Moving signifies a fresh start for a lot of people. While it is within your constitutional right as an Australian citizen to travel free and unencumbered, it is not as straightforward if you want to take your children with you. As outlined in our previous article, the law requires that the best interests of the children are to be at the forefront of any decision making. Relocating with your children is achievable however the courts can be quite strict in its interpretation of this area of family law, therefore it is advisable that you seek sound legal advice on how best to proceed. 

Relocation

Moving children away from their current community or location is known as relocation. The relocation may be to another town, another state, or another country. 

Reasons why a parent might want (or need) to relocate:

• They have found work elsewhere.
• They have a new partner and would like to move to be with them.
• The other parent is not involved in child rearing and the new partner may be more supportive emotionally and/or financially as step parents.
• They would like to be closer to other family or friends that may provide a safe and healthy support network.
• They would like to be closer to better facilities, infrastructure, or schools for the children.

The easiest way to agree on relocation arrangements is to have an open and honest discussion with the other parent. If an agreement is reached, you should include the new living arrangements in your parenting plan or parenting order. However if both parents do not consent or cannot agree on the relocation, you can seek assistance through Family Dispute Resolution. In the event an agreement cannot be reached amicably, an application can be made to the court for determination. Contact us for help on how best to prepare for these proceedings..

It is important to once again keep in mind that when it comes to children and the law, courts will make its decision based on section 60CA of the Family Law Act 1975 – what is in the best interest of the child.

 

Parenting Orders

You will recall in our article on Child Custody in Australia, unless established by a parenting order or parenting agreement, it is assumed that both parents will have shared parental responsibility.

Parenting orders are a set of orders made by a court about parenting arrangements for a child if parents cannot come to an agreement amicably and require intervention of the court. Orders can be made by consent and not necessarily restricted to when parties can’t reach an agreement.

A parenting order may deal with one or more of the following:

• whom the child/children will live with;
• how much time the child/children will spend with each parent and with other people (such as grandparents);
• the allocation of parental responsibility;
• how the child/children will communicate with a parent they do not live with, or other people, and;
• any aspect of the care, welfare, or development of the child/children including;

And relevantly:

• Whether the relocation of children is granted.

 

When Will the Court Grant Permission?

Consent of both parents is the most desirable approach as it does not expose the children and the parties to adversarial legal proceedings which can be emotionally stressful and financially taxing. The court is interested in parental cooperation and whether the relocation will impact the ability of the children to sustain a meaningful relationship with both parents.

Some factors that the courts will consider include:

• Where the new location is.
• How will the new location affect current parenting orders?
• Whether the children are interested in having meaningful relationships with both parents.
• What kind of relationship the children have with each parent.
• The children’s views generally on where they might want to live.
• If there is any risk of the children experiencing any physical or psychological harm.
• How the changes might affect the children’s life and day to day living.
• Lifestyle factors of both parents and children.
• How far away the children will be from the other parent.
• Whether there is a history of family violence or abuse.
• Whether the children have other meaningful relationships with other family members (such as grandparents).

What may also be relevant is: 

• Whether there is a family network in the new location and whether there is an existing network in the original location.
• How long the parents and the children have been living in the current arrangement.
• Whether there are job prospects in the new location. 
• Financial considerations.
• What the children’s wishes are.
• Whether the relocation is for nefarious reasons, intended to cause difficulty for the other parent on purpose.

These are only guiding considerations taken by the court however it is interesting to note that most of these points relate to the wants and needs of the children and not the parents. In the case of U v U (2002) 211 CLR 238 the courts maintained that while freedom of movement is a constitutional right for adults in Australia, this right does not surpass that of the children (in other words, the right of the child is not subordinate to the right to freedom of movement for the adult).

As mentioned in our previous articles, the principle of the best interest of the child covers many facets of a child’s life. It makes a firm assertion that it is integral for children to have a meaningful relationship with both parents. This idea is applied in the case of MMR v GR (2010) 240 CLR 461 and has been cited by other cases frequently. According to this case, the Family Law Act 1975:

“obliges the court to consider both the question of whether it is in the best interests of the child to spend equal time with each of the parents and the question of whether it is reasonably practicable that the child spend equal time with each of them”. 

