formula contained in the Child Support (Assessment) Act 1989 contains a formula that determines the child support that is generally payable. Either parent can ask the Child Support Agency to make an assessment of the amount payable and the assessment is enforceable. Depending on the circumstances of the parties, different formulae will apply.

There are limited circumstances in which a child support assessment will be varied. If a party wants to vary a child support assessment, they must usually apply to a child support review officer of the Child Support Agency.

Seeking a Variation from a Child Support Assessment in Court

If there are proceedings pending in either the Family Court or the Federal Circuit Court, a variation from the child support assessment can be made.

The Court can also make orders regarding child support if:

• the parents separated before 1 October 1989;
• the child is over 18 years of age; or
• the parent who is the prospective payer lives overseas and is not covered by the child support legislation.

Child Support Agreements

Parents can create and enter into different types of child support agreements. These may be short term or long term agreements. There are two specific types of child support agreements:

1. Limited Child Support Agreements; and
2. Binding Child Support Agreements.

Child support agreements can be registered with the Child Support Agency, making the consent arrangement enforceable. Child support agreements can provide for a range of issues. These may include the amount of child support to be paid periodically and how expenses such as school fees are to be paid by the parties.

Child Support is typically calculated using formula set out in the Child Support (Assessment) Act 1989.  These formulas will take into account circumstances, such as how many children there are and how much time a non-parent carer spends with the children.

A number of factors will be taken into account in the basic formula, which includes the following:

• Each parent’s taxable income;
• The time each child lives with each parent; and
• The age of the children.

SPOUSAL MAINTENANCE

Married Couples

A party to a marriage may be entitled to receive spousal maintenance if they are unable to financially support themselves adequality after separation.

In determining the amount of spousal maintenance payable, in the first instance, the financial needs of the person making the application and the financial capacity of their spouse will be considered. In making this assessment, the Court ignores any social security allowance or pension that is being paid to the person applying for spousal maintenance.

The party making an application will show that he or she has a need for spousal maintenance if one of the following circumstances is established:

• they have the care and control of a child of the marriage who is under 18 years of age;
• their age or physical or mental incapacity impedes their ability to work; and
• any other adequate reason.

De Facto Couples

De facto couples have the same maintenance rights and remedies as married couples, and maintenance matters are dealt with under the Family Law Act 1975.  A dispute will be dealt with by the Family Court of the Federal Circuit Court. De facto couples include same sex couples.

A party to a de facto relationship may be entitled to receive maintenance, if he or she is unable to financially support themselves adequately after separation.

In considering a maintenance application, the Court takes into account such matters as the age of the parties, their health, their standard of living before separation and their obligation to support any other person.

A party can make a maintenance application on an urgent, interim or final basis separately from a property settlement application.

In considering the time frame for a maintenance order, the court will take into account the age of disability of the party making the application. Maintenance orders are usually made for a limited period.

Financial Agreements

Financial agreements are relevant to both married and de facto (including same sex) couples. In order for the agreement to be binding some strict rules need to be followed, so legal advice may be required.

Married Couples

Financial agreements can be made before a marriage, during the marriage or even after a marriage breaks down. It is a contract between spouses that usually covers what is agreed will happen financially throughout the marriage and upon separation.

These agreements are generally referred to as pre-nuptial agreements, which can be misleading, due to their potential to be used at all stages of a marriage.

De Facto Couples

Financial agreements between de facto couples are dealt with by the Family Law Act 1975. De facto couples include same sex couples.

These agreements can be entered into at the start of the relationship, during the relationship and upon separation. In order for these agreements to be binging, some strict rules need to be followed.