When relationships are fractured, it is usually the beginning of a traumatic process that involves a number of different practical, legal and social issues for not only you, but your whole family.
Moving through family transition with peace and integrity
Sometimes you find yourself in a situation you never wanted to be in. Perhaps you have decided that you can’t live with the way things are anymore, or perhaps your partner has shared the news that your family unit is going to change. One, or both of you, want to separate.
When spouses or partners decide to separate, there are lots of things to work out. There are legal issues to be worked through, practical arrangements to be made, and relationships to deal with. Decisions made in one area can affect every area of your life.
In the midst of the grief and shock of separation, many people are trying to –
It’s our conviction that the legal issues that arise from separation are only one part of their bigger picture. So in response we have developed a model of care to meet people’s needs as their family moves through this period of transition.
Our separation lawyers (divorce lawyers) know that family separation is difficult. And it becomes more complex if there are children and substantial amount of assets are involved.
The main family law question we receive:
Family law can be quite complex and the experiences that different couples go through are unique.
Whilst it is important to surround yourself with the support of friends and family at this time, the specialized knowledge and experience of our family law team can save you the headache of an untimely or poorly informed decision.
When faced with a parenting dispute, separation or relationship breakdown, a couple will need to navigate potential issues with respect to decision-making for the children of their relationship. The types of issues that can arise might include (without limitation):
The Family Law Act refers to the concept of decision making for children as “parental responsibility”.
Whilst most parents are able to reach an agreement on parenting matters, there is the chance that agreement may not be reached and that the circumstances may require dispute resolution through Court processes. This article highlights the considerations the Court will have in resolving parenting disputes, and how parents might find a path forward without turning to litigation.
Starting Point – Presumption of Equal Shared Parental Responsibility
The law in Australia considers the child’s best interests as being of the utmost importance when dealing with Parenting Arrangements, and that it is normally in the interests of the child(ren) that they have a meaningful relationship with both parents. The amendments made to the Family Law Act 1975 (Cth) in 2006 reinforce this view.
When considering any parenting matter that involves decision-making on behalf of children, the Court MUST start by presuming that it is best for the children that both parents have equal shared parental responsibility – that both parents share the decision-making responsibilities and duties of raising their child equally. This means that both parents must share information with each other and make decisions together in relation to important life decisions for the child – such as the child’s education, religion, and name.
The presumption is especially important in cases where the parents cannot mutually agree on who will make the decisions for their children. However, the presumption is rebuttable, and the Court may use its discretion in deciding that it is not in the best interests of a child for both parents to make decisions together. This may arise in a range of circumstances – for example, where one parent has engaged in acts of domestic violence or child abuse against the child.
Sometimes a Court may order that a parent has sole parental responsibility, or that they have sole parental responsibility in relation to certain aspects of the child’s life (such as health or education). If a parent has sole parental responsibility, a joint decision is not required.
If equal shared parental responsibility applies, the Court must consider making an order for the child to spend equal time with both parents. The Court will consider what is in the child’s best interests, and what is reasonably practicable in the circumstances.
The Court must consider how an equal time arrangement will impact on the child’s wellbeing. In these considerations, it is the child’s best interests that are paramount and prioritised over their parents’ interests. Equal time arrangements often work best where there is a high degree of cooperation between parents, good communication, and where the parents live in close proximity to each other.
If equal time arrangements are not in the child’s best interests, the Court will consider whether a significant and substantial time arrangement is a more appropriate path forward. These arrangements allow both parents involvement in the child’s daily routine and occasions of significance for both the child and the parent (e.g. birthdays, Fathers’/Mothers’ Days), across a mixture of both weekdays and weekends.
However, despite it being in the best interests for both parents to have equal shared responsibility and a shared time arrangement with the child, the court might choose not to order a shared time arrangement where such an arrangement would not be reasonably practicable. This might occur in situations where the separated parents live significant distances from each other and/or lack the finances to facilitate travel between each parent’s residence.
Resolutions Outside of Court
As previously mentioned, the normal situation often finds parents being able to resolve their parenting disputes themselves without court intervention. The Family Law Act 1975 (Cth) recognises two options that can help formalise such agreements.
