Everything you need to know about Family Law7-June-2019 Family Law By Simone Green
Separation is a difficult, emotional and often vulnerable time when obtaining specialist family law advice is the most critical. Knowing your options and next steps are key to avoiding costly mistakes and parting ways as amicably as possible.
Searching for a divorce lawyer can be overwhelming. Streeterlaw’s holistic, tailored approach to assisting clients and their families through separation and divorce can make all the difference to the outcome.
Our family law experts and NSW Law Society Accredited Specialists will guide you through your various options, offering you the best chance of out of court property settlement and/or parenting or child support agreement via:
for parenting disputes; financial and property disputes including spouse maintenance and child support.
There are times where litigation (going to court) is the most appropriate option, or you may find yourself unwillingly named as a Respondent in an Application filed by your ex-partner. Streeterlaw have a highly specialised team to advise and represent your best interests at all stages of the process with integrity and efficiency.
What is Family Law?
Family Law is a complex area of Federal law which generally falls within 5 categories being Financial (property), spouse maintenance, parenting (child custody and contact), Child Support and Divorce.
The Family Law Act 1975 is federal legislation which ensures consistency in Family Law in all States and territories of Australia, apart from Western Australia who has similar legislation in the Family Court Act.
Both married and de facto relationships, heterosexual or same sex relationships are provided for in the same courts and while different sections of the legislation apply to financial matters, the effect is generally the same in longer relationships.
There is no difference in married or de facto parenting matters.
Family Law is not an arena for justice in the traditional sense, there are no clear winners.
The Court’s primary focus is the best interests of the child, everything else is secondary. This is referred to as the paramountcy principle.
There are no financial penalties applied in financial matters for poor moral or behavioural conduct (with some exceptions regarding family violence) within a relationship, it is a no-fault jurisdiction essentially broken down into 4 steps:
- Identify and assess the asset pool;
- Assess the contributions (financial and non-financial)
- Assess future needs; and
- Assess the overall justice and equity of a financial outcome- this allows a judge to make a discretionary adjustment within a range.
Categories of Family Law
Preventative: when a couple seeks to document the agreed property settlement (if they break up) at a time when they are still together, by way of a Financial Agreement (aka ‘pre-nup’).
This is a preventative approach to avoid later hostile and expensive negotiations or court in the event of future separation. This is a voluntary agreement and both parties require independent legal advice before signing.
Financial Agreements can only be done in respect to financial matters, not parenting arrangements for future or existing children.
Post-Separation– where a couple seeks to finalise their property relationships including splitting their assets and/or payment of spousal maintenance upon the breakdown of the relationship or marriage via:
- Negotiation- resulting in documenting an agreement through a Financial Agreement (aka Binding Financial Agreement (BFA) or Consent Orders; or
- Litigation – Filing an Application for Orders in the Family Court or Federal Circuit Court of Australia (‘the Family Courts’) to obtain judgment where no agreement can be reached; or.
- Arbitration where no agreement can be reached but parties agree to participate. The parties are bound by the Arbitrator’s decision.
This is a payment made to the other spouse (married or de-facto) for their own living expenses, separate from child support. Spousal maintenance is not automatic in property cases where one spouse is in a weaker financial position. The person seeking payment must prove 2 elements:
- Need (government welfare payments are not considered); and
- The paying spouse’s capacity to pay.
A spousal maintenance order is generally made for a defined period and is more likely to be interim rather than a final order although they are more common when the value of assets to be divided is insufficient to meet the needs of the spouse with lower income.
Spousal maintenance orders can be made in either periodic or lump sum payments and are separate from capital payments.
Negotiation: A parenting plan or parenting order may be achieved by agreement and documented by way of a parenting plan or Consent Orders filed with the Family Court.
Family Dispute Resolution (FDR) which includes compulsory mediation or collaborative law may assist to achieve settlement without going to Court.
Litigation: – Filing an Application for Orders in the Family Court or Federal Circuit Court of Australia to obtain judgment where no agreement can be reached.
Mediation: may be court ordered to achieve settlement during court proceedings or entered into voluntarily at any stage.
Most parents will come to their own agreed arrangements for parenting their children after separation without the need for court orders. In some cases, this agreement will be documented and signed and is known as a Parenting Plan.
Parenting Plans rely on parental cooperation and flexibility. They can be updated as agreed when circumstances change by consent, but they are not binding. The terms of a parenting plan can be considered by a judge in later parenting proceedings.