Case Study: Cahan & Kafka [2019] FCCA 2421

This case involved a mother wanting to relocate herself and her child from Melbourne to Sydney following the breakdown of her marriage. Both parents and the child were living in Melbourne at the time of the application. 

The mother submitted that the move was driven by a lucrative job offer that would provide a substantial financial benefit for herself and her child. She further submitted that it would be unsustainable for her to fly back and forth from Melbourne to Sydney for the new job and in addition to this, had also started a new relationship with someone in Sydney. 

The father, on the other hand, submitted that the travel would also be unsustainable for him as the cost of the flights and accommodation would be great. He further submitted that due to his age, and the fact that he had no friends or family in Sydney, relocation meant that he would have to start his life all over again.

Having weighed all the available evidence before it, the court ultimately decided that it was unfair to expect the father to relocate. It found that the operation of the parenting arrangement would result in the child losing the ability to have a meaningful relationship with her father, and so denied the relocation order.

For the full decision click here.

Holidays and Overseas Travel

You do not need express permission or a new court order if you wish to travel domestically with your child within Australia (so long as it occurs during agreed care time).

However, to travel overseas with your child you will need either:

• the written consent of the other parent who is a party to the shared parenting order; or 
• a court order specifying the children can leave.

The application to travel internationally should be made through the Federal Circuit Court or in the Family Court if you have existing parenting orders.

It is considered a criminal offence if parents fail to comply with the above requirements. Under section 65Y of the Family Law Act 1975, offenders can face penalties of up to three years in jail.

What Happens if the Other Parent Relocates Without My Permission?

Domestic Abduction 

If one parent does not return the child as per the parenting orders and has not sought prior permission, the other parent can apply to the court for a recovery order. This type of order utilises the assistance of federal and state police officers for safe return of the children and is actioned in accordance with section 67Q of the Family Law Act 1975. A recovery order may authorise the arrest of an offending parent and affect their future parental rights.

International abduction and the Hague Convention

Australia is a party to the Hague Child Abduction Convention. This gives Australians a process of recovery from another country that is also party to this Convention. Article 1 states that the objects of the Convention are:

1. to secure the prompt return of children wrongfully removed to or retained in any Contracting State: and
2. To ensure that the rights of custody and of access under the law of one Contracting State are effectively respected in other contracting States.

In these scenarios, parents should contact the Commonwealth Attorney-General’s Department for assistance.

In situations where the child has not yet left the country, parents can apply to either the Federal Circuit Court or the Family Court to block the initial departure. An application for an Airport Watchlist Order should be made. If this order is granted, airport staff will prevent children from being able to board the place and will alert the authorities of the attempt.

Conclusion

Though the above scenarios are truly unthinkable, unfortunately, they are common occurrences in this particular area of family law. Being a parent is one of the most difficult jobs in the world, having to share that responsibility following separation or divorce can be complicated. If you are reading this and have any concerns about your situation, please reach out to us, and our family law experts can help.

 

Being secure in your finances is an essential step towards starting your new life following divorce or separation.

What is spousal maintenance?

During and following separation or divorce, there may be additional financial responsibilities owed to ex-partners. For married couples, this term is called “spousal maintenance” for de facto couples, this can be referred to as “de facto partner maintenance.” Both terms refer to the same obligation for one party to provide financial assistance to the other party following separation in circumstances where one party cannot financially support themselves.

Oftentimes couples do not turn their minds to the application of this particular area of family law and are left underprepared to either meet this obligation or indeed apply for it. Contact the family law experts at KPL Lawyers for some practical legal advice about separation and spousal maintenance today.

 

 

Who is entitled to claim? The test under Section 72

Under the Family Law Act, a legal or de facto spouse may claim spousal maintenance after separation. To obtain this, a spouse must first prove that they are unable to support themselves financially and that their other spouse has the financial capacity to fulfil that support.

