Family Law

You should see a lawyer as soon as possible after separation or even if you are thinking about separating. A lawyer will make you aware of your rights in relation to division of the matrimonial property and possible spousal maintenance where children are involved.

You and your spouse may already have discussed how you will divide the assets of your marriage between you, however you should still consult with a lawyer to ensure that any agreement reached is fair and reflects your true entitlements under the Family Law Act 1975.

You do not lose your entitlements to your share of the home and the other assets if you are the one to move out. However, if you are the one to move out you should be aware it might take some time to divide your assets and during this period you will need to find alternative accommodation. We suggest that if you are leaving you ensure that you take all of your personal property at the same time as it might be difficult to go back and collect items which are dear to you.

In general the Court utilises a four step approach when considering what is a just and equitable division of the assets and liabilities of the parties at the end of a marriage:

1. The current financial position of the parties.
2. The financial contributions of each of the parties at the commencement of the marriage.
3. The financial and non-financial contributions of each of the parties during the marriage.
4. The “future needs” of each of the parties including:
   • The age and state of health of the parties.
   • The income, property, financial resources and capacity for employment of the parties.
   • Whether there are any children out of the relationship and who the primary caregiver for the children is.
   • The duration of the marriage and the extent to which it has affected the earning capacity of a particular party.
   • Any child support that may be payable.

The Court has powers to split superannuation, which essentially means transferring part of one spouses’ superannuation to the other spouse. If one party has substantially larger superannuation benefits compared to the other party, a superannuation splitting order may be applied for, to equalise the parties’ entitlements.

If an agreement has not and can not be reached by the parties, either party may make an Application to the Court for a property division.

A property application can be filed in either the Federal Magistrates Court or the Family Court at any time after separation, prior to the parties being divorced. After the parties divorce an application for property proceedings must be filed within 12 months of the divorce becoming absolute.

If you have been served with a Court Application you should seek legal advice immediately.

When a party files an Application with the Court the first hearing date is usually within six weeks of filing the Application. You and/or your legal representative must appear at the first hearing date. If you do not appear or have someone appear on your behalf, the Court may make Orders, in your absence, which are binding upon you.

If at any time between when the Application is filed, and when a matter is determined by the Family Court or the Federal Magistrates Court, the parties are able to reach an agreement as to the division of property, the matter can be resolved by the parties’ signing Consent Orders.

Upon the parties filing signed Consent Orders with the Court and those Orders being sealed by the Court, the Court proceedings will be at an end.

Binding Financial Agreements (or prenuptial agreements as they are called in the USA), provide a way to formalise agreement between couples as to the division of their assets and liabilities. At the end of a relationship they can be used as an alternative to entering into Consent Orders through the Family Court.

Once a Binding Financial Agreement is made, the Agreement determines how the property of the marriage or relationship is to be divided if the relationship ends.  If a Binding Financial Agreement is in place, and complies with the requirements set out in the Family Law Act 1975, both parties are bound by the agreement and cannot apply to the Court in relation to the division of property.

For a Financial Agreement to be binding both parties must receive independent legal advice in relation to their rights and the advantages and disadvantages of entering into the Agreement.

A Binding Financial Agreement can be made by a couple before, during or after marriage.

A couple can also enter into a Binding Financial Agreement even if they are not planning to marry.

A Divorce Application may be made by either party or jointly. An Application for Divorce can only be filed upon the parties being separated for a period of no less than 12 months.

A Divorce may still be granted if the parties were separated, but living under the one roof for all or part of the12 months after separation. Affidavit material is required to prove the parties were in fact separated, but living under the one roof.

You do not have to have financial issues resolved prior to applying for divorce but there is a twelve month time limit to file an application relating to property matters after the divorce has been finalised.

Under s4AA of the Family Law Act:

1. A person is in a de facto relationship with another person if:
   • the persons are not legally married to each other; and
   • the persons are not related by family; and
   • having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

If you and your domestic partner separated before 1 March 2009, and proceedings have not already been filed, your matter will be dealt with under the Victorian Relationships Act 2008. This means that proceedings must be filed in a State Court, unless both parties agree to proceedings being heard in the Family Court or Federal Magistrates’ Court.

If you and your domestic partner separated on or after 1 March 2009 all claims are dealt with under the Family Law Act Proceedings can therefore be issued in the Family Court or the Federal Magistrates’ Court.

Parents of children under the age of 18 have joint parental responsibility for their children unless otherwise ordered. This means there is a presumption that every parent has “all the duties, powers, responsibilities and authority which by law parents have in relation to their children” regardless of whether the parents are living together or separately and apart.