1. Parenting Plan
A parenting plan is a document that is dated and signed by both parties and details an informal parenting arrangement. This document aims to provide written, shared solutions to the questions posed earlier in this article to provide the parties with clarity and certainty. However, parenting plans are unenforceable by courts, but will be persuasive if the matter ever goes to litigation.
2. Consent Orders
Consent orders are enforceable by courts, with penalties or potentially jailtime incurred upon breach. Consent orders are an agreement reached by the parents that has been filed in the Court (alongside other documents) that then becomes a Court Order.
Family law property division is a difficult time for any separating parties.
It is not the case that most parties to a relationship are able to split the money in their bank account, exit a rental agreement and leave with no other ties. Once the separation has occurred, it is important to deal with dividing property and liabilities and finalising your property settlement. We understand that this can be a stressful time, and we work hard to make sure that your matter is dealt with sensitively and professionally.
Most spouses have joint bank accounts, jointly owned vehicles, houses, and other assets, joint liabilities under loans and mortgages, and a variety of intertwined financial arrangements in place. Where there are self managed super funds, family trusts and businesses the situation can be even more complicated. It’s important to get good advice about property matters and from lawyers with an understanding of commercial and business structures.
Our family law team work closely with senior commercial and property lawyers in the firm to make sure that any property settlement arrangements not only resolve the family law matters, but also are business savvy.
Settling property issues should be given some priority, because Courts take into account assets that you currently have as well as what assets there were at separation. Courts don’t necessarily recognise informal agreements and may ignore them altogether so it’s important to get advice to make sure that your agreement will finalise your matter.
If the Court is satisfied that it is just and equitable to make an order in relation to the property of the parties, it works through several steps to determine the property division:
Given that “property” may often include business assets, trust assets (whether that be a Discretionary / Family Trust or a Unit Trust), and shares we have a Family Law team that includes experienced Commercial Lawyers who are able to assist in dealing with complex corporate, business and trust structures.
We recognise the value of settling matters early to save you costs and stress. We can assist in negotiating a suitable property settlement, preparing the documents to do with the settlement, and any conveyances and commercial and business structuring that is required because of the settlement. Of course, if your matter can’t be settled by negotiation or mediation, we can also represent you in Court.
Making the very personal decision to divorce can be very difficult for many people. Not all relationship breakdowns must result in divorce and it is important that you are comfortable with the decision you have reached and understand that the decision is yours to make.
At Corney & Lind we aim to guide you through the process one step at a time.
A. Connection to Australia
To be eligible, one or both of you must have one of the following jurisdictional connections to Australia:
You can still apply for a divorce even if you got married overseas, as long as you (or your spouse) meet one of the above criteria.
Additionally, you must have been separated from your spouse for a minimum of 12 months. This is required to help prove that there is no reasonable likelihood of resuming married life. Whilst you must prove your marriage cannot be resurrected, it is not necessary to prove someone is at fault.
If you have periods of reconciliation/cohabitation that last longer than 3 months during the 12 month period, the time spent apart prior to reconciling is not considered part of your 12 month separation. If you have decided after a period of reconciliation that lasted longer than 3 months that you still want a divorce, the clock will start running from the time you separate again.
If periods of cohabitation last less than 3 months you may be able to join prior periods of separation and periods after cohabitation together to fulfill the required 12 months separation period.
Domestic and family violence comes in many forms and is not limited to physical violence. Until recently it was commonly accepted that domestic violence was limited instances of physical or sexual abuse and or threatening behaviour, however it is important to understand that some forms of domestic violence do not ever leave a physical mark. Domestic violence may also include emotional, psychological or financial/economic abuse and these too have serious and lasting effects on a person’s life and well being.
The Domestic and Family Violence Protection Act 2012 defines domestic violence as any action, conduct or behaviour of a person in a relevant relationship that “controls or dominates the second person and causes the second person to fear for the second person’s safety or wellbeing” or the wellbeing of another.
