In days gone by, children were made the subject of custody orders and would go on access visits. In more recent times, the Court makes orders with respect to where children will live, and when they will spend time with a party.
When parents separate and cannot agree where their child will live, one or both of them may seek orders from the Family Court.
An application to the Court will usually do two things. First, it alerts the Court that these parents need a Court hearing to decide where their child will live. Second, it alerts the Court that some arrangements need to be made for the interim period before the parents get their day in Court.
Orders with regard to where the children will live are therefore made having regard to the following issues:
- Where is the child currently residing?
- How did the child come to be there? (ie; was it because that parent was the primary care- giver before separation?)
- Is the child settled in his/her present environment?
- Is there any compelling reason why that present environment should be disturbed?
The Court is primarily concerned with stability for the child in the interim.
At a final hearing, the Court has the opportunity to see both parents (or whoever else might be seeking orders) give evidence and be cross examined. The Court has the luxury on this occasion of trying to establish who is offering the best arrangements for the child's welfare.
You may hear people talk about having visitation rights. This term is incorrect, as The Family Law Act gives rights only to a child. The child has the right to know both parents, and to have a relationship with each.
Accordingly, the Court will almost always grant an order to a parent to allow their child to spend time with them.
The frequency and duration of these visits will depend upon the relationship that presently exists between the child and the parent. The Court will have regard to any difficulties the parents may have when deciding if any special arrangements need to be entered into with respect to handover arrangements. Where necessary, the court may make orders that handover take place at a contact centre, in order to avoid conflict in front of the child.
It is not uncommon for one parent or the other to wish to relocate after separation. Where relocation will have an impact upon contact arrangements this is an important issue and the parent intending to relocate should take the advice of a solicitor at the earliest possible opportunity.
There are no "standard" time arrangements. Time should be tailored to meet the circumstances of each family. It is worth noting that with babies and young children, visits will usually be of shorter duration, but may happen much more frequently. This is to give the child the best possible opportunity to forge a bond with that parent.
The Court will make orders with respect to who has the responsibility for a child's care, welfare and development. This order will normally be split into responsibility for day-to-day decisions on the one hand, and longer term decisions on the other.
The parent with whom a child is living will normally have responsibility for day-to-day decisions. This may include such things as what the child has for lunch, how the child gets to school, what time the child goes to bed etc.
Parents will normally share responsibility for longer-term decisions. These may include such issues as where the child goes to school, what religion the child is taught, and may extend to decisions on such things as what extra curricular activities the child participates in.
If asked, the Court will usually make orders to ensure that a parent receives copies of the child's school reports, newsletters, etc. The Court will usually also make orders to ensure that both parents are aware of any medical attention the child receives.
The Charlestown Law Firm Solicitors, Leon and Marie Anne, can assist you with all aspects of child- related matters. If you require representation or simply wish to discuss your options, please contact our office
to arrange a confidential consultation.
The Family Court presently has jurisdiction to determine the property interests of separated married couples only.
The Court addresses this issue by following steps in the process:
The first step is to make a list of the assets and liabilities of the couple. For the purposes of this exercise, the Court is not concerned with who has registered title of any particular assets, it simply wants to know what exists.
For example, the Court is not concerned with whether or not one party is the sole registered proprietor of the home, or if one party is the sole card holder for a credit card account, it wants to know every relevant asset and liability.
Recent amendments to the Family Law Act give the Court a wider range of powers in relation to superannuation. The Court now has the power to split superannuation policies and, in some cases to order that a portion of a superannuation policy be rolled over into a fund in the name of the other spouse.
It can save you time (and therefore money) if you can bring an accurate list of assets and liabilities with you to your first conference with your solicitor.
Considering the Contributions
The next step is to consider who contributed how much throughout the marriage.
The Court wants to know who had what assets at the commencement of the relationship, who made what financial contributions throughout the marriage, and the details of all non-financial contributions. Non-financial contributions might include such things as care of children, maintenance and upkeep of a family home, or improvements to a property such as building a deck.
It is important to inform your Solicitor of such things as inheritances, lotto wins, redundancies and other windfalls throughout the marriage as they can all influence the outcome of this step.
If the Court were to stop the exercise at the conclusion of the second step, it might seem relatively easy to determine who should receive what. However, the Court must take into account a list of factors and make allowance for them as they sees fit. The list of factors in summary form are as follows:
- Age, health and income earning capacity of the parties,
- Financial resources of the parties (which no longer has as much relevance as it used to)
- Superannuation, (which can take into account likely future inheritances, etc)
- Responsibility for the care of children under the age of eighteen
- Financial circumstances surrounding any new relationship of the parties
The Court must take into account all of the relevant factors from the second and third steps and come to a decision as to how the assets and liabilities of the parties should be divided. The exercise is not a precise science, and it is for that reason that most solicitors try to encourage separated parties to attempt to reach negotiated settlements rather than let the court make decisions for them.
Each individual has a duty to support their spouse to the extent that the spouse has a need and to the extent that the respondent spouse has the capacity to pay. Spousal maintenance is quite separate to child support, though child support payments are taken into account as mentioned below.
The Court engages in a two step process when deciding whether or not one spouse should be paying maintenance to the other.
The First Step-Is There A Need?
The Court must consider the income and reasonable expenses of the applicant spouse. For the purposes of this exercise, money received by way of means tested pensions (for example, a Centrelink sole parents pension) is not taken into account as income.