Parental responsibility is independent of the respective amount of time that a child spends with each parent.

The Family Law Act 1975 provides that when determining what parenting orders to make the court must have the best interests of the child, not the parents, as its paramount consideration.

Depending on the circumstances of each family there is a range of issues which the court must take into account when determining whether equal time or substantial and significant time will be reasonably practicable and in the best interests of the child.

If the court determines that it is in the best interests of the child and it would be practicable to do so, then it must consider making an order that the child spend equal time with each parent.

If the court decides against equal time it must consider if it is appropriate and in the best interests of the child, for the non-residential parent to spend substantial and significant time with the child.

Every family is different and the factors the court will take into account will vary greatly from family to family.

Parents can make an Application to the Court for Consent Orders in the Family Court to formalise any parenting arrangements they have in relation to the care of their children.

In order to file an Application for Consent Orders with the Court each party needs to seek independent legal advice in relation to the Consent Orders. The Application can then be lodged with the Court and will generally be dealt with by a Registrar of the Court (in chambers) who will make the Orders by Consent.

If you and your spouse can not agree on the living arrangements for your children after separation you and your spouse should attend Family Dispute Resolution to attempt to resolve these issues.

There are many community centres and organisations which facilitate Family Dispute Resolution in relation to the care of children. Places such as Relationships Australia and Family Relationship Centres offer these services.

If you have attempted mediation without success, or your spouse has refused to attend Family Dispute Resolution, you can make an Application to the Court to make Orders for parenting orders. Prior to issuing an Application you will, in most cases, need to obtain a certificate from you Family Dispute resolution Practitioner confirming you have attempted to mediate.

You should see your lawyer to obtain advice about issuing an Application in either the Family Court or the Federal Magistrates’ Court in relation to children’s issues.

An Application can be issued in relation to the care of children at any time after separation, once the parties have attempted Family Dispute Resolution. There are some circumstances in which the Court does not require that the parties have attempted mediation prior to filing an Application. Those are cases where:

• There has been abuse of the child/children by one of the parties to proceedings or there would be a risk of abuse to the child if there were to be a delay in making the application; or
• There has been family violence by one of the parties to the proceedings or there is a risk of family violence by one of the parties to the proceedings.
• Where the matter is urgent.

A Family Report is a report completed by a psychologist or social worker (also known as a Family Consultant), either appointed by the Court or privately appointed to determine, in the best interests of the children, what orders should be made for the children’s care, welfare and development.

Both the parties and the children of the relationship participate in the Family Report.

The Court does consider the child’s views as to who they want to live with, however, the child’s age and maturity will be taken into account. The child’s views are usually established through meeting with the Family Consultant and/or the Independent Children’s Lawyer.

There is no fixed age when a child can determine where he or she wants to live.

An Independent Children’s Lawyer is a lawyer appointed to independently represent a child or children in Family Law proceedings. The Independent Children’s Lawyer is a party to the proceedings and makes recommendations to the Court as to what they believe is in the child/children’s best interests.

Applications for Child Support are made directly through the Child Support Agency. The Child Support Agency website, www.csa.gov.au, provides comprehensive information as to how child support payments are assessed and how to apply for child support.

The right to spend time or communicate with the child is not dependant upon the payment or non-payment of child support.

In addition, if you separate you may be entitled to a pension or other government benefits, if you are not working or have a low income. You should contact your local Centrelink branch to obtain information as to your possible entitlements.

In a variety of circumstances, including if there are any allegations of violence or improper contact; children may have supervised visits with one or both of their parents in a contact centre. Contact centres also provide venues for contact changeover such that the children can pass from one parent to the other without the parents coming in to contact with each other. There are several contact centres in Victoria; unfortunately most have long waiting lists.

In most cases the surviving parent will assume responsibility for the care of the children, however this will not always be the case and other people who have an interest in the welfare of your child, such as your parents, may apply to the court for an order that the child live with them.

The court is not bound by a statement in your will as to where the children will live after you die. The court must decide what is in the best interests of the children in the particular circumstances of your family.

Unfortunately violence by one spouse towards the other can occur during a relationship or after it breaks down. Issues of domestic violence, harassment and stalking are regarded as extremely serious by both the State Court and Family Court.

Intervention orders are available to anyone who is or was living in a family relationship. A family member who has been threatened with violence or actually assaulted, molested, harassed or who has had their property damaged can apply to their local Magistrates Court for an intervention order.

An intervention order imposes conditions to prevent violent and illegal behaviour between spouses. If breached then the party who ignores the order will be arrested by the police and may be fined or sentenced to a term of imprisonment.