The Act gives some specific examples of common behaviours that would constitute controlling or dominating behaviour and thus warrant protection under the Act. Such domestically violent behaviours may include:
Domestic violence can be as varied and unique as a relationship, but the one thing that all domestically violent relationships have in common is the need for one party to exert undue control and dominance over another in one form or another. This may be overt or subtle.
Under the Act you may apply for a Domestic Violence Protection Order if you are experiencing or at risk of experiencing domestic violence and are in a “relevant relationship”. Examples of relevant relationships under the Act include:
If you are a person in a relevant relationship like one named above and you have or are at risk of suffering domestic violence or your children have, or are at risk of suffering, have been exposed to or at risk of being exposed to domestic violence, you may be able to make an application for a Domestic Violence Protection Order. The Court may make Temporary Orders or Final longer term Orders.
Domestic Violence Protection Orders are issued by the Magistrates Court. There are a few ways that you may seek an order. You may make the application yourself, you may contact the police and they may make the application for you or you may have your lawyer make the application on your behalf. If the Protection Order is not urgent it is a good idea to seek legal advice before making the application to ensure that you have taken appropriate and necessary steps to protect yourself and your children and to ensure that you are accessing the right process.
The general application process for final Orders requires that the respondent be notified of your application before the Order is made and given the opportunity to respond. There will then be a court date that you attend and the Court will decide your application.
If the Protection Order is urgent (and you believe that your safety is currently at risk and the normal process will not be sufficient to provide you adequate protection), you may make an application for a Temporary Protection Order. When you are seeking an urgent Temporary Protection Order, you sometimes make your application and attend Court before the respondent is notified. Remember that this is only temporary order and you will be given a second court date to attend and your application for ongoing protection will be assessed then and the respondent given the opportunity to agree to the Order being made or respond, prior to the Order being made.
Domestic Violence Applications are treated very seriously by the Courts in Australia. Once an Order is in place (temporary or final), the terms set down in it must be followed. As explained above, the terms of the Order ordinarily places limits on the respondent’s behaviour. If the terms of the Order are not followed, this will result in breach of the Order and the police can charge the respondent with a criminal offence. A criminal offence carries severe penalties, which can include a term of imprisonment. The behaviours set out in the terms of the Order are not ordinarily considered to be criminal behaviour, however, because they are contained within the Order issued by a Court, a breach of those terms may result in criminal sanctions.
There are circumstances where simply agreeing and consenting the Order may be the best approach, even if you disagree with the allegations contained within the Order. This is called “consenting without admission”. Even if you agree with the Order however, it is a good idea to seek legal advice about the terms of the Order. It is important that you are represented and adequately provided the opportunity for input about the terms that are included in the Order.
However, there are also circumstances when you should disagree with the Order being made. You may be pressured to concede, but if you disagree with the Order, you will have to go to the Magistrate Court and contest the Order. The Court will then set down a hearing date (which can sometimes be months later) but you will need time to prepare your case. You can then make important choices about what evidence and documents, such as photographs and doctors’ reports, you are going to put before the Court and who you should subpoena as witnesses (if any) in order to support your story. It may also be necessary to put your side of the story into an affidavit (which is a sworn statement).
Ultimately, the Court will decide on whether or not to make an Order and on what terms once it has heard all the evidence. It is strongly recommended you seek legal advice before opposing an Order.
If a Domestic Violence Protection Order, whether temporary or a “final long term”, is made the Court will Order that:
The Court can also make extra conditions in circumstances that warrant it including Orders that restrict them from coming within a certain distance of another person or a particular location, contacting the person or publishing comments about the person.
In addition to section 28 discussed above which prohibits acts of “associated domestic violence” the Court may also name, “in a domestic violence order, a child of the aggrieved, or a child who usually lives with the aggrieved if the court is satisfied that naming the child in the order is necessary or desirable to protect the child from:
This means that if your children have seen, heard or in some way witnessed or are likely to witness domestic violence they may be named in the Protection Order with you.
If you are pregnant it is also possible under the Act to have the Domestic Violence Order apply to your child when they are born whether or not the respondent is the Father of your unborn child.
Naming people involved in domestic violence has become an increasing trend as social awareness increases around the seriousness of domestic violence and its impact on victims, their families and the wider community.
