Family Law

Children in Family Law Disputes

The Family Law Act 1975 (Cth) underwent significant amendments in 2006 with the introduction of the Family Law Amendment (Shared Parental Responsibility) Act 2006. This Act sought to impose a cultural shift amongst parents to better recognise the importance of both parents being involved in the decision making process over the children’s care, welfare and development. The law now assumes that separating parents must share equal parental responsibility of the children and that the children have the right to spend significant and substantial time with each parent.

When parenting orders are made in Court for shared parental responsibility, the Court must consider what is in the children’s best interests.  The relevant factors are set out in s. 60CC of the Family Law Act which include:

Child Abuse or Family Violence

The court is required to exercise caution and immediate action with respect to allegations of child abuse or family violence.

Where a party alleges that a child has been abused, or is at risk of abuse, the court must consider appropriate interim orders to protect the child and thus acquire relevant evidence.

DNA Testing

In the Family Law Act, section 69P-U sets out the circumstances where parentage is presumed. If the circumstances brought before the court fall outside of this scope of presumption, the court has the power to order a DNA test.

There is no penalty enforceable if the party fails to take a test however the court can draw inferences from the failure.

Changing the Child’s Name

A child’s name cannot be changed without the other parent’s agreement or Court Order.

The Court will only allow a change of name if it is in the child’s best interests. An example of this might be when there is no contact with the father and the child.

Relocation or taking a child overseas

When determining whether a child should be allowed to relocate to another State/country, the Court must consider whether it is “reasonably practicable” for the child to be able to spend equal time or significant time with the non custodial parent.
Convincing a Court to allow you to relocate is often difficult if the other parent has been actively involved in the child’s life prior to and since separation. Ultimately the Court is bound by what it considers to be in the child’s best interests.

Kidnapping, Airport Watch List and Recovery Orders

If there is a possibility of, or threat of, a child being removed from Australia, the Court may order that the passport of the child and of any other person concerned be delivered to the Court. It may also order that a child be restrained from removal from Australia and that the child’s name be placed on the Australian Federal Police Airport Watch List.

Property Issues in Family Law

The Family Law Courts exercises a five-step process in determining how the property is divided between the parties:

It is essential that each party provides full and frank disclosure of all of their financial information to the other party prior to the commencement of any legal action and failure to do so can result in the failing party paying the legal costs of the other side.

The second step is to assess the contributions made by the parties. Factors to take into account when assessing the contributions are:

The court has discretionary power in determining whether particular contributions should hold more weight over other factors however, in circumstances where the husband goes off to work and the wife stays home to raise the kids, the court generally considers the contributions to the asset pool to be equal.

The third step is determining the future needs of the parties such as:

The final step for the Court is to determine whether it is just and equitable to make an order in all the circumstances of the case (section 79(2)).

Divorce

A person (or both parties jointly) may apply for a divorce in the Family Law Courts if either party to the marriage is an Australian citizen, domiciled in Australia and is a resident for one year immediately preceding the filing of the application for divorce.

The main legal ground for divorce is the irretrievable breakdown of marriage. This is proven by showing that the parties have separated and lived separately and apart for a period of at least 12 months immediately preceding the date of filing the application or an aggregate period of 12 months with only one resumption of cohabitation (not exceeding three months) within that period. Cohabitation is defined as living together as a couple. Living together as a couple is often evidenced by joint bills, cooking and cleaning for each other, the existence of physical/emotional intimacy and other factors.   The court must be satisfied that the parties have been separated for 12 months and that it is unlikely that the parties will resume cohabitation.

An application for divorce cannot be filed within two years of the marriage without permission from the Court unless a Family Dispute Resolution certificate is filed with the application; however, there is an exemption for this under certain circumstances.

Application and Minutes of Consent Orders

Separating parties looking to have their agreement regarding children and/or property issues formally recognised by the Family Law Courts can make an Application for Consent Orders.

You should only enter into Consent Orders freely.

Often during separation, one party will attempt to unduly influence the other. If you are not happy with the proposed settlement, do not sign it. Consent Orders deal with the transfer of the matrimonial (and other) property, splitting superannuation, transferring car registration, as well as more important factors such as parental responsibility, who the children are to live with, school holiday contact etc. Therefore, it is important to consult a lawyer to help guide you through the process and draft the necessary documentation for you.

The Application and/or Minutes are sent to the Court for the formal making of Orders in those terms. Until set aside by another Court Order, a Consent Order is just as enforceable in the same way as an adjudicated outcome by a Court. In other words, it still carries the same weight as if you have fought for that Order in court. The major advantage is the convenience of not having to personally attend court and the savings in legal fees.

Binding Financial Agreements

The Family Law Act provides for parties to a marriage or de facto relationship to enter into a binding legal agreement about the financial arrangements that will be in effect in the unfortunate event that the relationship breaks down. This agreement can be entered into before marriage, during the marriage or after separation. Financial Agreements can be viewed as a planning tool to assist in securing the parties financial future and to conclude matters in ways that they would have not contemplated prior to preparing the Financial Agreement.

Financial agreements can cover circumstances where it’s likely a Court will refuse to make property consent Orders because the agreement reached between parties is not just and equitable. It can also assist in achieving a division of superannuation which is suitable to the parties needs and not in the manner prescribed by the Family Law Act, where there is no remedy or adequate remedy provided by the Family Law Act and where the form for the Application for Consent Orders does not reflect the parties financial circumstances (such as assets with third parties).

Recent cases in the higher courts suggest that the reliability of binding financial agreements is now not as solid as previously thought.   Careful planning and significant consultation with lawyers by parties is a must.

A BFA can cover all of the property of the parties. For example, the BFA might specify what happens to all assets (owned prior to the relationship and acquired during the relationship) in the event that separation occurs. On the other hand, the agreement may only be relevant to what is to happen to a particular asset e.g. if one party owned a property prior to the relationship commencing, the BFA might state that the other party has no claim over the property in the event that separation occurs.  A BFA can also address the issue of spousal maintenance after separation.

There is a set criteria set out in the Family Law Act for the agreement to be enforceable and binding:

If these requirements are not fulfilled, the BFA will be set aside by a Court. As stated previously, notwithstanding the above factors being satisfied, Courts are increasingly overturning binding financial agreements for equitable reasons and therefore it is imperative you consult a lawyer before entering into one.