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An Introductory Overview of the Family Law Act

Firstly, we would like to welcome you to our blog.

Whether you are looking for more information about bankruptcy and family law, contemplating bankruptcy as an option for you or you are currently in bankruptcy while dealing with family law issues, our aim is to provide you with information that is easy to understand and assist you to navigate your situation.

We also understand that the thought and contemplation of divorce and separation can be incredibly stressful and troubling for you. Family law in Australia is a complex area of the law and often can be difficult to understand. Our aim in this blog is to cover the basics, to give you an overview of family law and cover some important information you need to know.

Family law in Australia

Family law in Australia is divided into three separate streams:

  1. Divorce (and separation for de facto couples);
  2. Property matters; and
  3. Parenting matters.

 

Each stream presents it’s own challenges and we will go through each below.

Divorce and separation

In Australia, people tend to describe their family law matter as a ‘divorce’ in its entirety. In practice, divorce is a completely separate issue to be dealt with.

A divorce is the official recognition of the finalisation of a marriage.

To apply for a divorce, you need to file an application with the Federal Circuit Court of Australia. In most cases, a Registrar of the Court hears your application without your need for attendance. If you have children under the age of 18, you are required to attend the divorce hearing.

For the Court to grant your application for a divorce order, you must satisfy the court of the following:

  1. That the marriage has broken down irretrievably. This is evidenced by separation for 12 months prior to the filing of your divorce application;
  2. That there was a true marriage. This is evidenced by attaching your marriage certificate to the divorce application;
  3. That service has been affected on your former spouse. This is a complex issue and is where most divorces become complex. The court needs to know that if you are making a sole application for divorce (meaning by yourself, as opposed to a joint application with your former spouse), the divorce application must have been validly served on your former spouse;
  4. That if you and your former spouse have children, that proper arrangements have been made for their care and wellbeing; and
  5. That you, your spouse, or both of you are currently living in Australia.

QUICK TIP: if you are planning to get remarried and urgently require a divorce, there are things your lawyer can do to assist you to obtain a divorce order expeditiously.

Every divorce is different and there are complexities that can arise at any given time. We highly recommend you obtain advice as to your circumstances so your lawyer can help you craft the best strategy to obtain your divorce order.

Property matters

In Australia, the division of property following the breakdown of a relationship or marriage is called a ‘property settlement’.

The first step to resolving your property settlement is an investigation process to identify the assets, liabilities and financial resources of your relationship.

A financial resource is something that is available to you but you cannot access it immediately. This may be an interest in a trust for which you do not have control, or an expected inheritance that is due to you in the not too distant future.

This discovery process can often be complex depending on the financial makeup of your family. It will often be the case that companies, trusts and property will need to be valued to accurately identify their value for the purpose of your property settlement.

Once the balance sheet is complete, the second step is to look at the contributions to the conservation, acquisition and improvement of the assets, liabilities and financial resources of your relationship.

Contributions are looked at in three stages, initial (what you bring to the relationship – this is particularly important in short relationships), during the relationship (what happened during the relationship) and post separation (what happened following separation).

Thirdly, we look to the future needs of both you and your former spouse. These include things such as the care of children, any long term significant health issues, age and capacity to obtain gainful employment.

Fourthly, we evaluate the proposed division of property to assess whether it is “just and equitable” in all the circumstances.

There are three ways to resolve your property settlement:

  1. By agreement and the formation of consent orders (this is an administrative process whereby court documents are completed and lodged with the court without the need to formally attend court);
  2. By agreement and the formation of a financial agreement (this is an out-of-court agreement which creates contractual obligations on you and your former spouse for the division of your property); and
  3. By order of a court.

 

QUICK TIP: if you believe your former partner is disposing of assets or wasting money away, you need to speak to a lawyer urgently to seek relief from a court to prevent this wastage.

QUICK TIP: if you believe that your former partner is transferring funds overseas or trying to remove money from bank accounts or behaviour of that nature, speak to a lawyer to obtain urgent advice.

Parenting matters

The law as it applies to parenting matters in Australia is largely settled. The complexities in parenting matters arise as to specific issues that apply to each family trying to work out their parenting arrangements.