This right to spousal maintenance for married couples is found under Section 72 of the Family Law Act 1975 (the ‘Act’), which states that:

A party to a marriage is liable to maintain the other party, to the extent that the first‑mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:

(a) by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b) by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c) for any other adequate reason;

This section not only sets out this right but also canvases the circumstances whereby one party might be considered unable to support themselves by reason of; having to care for a child under the age of 18, because they have a mental or physical disability, or any other ‘adequate reason’. Adequate reasons may relate to employability, standard of living, language skills, etc.

The right to financial maintenance is similarly guaranteed for de facto couples and is found under Section 90E of the Act. This section deals with the power of the court in maintenance proceedings and states that:

After the breakdown of a de facto relationship, a court may make such orders as it considers proper for the maintenance of one of the parties to the de facto relationship in accordance with this Division.

This section confirms that the court has the same power to make orders for financial maintenance for de facto couples as it does for married couples.

Other factors considered

As mentioned above, the test for determining whether an individual is entitled to claim spousal maintenance is set out under Section 72 of the Family Law Act. Further to this, the courts will consider a range of additional factors found in Section 75(2) of the Act 1975. These factors include but are not strictly limited to the:

• age and state of health of each person;
• relative income, property, and financial resources of each person;
• ability of each party to obtain gainful employment (job skills);
• physical and mental capacity of each person;
• duration of the marriage and whether this has affected earning capacity
• extent to which the maintained party has contributed to the other party’s income, earning capacity, property, and financial resources.

The courts will also consider:

whether either party has the care of a child under the age of 18;
the commitments of each of the parties that are necessary to enable the party to support themselves and a child or another person that the party has a duty to maintain;
the responsibility of either party to support any other person (relatives, parents, adult children with disabilities, etc.).

Consideration will also be given to whether or not an individual is already receiving payments or allowances in the form of governmental assistance (Centrelink benefits, carer’s allowances, pensions, etc.).

The purpose of this financial support is to eliminate any unfair economic effects that separation or divorce may have on an individual. The law recognises that in any given couple or partnership, there may be one spouse that earns a low wage or no wage at all; however, contributes to the relationship in other non-economic ways. Therefore in this regard, the court considers spousal maintenance as an integral part of separation or divorce in the interest of maintaining fairness and equity.

It is important to note that divorce and separation in Australian family law operate under a ‘no-fault’ system. This means that when determinations are made in the family court regarding spousal maintenance, the law does not consider which party was at fault for the relationship’s break-down.

 

How much is paid for spousal maintenance?

The amount to be paid is entirely discretionary (up to the court to decide). There is no strict formulae or calculator that can be utilised to predict a definite dollar amount. As with many decisions relating to family law, the courts will look at the case as a whole and include as many relevant factors into its decision.

Generally speaking; however, the court will first look at the financial needs of the applicant and the financial capacity of the other party and balance its equation from that starting point. As part of the process, both parties will have to submit evidence relating to day to day expenses, earning capacity, along with disclosure of financial information about liabilities and assets. The court will consider all reasonable evidence (including standard of living) in assessing whether spousal maintenance should be paid and how much.

Types of spousal maintenance

Spousal maintenance can be paid:

As a lump sum payment. Under Section 77(A) and Section 90SH of the Act, a lump sum payment may be granted in situations where one party can prove that they are unable to make periodic weekly payments on a continual basis.

On an interim basis. This is an application for payments to be made immediately after the break-down of a relationship before a final ruling or decision is made. This is a temporary order for financial support, while the separation or divorce is being resolved.

On an urgent basis. Under Section 77 of the Act, and as the name suggests, applications for payments made on an urgent basis are for emergencies where time is of the essence.

How to apply and how are decisions made

Decisions relating to spousal maintenance can be dealt with in three ways:

• Mutual agreement between the parties without the need for consent orders.
• Mutual agreement between the parties via consent orders in the Family Law Court.
• Via an Initiating Application – you will need to include an affidavit in support and a financial statement about your current financial circumstances. You will also need to complete Part N of the Financial Statement, which outlines your weekly expenses on items such as groceries, electricity, and maintenance for the home, etc.