Funds received by way of child support is taken into account as income.
The reasonable expenses of the applicant spouse will be assessed having regard to, amongst other things, the lifestyle enjoyed by the parties prior to separation.
If the applicant spouse's income falls short of their reasonable expenses, then there is said to be a need for maintenance to the extent of that shortfall.
The Second Step-Is There A Capacity To Pay?
If the Court is satisfied that there is a need for maintenance, it must then examine the respondent spouse's capacity to pay.
This is essentially a similar exercise to the first step. Income from means tested pensions will not be taken into account.
It is important to understand that if income is in some way reduced by such means as discretionary trusts (even though they may be perfectly legal for tax purposes) the Court has a discretion to look beyond such devices and assess the true income generated by the individual.
When the Court is considering the reasonable expenses of the respondent parent, it will not accept as reasonable expenses, any costs associated with maintaining a new partner or his/her children except in special circumstances.
Child support payments are taken into account as a reasonable expense, even if they are paid in relation to a child of another relationship.
If there is a surplus of income over expenses, then the Court will find that there is a capacity to pay maintenance to the extent of that surplus.
Spousal maintenance can be paid in periodic payments (weekly, for example) or in a lump sum.
Spousal maintenance applications are usually quite complex and are always very subjective to the circumstances of each relationship.
If you would like more information on applying for spousal maintenance, or would simply like to speak to our solicitor
about your circumstance, please contact The Charlestown Law Firm.
Binding Financial Agreements (Pre-nuptials)
Binding Financial Agreements are probably more commonly known as pre-nuptials.
Many individuals intending to marry wish to create as much certainty and safety as possible in relation to their financial circumstances. This is particularly so of individuals anticipating marriage who have children from a previous relationship.
Binding Financial Agreements must be drawn in accordance with quite strict legal criteria. The Charlestown Law Firm Solicitors Leon and Marie Anne can prepare such documents for you.
Changes in circumstance, such as the birth of children can override a pre-nuptial agreement and accordingly they must be drafted in anticipation of such events.
Common features of Binding Financial Agreements include:
- Provision for the agreement to lapse if parties stay married for an agreed period of time.
- Schedules setting out the property of each party at the commencement of the marriage and provision that they each keep those assets no matter what happens throughout their marriage.
- A schedule to be kept with the Agreements detailing major purchases made by the parties throughout the marriage and how those assets are to be treated.
It is most important that if a couple are thinking about entering into these Agreements that they act on that intention as early as possible before the scheduled wedding. There are many benefits associated with having a skilled and experienced legal draftsmen prepare your Agreements, therefore it is best to arrange a consultation
with The Charlestown Law Firm prior to the wedding date.
What happens if someone breaches orders of the Court?
The Court will only act upon a breach of court orders if the aggrieved party files an application. The Court has no other way of knowing that Orders were breached.
The applicant party must set out the particulars which constitute the breach in an affidavit. The application itself reads like a criminal charge sheet. A contravention application is indeed quasi-criminal in nature. At The Charlestown Law Firm, your Solicitor can assist you with the completion and witnessing of an affidavit.
The hearing of a contravention application is split into two parts:
Part One-Was there a prima facie breach?
The applicant will be required to prove to the Court that there were Orders in place at the time and that it was not complied with. Establishing these facts is called showing a prima facie case.
Part Two-Was there a reasonable excuse?
If the applicant establishes a prima facie case, the burden of proof shifts to the respondent, who must convince the Court there was a reasonable excuse for the Orders not having been complied with.
The respondent will give evidence and be cross-examined. If the Court is satisfied that there was a reasonable excuse, then that is the end of the exercise. However, if the Court is not satisfied that there was a reasonable excuse, the Court must then punish the respondent.
Punishment for contravention
The first time that someone is found guilty of contravening orders, unless the contravention is a very serious one, the Court will usually try to ensure that the respondent understands his/her obligations under the Orders.
However, for second and subsequent breaches of Orders, the Court will impose progressively more severe punishments. These can range from recognisances, suspended sentences, fines, Community Service Orders, to imprisonment for serious breaches.
Contraventions are usually indicative of ongoing relationship difficulties between parents or an unnecessarily obtuse attitude by one of the parties. The Court has the power to make whatever amendments are necessary to minimise the scope for further dispute.
Many people mistakenly believe that you need your spouse's permission to obtain a divorce.
The Australian system of "no-fault" divorce means that either party to a marriage is entitled to seek a divorce upon the break-down of that marriage. The marriage is deemed to have broken down if the parties have lived "separately and apart" for twelve months or more.
Most Applications for Divorce are filed in the Federal Magistrates Court because the filing fees are roughly half those of the Family Court.
Once filed, there must be sufficient evidence placed before the Court that the other party was served with a copy of the application within the time limits set out in the rules of the Court.
The Court takes the issue of service very seriously in relation to divorce applications because once a divorce is granted a very important time period commences. If you need to seek Court Orders in relation to either property or spousal maintenance and have not done so by the time you get divorced, you have twelve months to seek those Orders. If you do not seek those Orders within the specified time frame, you must request the leave of the Court to do so and explain the delay to the Court's satisfaction.
On the date the Court hears your application for divorce you are granted a Decree Nisi (assuming all of the criteria were met). This decree becomes a Decree Absolute one month after the Decree Nisi was granted. You may not re-marry until your decree has become absolute.