At the core of it, there is a pathway that is followed to determine what arrangements are in the best interests of your children. This is called the ‘paramount consideration’, when the court makes an order as to your children, they must be satisfied that the order(s) are in the best interests of the children.

The first step is to work out whether both parents will have equal shared parental responsibility. This concept applies to major long-term decisions for the children including schooling and health. In most cases, both parents can work together and confer on these decisions and it is appropriate for the court to make such an order. In some cases, where parents are separated by long distances, it may be more practical to accord one parent specific aspects of parental responsibility, such as schooling choices and the like.

There may be other reasons for equal shared parental responsibility being inappropriate, including instances where there is family violence or risk of the children being brought to harm.

QUICK TIP: the legislation confirms that it is in the child’s best interest to have a meaningful relationship with both parents, but it is also in the child’s best interest to be protected from harm. If there are allegations of family violence or risk, this will always cause a court to act cautiously and protect the children from any risk, which may impact on the child’s relationship with either parent.

Once a decision is made about parental responsibility, we then turn to what the arrangements will be for the children’s time with each parent. The first port of call here is to assess whether equal time (week on, week off for example) is appropriate.

QUICK TIP: focus on the practicality of the arrangements. If you live 2 hours away from the other parent, it may not be reasonably practical for an equal time arrangement to work due to travel between school and both homes.

To work out whether or not this is appropriate, this proposal is evaluated against a set of criteria set out in the legislation. These include:

  1. The nature of the children’s relationship with each parent;
  2. The extent to which each parent has taken or failed to take the opportunity to participate in long term decisions affecting the welfare of the children, spend time with the child or communicate with the child;
  3. The extent to which each parent has fulfilled or failed to fulfil their obligations to maintain the child;
  4. The likely affect of changing the child’s existing circumstances on the child;
  5. The practicality of the proposed arrangements;
  6. The capacity of each parent to provide for the child’s emotional and intellectual needs;
  7. The maturity, sex, lifestyle and background of the child and the parents respectively;
  8. If the child is Aboriginal or a Torres Straight Islander child, consideration as to the child’s right to enjoy their culture;
  9. Any family violence; and
  10. Any other matter considered relevant.

If once working through the criteria above, it appears that an equal time arrangement is neither practical nor appropriate for the children, the next port of call is whether significant and substantial time meets the children’s best interests.

An example of significant and substantial time is where a child lives with one parent and spends time with the other parent each alternate weekend and one overnight during the off week.

This is again evaluated against the criteria set out above.

QUICK TIP: When you are thinking about what the appropriate arrangements should be for your children following separation, the following issues are key to determining what the arrangements should be:

  1. Who your children are going to live with (either you or your former spouse);
  2. What time the children are going spend time with the other parent;
  3. Are you going to share parental responsibility for making long term and significant decisions about your children?
  4. How are your children going to communicate with the other parent while they are in your care?
  5. How disputes about your children will be resolved, including possible mediation whether assisted by lawyers or not; and
  6. Any aspect of the care, welfare and development of your children that is specific to your children, this may include health issues or learning issues that need to be considered so that the arrangements you agree with on are in the best interests of your children.

There are three ways to resolve parenting issues:

  1. By agreement and the formation of a parenting plan. This is useful for a number of reasons, but it is important to know that a parenting plan is not legally enforceable but it does provide flexibility to easily change and vary parenting arrangements;
  2. By agreement and the formation of consent orders (this is an administrative process whereby court documents are completed and lodged with the court without the need to formally attend court);
  3. By order of a court.

QUICK TIP: if you believe your children are at risk or being exposed to behaviour that could bring them into risk you should speak to a lawyer immediately and seek urgent advice as to what should happen next.

Next steps

We note that the content of this article is not intended to provide legal advice. It is general information only. You should not rely on it as legal advice. If you would like to discuss anything of interest or concern to you, please contact us. Nothing arising from the content of this article is intended to create a legal relationship between us and any reader. If you would like to obtain legal advice from Tim Nicholls on your family law circumstances or to instruct him to act in your family law proceedings, call Understanding Bankruptcy and we will organise for Tim Nicholls to make contact with you.

If you would like more information or have questions on Bankruptcy and Family Law please call Understanding Bankruptcy on 1300 764 197 or email hello@understandingbankruptcy.com.au