It is essential to note when making an application for orders relating to spousal support, that time is of the essence. Married couples only have a period of 12 months from the official date of divorce to file an application for a financial order. For de facto couples, it’s two years from the date of separation. This timeframe is called a limitation period.

After the limitation period has elapsed, you will not be able to make an application for financial support without first seeking leave from the court. The act of seeking leave means to ask the court for permission to proceed despite being outside the timeframes required for the limitation period.

In this scenario, you will need to ask your lawyer to assist in providing the court with a strong argument as to why:

You were late and not able to finalise your financial settlement within timeframes; and
You would suffer financial hardships if you were unable to proceed with your application.

Approving leave is not always guaranteed, so you must speak to a separation lawyer and seek proper family law advice well before the end of the limitation period. KPL lawyers can advise you on the best practice approach to filing a financial order to protect your assets in a fair and just way.

When does spousal maintenance end?

If a person receiving spousal maintenance remarries they are no longer entitled to spousal support payments. In the situation of a de-facto relationship, the court will assess the financial situation of the new couple and make a determination on whether the spouse receiving the benefit can support themselves financially in the new relationship.

Ultimately the purpose of spousal maintenance is to ensure a party is not unfairly disadvantaged by separation or divorce and is usually only applicable until such a time that the indigent party can financially support themselves. Oftentimes the payment of spousal support is set for a period during which the supported spouse can be retrained or reskilled in order to secure employment and become financially independent.

There are situations, however, in which the obligation to pay spousal maintenance is ordered on a permanent or life-long basis.

Need more information?

Navigating the division of finances and the payment of spousal maintenance during and following a separation can be strenuous and difficult to manoeuvre.

Speak to an expert to find out more about the division of property and assets, child custody, or any other topic relating to family law or divorce today.

KPL Lawyers are the experienced family law lawyers you can trust. Contact us here.

 

Your children are your first priority. Having to split time and responsibility for them is one of the most difficult processes to undertake during separation. You want what is best for them but there are many unanswered questions such as – who gets custody? Will they stay with me? How will they be supported? Can they be relocated to another country? 

It can be an understandably distressing time for all parties involved. Having a trusted family law firm on your side can provide you with answers and help ease the process for you and your children.

How Are Decisions Made?

As mentioned in our Guide to Navigating Family Law in Australia, you and your former spouse can amicably decide on the terms of separation by consent order or by court order. A consent order involves coming to an agreement together (with the help of your individual family divorce lawyers) and submitting the agreement to the court. A court order requires decision-making intervention by the court via a judge. You will need to engage the best family law firm that can use its specialised knowledge and expertise to help you secure your rights as a parent.

The Best Interest of the Child

The Family Law Act 1975 (‘the Act’) governs child custody situations in Australia. It is important to note that the child’s best interests are the primary consideration of the court when contemplating decisions relating to the child/children during divorce or separation. 

According to section 60CC of the Act, the law considers:

1. the benefit to the child of having a meaningful relationship with both of the child’s parents; and
2. the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence.

The Act specifies that if the two considerations are at odds, point 2 will have greater value than point 1. The court will always prioritise the child/children’s safety above all else, including the opportunity for a meaningful relationship with the parents.

Other factors that the courts consider when deciding what is in the best interest of the child include:

• What the child/children themselves want;
• The kind of relationship the child/children has with the parents or grandparents;
• How actively each parent has participated in their parenting role in the past;
• Whether the parent has fulfilled their duty to maintain the child/children, financially or otherwise;
• The attitudes of each parent;
• The maturity, sex, lifestyle, background, culture, and traditions of the child/children and the parents; and
• If there is family violence and/or a family violence order.

The Need for Pre-Action Procedure

In most cases, the court will need to see that you and your former spouse have made genuine attempts to resolve your dispute together before going to court. Often, this can be achieved through counselling or mediation. If necessary, the court will direct parties to engage in Family Dispute Resolution Conferences before allowing an application for court orders. This attempt at alternative dispute resolution is mandated to encourage conflict-free solutions without the need for stressful court procedures.