This trend has been fueled by social media and the speed at which information can be communicated and published to wide cross sections of the community with a click of a button.
However, before you take it upon yourself to hold someone accountable for wrongs you believe have been committed, consider this:
Section 159 makes it a criminal offence to publish;
This means, despite any feelings you may have to the contrary, you are prohibited by law from sending, communicating, posting or causing material to be sent, communicated or posted to any other person that relates to domestic violence proceedings. This section specifically relates to material that contains evidence used in Court or that identifies any of the parties to the proceedings (including the Respondent).
The following are examples of the types of conduct that are prohibited by the Act. You may not communicate material that is likely to identify a party to the proceedings or that contains evidence used in the proceedings by;
A Domestic Violence Protection Order is not a criminal conviction against the alleged perpetrator it is a Civil Order. However, Under the Act, the conduct mentioned above is a criminal offence and is punishable by a maximum of 100 penalty units or 2 years imprisonment.
Child Support Agreements are a useful tool for parents to use where there is agreement as to the amount of child support payable.
Child Support Agreements bypass the use of the Child Support formula to allow parents to agree on terms of payment.
There are two (2) ways in which a Child Support Agreement can be formulated:-
Binding Child Support Agreements are written agreements for child support signed by both parents after getting independent legal advice about entering into or ending an agreement.
This legal advice must be provided by a legal practitioner who has been admitted by the Supreme Court of a State or Territory of the Commonwealth of Australia and holds a current practising certificate.
The legal practitioner must provide a statement they have provided the parent with independent legal advice as to the effect of the agreement on their rights and the advantages and disadvantages of entering into such an agreement.
The agreement must include an acknowledgement of this advice.
A Binding Child Support Agreement can be made and accepted, even if a child support assessment has not been made. The agreement can be made for any amount that both parents agree to.
Limited Child Support Agreements are formal agreements for child support that are in writing and signed by both parents.
Legal advice is not needed before entering into a Limited Child Support Agreement.
Before the Department of Human Services (Child Support) (“the Department”) can accept a Limited Child Support Agreement:
Importantly, a Limited Child Support Agreement can only be in place for a maximum of three (3) years. After this time, either parent can terminate the agreement.
A Child Support Agreement can include lump sum payments including transfer of property, to be credited as child support, instead of monthly cash or electronic payments.
A child support assessment must be in place for lump sum payment agreements.
The lump sum must be equal to or greater than the annual child support rate under that assessment.
The lump sum will be credited at the rate of 100% of the child support payable, or at a lesser rate if specified in the agreement.
The remaining lump sum will be indexed every year by the Consumer Price Index as published by the Australian Bureau of Statistics (“the ABS”).
When a Child Support Agreement is accepted, the Department will make a provisional notional assessment of how much child support would be payable if an agreement was not in place.
The provisional notional assessment is given to both parents to check that their circumstances are properly reflected.
Parents have fourteen (14) days from when it is issued to contact the Department and update their details, if necessary.
The provisional notional assessment becomes a notional assessment fourteen (14) days after it is issued or when all requests to vary details have been finalised.
The notional assessment is updated:
The child support legislation provides that a child support agreement may be terminated by:-
Parties to a Child Support Agreement are not able to vary the terms of the agreement.
A new Child Support Agreement must be entered into.
If either party are able to establish the following grounds, a Court may set aside a Child Support Agreement:
A Binding Financial Agreement (sometimes known as a “pre-nup”) is a private agreement that couples are able to enter into to deal with financial and property matters in the event of a relationship breakdown. These agreements could be made in accordance with Part VIIIA or Part VIIIAB of the Family Law Act 1975 (Cth).
Amendments to the Act made on 1 March 2009 now allow for all couples (whether they are married, de facto or same sex) to make a Binding Financial Agreement.
If entered into correctly, a Financial Agreement will usually prevent either party to the relationship from making an Application to the Court for property settlement.
For Financial Agreements (or pre-nup) entered into before or during a relationship, it allows the parties of the relationship to determine how to divide their property and financial resources if they separate in the future.