Parenting Orders are made by the Court and are binding but inflexible. Orders are preferable in the following circumstances:
- Where certainty is required for living or time spent arrangements
- Where there is a risk a parent may remove the child (relocation)
- Where there has been family violence and a risk a child will be exposed to family violence in the future
- Where injunctions are necessary (for example no time for a parent, supervised time, or abstinence from drugs or alcohol prior to time with a child)
Where third parties such as schools or child care centres need to facilitate the provisions of the care arrangements such as changeover.
Child support relates to monies paid to the other parent to assist in the child’s costs of living, this is separate to spousal maintenance.
Child support is assessed by the Child Support Registrar from the Australian Government Department of Human Services (DHS) by applying a formula under Part 5 of the Child Support (Registration and Collection) Act 1998.
Child Support may be paid privately between the parents without an Assessment by the Child Support Registrar, or when an Assessment is in place, either paid directly into the receiving parent’s bank account or collected by the Child Support Registrar from the paying parent.
Parents may make their own private agreement departing from a Child Support Assessment by the Registrar. This can be done by way of:
- Limited Child Support Agreement; or
- Binding Child Support Agreement.
As child support is administrative, parents cannot simply apply to the Family Courts for orders for Child Support unless appealing from a decision of the Administrative Appeals Tribunal on a point of law. The exception to this is in circumstances where property proceedings are already pending in the Family Courts and one parent is seeking a stay of child support or a departure order for the Court to make alternate Orders for child support.
Divorce only applies to married people and is the legal dissolution of marriage.
Divorce requires an online Application to the Federal Circuit Court of Australia and may be made as a single or joint application. A Registrar generally makes the Order if the relevant factors can be proven such as:
- Jurisdiction – parties have been legally married
- Separation- parties have been separated for more than 12 months
- Service – when a sole application, the Application has been served in accordance with the Rules and
- Proper arrangements have been made for the care and control of children under the age of 18.
Australia has a no-fault system. As such, the process is largely administrative and provided that all the elements are met, a divorce may even be obtained without the consent of the other spouse.
A divorce application can be made separately from property orders and is not compulsory upon final separation.
Once a Certificate of Divorce has issued, property must be settled within 12 months of the anniversary of the divorce being finalised. If settlement does not look likely within the 12-month period it is safer to file an Initiating Application before the anniversary otherwise it will be necessary to seek leave of the court to file out of time.
Domestic violence or family violence is sadly common among Australian families. The Family Law legislation has widened the definition of what constitutes family violence to include behaviours which are non-physical, coercive and controlling such as economic violence and emotional violence causing fear.
Some examples of family violence identified within the Family Law Act include:
- an assault; or
- a sexual assault or other sexually abusive behaviour; or
- stalking; or
- repeated derogatory taunts; or
- intentionally damaging or destroying property; or
- intentionally causing death or injury to an animal; or
- unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
- unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
- preventing the family member from making or keeping connections with his or her family, friends or culture; or
- unlawfully depriving the family member, or any member of the family member’s family, or his or her liberty.
Personal protection orders can be made by the Family Courts however the State Courts are often the most effective recourse in the first instance. Police will often make an interim personal protection order protecting one or more members of the family on the victim’s behalf and enforce any breaches with criminal sanctions.
The Family Courts can make orders for injunctions to protect one of the parties such as the following:
- Exclusive Occupation orders – allowing one party to remain living in a family home to the exclusion of the other.
- Personal restraints – to restrain one party from entering premises or coming within a defined area of one or more premises.
- Financial restraints – to freeze accounts to preserve assets pending hearing or restrict withdrawals.
Safety of children is a paramount consideration for the Courts when making parenting orders. In both the Family Court and Federal Circuit Courts both parents must file a Notice of Risk of Abuse detailing any actual or risk of abuse of a child when seeking parenting orders. Where Family Violence affecting a child has been alleged on a Notice of Risk of Abuse, the Court may make and order under section 69ZW to obtain documents from the state child welfare agencies such as FACS in NSW.
One of the ways in which the Family Courts determine the most appropriate parenting orders to make in circumstances of family violence is to refer the case to a Family Consultant who will meet with the parties and the children and make and independent assessment of the issues in the case and report back to the judge. In some circumstances, a single expert report may be ordered by the Court for a psychologist or a psychiatrist to assess the risk of harm to a child regarding a parenting proposal.
While Family Violence is very relevant in parenting matters, it also has relevance in financial cases although it is not a strict mathematical exercise in simply awarding an adjustment of assets to the victim of family violence. If an adjustment is to be made to one party on the basis of family violence, it is generally due to the nature and severity of that violence being so extreme as to make the contribution of the victim more onerous. It is more difficult to successfully argue for an adjustment where the victim has made a greater financial or non-financial contribution over the other party even though the violence was severe. An adjustment in the victim’s favour may also be made if the violence has resulted in ongoing health or employment issues.
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