Patricia Jenman - Principal Solicitor

Family Law

WHY SEE A SOLICITOR?

Competent Legal advice is always recommended in order for a person to understand their legal rights and obligations and to work their way through the relevant law and court procedures which are constantly changing as evidenced by the many amendments to the Family Law Act and the court’s rules since the Family Law Act was passed in 1975.
If your relationship is breaking down or has broken down it is important to obtain professional assistance because decisions made at the time of separation can have significant impact later on and so advice should be sought at he earliest opportunity.
Legal advice helps  people going through separation by enabling them to know and understand their legal rights and what to expect as a consequence of the seperation. Knowledge can also assist to minimise and manage conflict.

WHAT WE DO

DIVORCEdivorce papers

The only ground for divorce is irretrievable breakdown of the marriage. To obtain a divorce you and your spouse must have lived separately for at least one year.
You can live separately and apart in the same house, but to do this you would need to consult a solicitor.

DEFACTO COUPLES & FAMILY LAW

The changes in the law affecting defacto couples affect property division, maintenance, financial agreements and the superannuation of people in defacto relationships.

The laws include same-sex relationships within the definitions of “De facto Couple”

In Federal laws.

All de facto couples now have the same rights as married couples under the family Law Act in relation to the distribution of property. There have also been changes to the Child Support (Assessment )Act which affect how child support applies to same –sex couples.

Who do the new laws apply to ?

You can make an application for a “defacto property settlement” under the new family law Act provisions if any one or more of the following conditions apply:

  • Your defacto relationship with your partner lasted for at least two years in total;
  • You have a child with your defacto partner;
  • You have made a substantial contribution to the property or finances of your partner;
  • The relationship was registered under a State or Territory Law; and
  • You lived for at least one-third of your relationship in NSW  or another state to which the new laws apply (currently all Australian states and territories except South Australia or Western Australia)

The sex of the partners is not a  relevant consideration. The new laws state specifically that a de facto relationship can exist between two people of the same sex, or of the opposite sex.

The new law also states that a defacto relationship can exist even if one of the partners is legally married to another person at the time.

When did the new laws start?

The new laws apply to de facto relationships that broke down on or after the 1st March 2009.

However, if your relationship has broken down before this date , you can apply to the court for a property order if you and your ex-partner agree to have the new laws apply. That agreement must be in writing and must be signed by both parties. You both need to obtain independent legal advice. You will both need a signed statement from your lawyer that he advice has been given. As an alternative, you may be able to seek a property settlement through the State Courts.

When can I apply?

You must apply to the Family Court in relation to property and maintenance issues within 2 years of your relationship ending. Applications in relation to children can be made at any time.

How will the courts decide how our property should be divided?

The Family Court will consider the following factors:

  • What each of you owned before the relationship.
  • The net value of your current assets- this includes the value of any property such as houses, shares, boats, caravans or superannuation.
  • Contributions made by each person over the course of the relationship. This includes:

Direct Financial Contributions (for example wages.or payments for properties or improvements to properties)

Indirect Financial Contributions(for example gifts, inheritances from relatives or payment of household expenses)

Non –Financial contributions (i.e. do-it –yourself renovations and contributions to the welfare of the family, like caring for children or domestic tasks)

Your future needs, including considerations such as who will have the care of any children, your relative earning capacities, and any financial resources available to either of you.

Consent orders / Binding Financial Agreements

You and your partner can register your agreement with the Family Court in the form of Consent Orders. You cannot change your mind at a later date and ask for more assets. Consent Orders usually mean that you are exempted from paying stamp duty if any properties are sold or transferred.

If you wish to make consent orders / a binding financial agreement you will need to speak to your lawyer about this.

Maintenance

De facto couples are now able to claim maintenance for their financial support. If you make a maintenance application, the court will consider the relative financial position of each of the partners , and will make an order for maintenance if:

  • You cannot adequately support yourself financially for reasons of health, having the care of a child of the relationship or another reason; and
  • Your former partner is able to support you financially.

If a maintenance order is made it will usually last for a limited period of time.

Same sex parents now recognised as the child’s parents.

Before the amendments same-sex parents could obtain parenting orders if they could demonstrate that they were a person concerned with the care, welfare or development of the child. They can now apply to the court for parenting orders in their own right as a parent.

CHILDREN & FAMILY LAW

Since the passing of the Family Law Act  in 1975, various terms have been used to describe the orders that a court can make about children. The original terminology of “guardianship”, “custody” and “access” was replaced in 1995 by “parental responsibility, ” “residence” and “contact.” Amendments to the Act in 2006 introduced orders as to which parent a child will live with , what time the child will spend with the other parent and how the child will communicate with a parent. These changes in terminology were intended to do away with the concept of “ownership” of children and to concentrate the minds of the parties on what arrangements best suited the needs of their children.

There is now a presumption that parents should have “equal shared parental responsibility” for their children. This is not about time spent with each parent but is about the decision making responsibility of parents, the intent being that parents should consult with each other and together make decisions about important issues affecting their children. In some cases the presumption of equal  shared parental responsibility does not apply or can be rebutted based on evidence.

If there is an order for equal shared parental responsibility, then the court must consider whether it is in the interests of the children to spend equal time with their parents and if not whether they should spend substantial and significant time with the parent that they do not primarily reside with. As a consequence of these amendments, and also as a consequence of societal change, it is now often the case that children of separated parents will spend substantial time with each of their parents.