Financial Agreements entered into after a relationship has ended, enables parties one method of dealing with their present problems regarding property. Another option might be to consider Consent Orders.
Regardless of the timing of the Financial Agreement, it provides a chance at resolution of property issues without Court Proceedings.
In certain circumstances a Financial Agreement can be set aside by the Court. Court intervention is sought only when one party alleges that the Financial Agreement is not binding on them. Circumstances where this may arise include where the agreement was obtained by fraud (such as non-disclosure of a material matter) or under a party’s duress, or where the Financial Agreement has not complied with the requirements of the Family Law Act 1975 (Cth).
A Financial Agreement can be made either:
Financial Agreements allow the parties to determine how the property and financial resources of either or both parties will be dealt with in the event of separation and can also set out maintenance rights of either party in the event of separation.
A de facto couple or de facto relationship is a relationship between two people that are not legally married to each other, not related by family and have a relationship as a couple living together on a genuine domestic basis. A de facto couple can be between two people of different sex or of the same sex. the relationship has to be mutually exclusive and the following considerations apply:
Pursuant to Sections 90G and 90UJ of the Act, a Financial Agreement will be generally be binding upon the parties if, and only if:
Other than where this Agreement is between couples who have already divorced, a Separation Declaration may be needed, in order to demonstrate that the parties separated without the reasonable likelihood of cohabitation being resumed. This declaration is required to be signed by the parties once separation occurs. Only then would the provisions in the Binding Financial Agreement (and/or prenuptial Agreement) be triggered.
BFA’s are costly documents because parties are being bound to financial decisions in the future circumventing a Court process to decide on the parties behalf.
The documents in nature are intended to be binding and need to be fully considered to factor in future cost and/or provision should circumstances change.
BFA’s are well regulated by the Family Law Act, which seeks to have conditions fulfilled in order for the BFA to be enforced.
If a BFA is found to be ambiguous, procured by misrepresentation, fraudulently obtained or non-binding, the Agreement can be set aside by a Court and the lawyer penalized for not fulfilling their legal obligation.
Clients who are ‘put-off’ by the high cost of BFA’s often seek legal service providers that will draft a BFA at a minimum cost. The adage that “you get what you pay for” has proven correct in this sense. Case law has proven that BFA’s are regularly being set aside for poor drafting, lack of compliance, failure to disclose. We summarise a few court decisions showing BFA’s being set aside for the following reasons:
Our family law team regularly represent international family law clients, whether they reside in or outside of Australia. We have represented clients in matters which go beyond our borders and often across the world.
We have and continue to develop networks with family law practitioners around the globe as we seek to serve our clients well.
James Tan, Director – has worked on the following family law matters with an international flair. Some of the cases he has worked on, include:
|Country (Jurisdiction)||Description of International Family Law Matter|
|England||International Wills and Probate proceedings.|
|Indonesia||Applying for a Divorce where the other party resided in a remote location in Indonesia.|
|New Zealand||Applying for an Application under the Hague Convention on the Civil Aspects of International Child Abduction for the recovery of a child allegedly wrongfully removed.
Seeking to overturn New Zealand Orders from Australia in an International Relocation Parenting Case involving serious allegations of abuse of the child.
Dispute in relation to Spousal Maintenance including consideration of the Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance.
|United States of America||Resisting an Application under the Hague Convention on the Civil Aspects of International Child Abduction for the recovery of a child allegedly wrongfully retained where the child has special needs.
International Property Settlement, including dealing with 401K issues and enforcement of Child Support across jurisdictions, including consideration of the Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance.
|France||Whether Australia had jurisdiction to deal with matrimonial property where a “pre-nup” was entered into in France under the Hague Convention on the Law Applicable to Matrimonial Property Regimes 1978|
James also spent a month admitted as a lawyer in Fiji and dealt with Family Law matters in that country.
We are here to help you move through family transition in a holistic way. Whichever legal service you need assistance in, we will listen with care and work to understand your situation. Only then can we develop an effective strategy to resolve your matter with minimum cost and efficient time.
We seek to deliver Just, Redemptive Outcomes®