Where parents cannot agree on a particular issue, then the court can decide ,but only after the parents have tried to resolve their differences through family dispute resolution.

Ultimately a court must make the decision that is in the best interests of the child, as the Family Law Act says that this is the paramount consideration.

In determining what is in the best interests of the child the court must consider a range of factors which are set out in the Family Law Act. Commonly a court will be assisted in reaching its decision by a report from a family consultant or other expert such as a psychologist or psychiatrist.

Parenting Plans.

Parents who are able to reach agreement about arrangements for their children can enter into a parenting plan rather than seeking an order from the court. A parenting plan must be in writing, and be signed and dated. A parenting plan is not binding or enforceable, but if the parents subsequently end up in court then the court will have regard to the terms of the parenting plan in reaching a decision. Parents can change court orders by entering into a parenting plan. Lawyers van help parents to work out and prepare a parenting plan.

Family Violence.

One of the primary considerations for a court in deciding a case involving children is the need to protect the child from physical or psychological harm from being subjected to or exposed to, abuse, neglect or family violence. The court must also  take into account any family violence that has occurred, and any family violence order that applies to the child or a member of the child’s family.

PROPERTY SETTLEMENT

The Family Law Act provides that any application for property settlement must be commenced no later than 12 months after the parties’ divorce becomes final.otherwise leave of the court is required to follow a four step process as follows:

1 Firstly, the court must identify and value all the property and financial resources of both parties as at the date of the hearing.

2. Secondly, the court must consider and assess the contributions made by each of the parties throughout their relationship and following their separation. These contributions can be direct financial contributions, indirect financial contributions, direct and indirect non –financial contributions and contributions as a homemaker and parent.

3. Thirdly, the court must consider the future needs of each of the parties, looking at such factors as their age and state of health, the capacity of each of the parties to maintain employment, the responsibility of each of the parties to provide for any children of the marriage or anyone else that the party has a duty to maintain, the length of the marriage and the way in which it has affected either party’s capacity to earn an income, the standard of living that is reasonable having regard to the circumstances of the parties, any financial resources such as entitlements under a trust, and whether either party has repartnered.

4. Fourthly, the court must consider the result reached after stages one, two and three, and determine whether that result is just and equitable in the circumstances.

Judges dealing with applications for property settlement have a wide discretion, particularly in the assessment of contributions and future needs, and it is not possible to advise with certainty what the outcome will be. However, we will give our clients a reasonable range of likely outcomes so that in the course of negotiations they can decide whether settlement proposals are reasonable.

SUPERANNUATION.

Prior to the enactment of the Family Law Legislation Amendment (Superannuation) Act , 2001, superannuation entitlements were not considered to be “ property” , but rather a “Financial Resource” .

This led to uncertainty and sometimes a perception of unfairness in the way that superannuation  was taken into account in a property settlement, particularly as the court was unable to make orders dividing or dealing with superannuation. While the court recognised the practical relevance of superannuation , it was powerless in many cases to deal effectively with superannuation.

Under the amended legislation, superannuation is treated as though it were ‘property’ and the court has the ability to make orders which directly impact on superannuation entitlements and which bind trustees of superannuation funds. The amendments enable a court , in effect, to transfer part of one spouse’s superannuation to the other spouse. This gives the court the flexibility to deal with superannuation in a way which is fairer to both parties. The amendments also enable a court to ‘flag” a superannuation interest so that the fund will not pay out the superannuation when the member retires but will refer the matter back to court for a decision as to what should be done at that time with the superannuation. The amendments not only give the court wider powers. They also allow parties to agree on the division of superannuation.

In summary, there are now three ways in which superannuation may be dealt with:

  • A splitting order or agreement, which has the effect of transferring a portion of one spouse’s superannuation interest to the other spouse;
  • A flagging order or agreement, which brings the matter back to court at the time of retirement;or
  • An offset of superannuation against other assets, as has always been possible.

BINDING FINANCIAL AGREEMENTS

Amendments to the Family Law Act which commenced in December 2000 enable parties to enter into binding financial agreements before they marry, during their marriage and after they divorce. These agreements, provided they comply with the formal requirements of the legislation, exclude the jurisdiction of the court to make property orders and /or spouse maintenance orders, to the extent that these issues are dealt with in the agreement.

Binding financial agreements do not need the approval of a court, but each party needs to have independent legal advice about the agreement and a certificate needs to be signed by the legal practitioner who gives that advice.

INJUNCTIONS

An injunction is an order requiring a person to do something or restraining a person from doing something. The family Law Act gives courts the power to grant injunctions for the personal protection of a party to a marriage or restraining a party to a marriage from entering or remaining in the matrimonial property or premises in which the other party to the marriage resides.

Injunctions can also be made restraining a party to a marriage from entering the place of work of the other party to the marriage, or the place of work or the place of education of a child.

In cases where an injunction has been made for the personal  protection of a person, a police officer may arrest without warrant a person whom the officer reasonably believes has breached the injunction.

DOMESTIC VIOLENCE ORDERS

State crimes legislation empowers State courts to make apprehended domestic violence orders for the protection of a person who has been the victim of domestic violence or has been harassed or who reasonably fears that hey will be subjected to domestic violence.

These orders may restrain the person responsible for the violence or harassment from approaching or contacting the other person, from stalking the other person, or from enterng the other person’s home or place of work. Apprehended Domestic Violence Orders can also be made for the protection of children. A breach of an apprehended violence order is a criminal offence which carries serious penalties including imprisonment.