There are, however, situations where you may be exempt from this pre-action procedure; if there is a history of domestic violence or child abuse, or any other occasion where there is a sense of urgency.

In these scenarios, it is imperative that you engage a divorce or separation lawyer to ensure that you and your child/children are protected.

Parenting Arrangements

Family Law courts can make orders regarding parenting arrangements under two main areas:

• parental responsibility; and
• care time.

Parental Responsibility – the Duties and Rights of a Parent

The definition of parental responsibility is enshrined in section 61B of the Family Law Act 1975. It states that:

“Parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.”

What this essentially means is that both parents have an unequivocal duty to protect and care for their child/children. This can include a commitment to:

• safeguard your child/children from harm;
• provide your child/children with food, clothing, and a place to live;
• financially support your child/children;
• offer safety, supervision, and control;
• provide appropriate medical care and attention;
• provide an education.

Both you and your former spouse have an obligation to your child/children until they turn 18 years of age. This duty does not change regardless of the change in relationship with the other parent.

Who Has More of a Say? Equal Shared Parental Responsibility

The courts presume that it is in the best interest of the child for both parents to have an equally shared responsibility. This is assumed (as per Section 61DA of the Act) unless extenuating circumstances demand otherwise. Situations of alleged domestic violence and child abuse are instances where this presumption of shared parental responsibility would not apply. 

Once again, it is the best interest of the child/children that is most important when courts contemplate child custody and parenting arrangements. The court intends to protect the child/children’s well-being, free from harm and exposure to unnecessary conflict.

In a situation where equal parenting is confirmed in agreement, both parents must make a genuine effort to communicate with one another and arrive at a joint resolution when it comes to long-term decisions. When it comes to day-to-day decisions, no consultation is required. 

Examples of long-term decisions include; naming your child/children, selecting a religion, school enrolment or moving countries. Day-to-day decisions include; what your child/children eat for breakfast, what they wear, or how much television they can watch.

It is important to note that equal shared parental responsibility can be given to another adult who is not the biological parent, such as a grandparent or a step-parent.

Care Time – Time Spent Together

Care time refers to the physical time spent with the child/children and requires a different set of considerations. Namely, what is practical and reasonable for the child/children so as not to cause significant disruptions to their lives. Care time is usually divided in ratios, i.e. equal time, substantial and significant time, or regular time. 

Equal shared parental responsibility does not also mean equal time spent together. Care time is either decided by the courts or agreed upon by consent between the parents.

Parenting Orders

If you and your former spouse cannot reach an agreement, you can apply to the court for a range of parenting orders. These are a set of orders made by a court about parenting arrangements for a child. You and the other party may enter into a parenting plan or apply to the court for consent orders. 

A parenting order may deal with one or more of the following:

• whom the child/children will live with;
• how much time the child/children will spend with each parent and with other people (such as grandparents);
• the allocation of parental responsibility;
• how the child/children will communicate with a parent they do not live with, or other people, and;
• any aspect of the care, welfare, or development of the child/children.

The process involved in filing and applying for parenting orders can be strenuous. We can help. Get in touch to arrange a consultation with one of our experienced separation law specialists.

Can My Child be Relocated to Another State or Country?

If there is an order that the child/children are to spend time with both parties, they cannot be relocated, or indeed even travel overseas without consent. If an agreement cannot be reached, an application to the court must be made for orders allowing the travel to occur. The court will consider all elements relevant to the best interests of the child/children.

If you are concerned that your child/children are travelling overseas or being relocated without consent, you should seek legal help as soon as possible and apply for an order to prevent this from happening.

What about Child Support?

This area is not covered by the Family Law courts but is governed by the Child Support (Assessment) Act 1989 and carried out by The Department of Human Services. 

Generally speaking, both parents are liable to pay child support if there is the capacity to do so. The amount of child support each parent pays is calculated by considering the below information:

• The income of each parent.
• Percentage of nights each parent has the child or children.
• The number of children aged below the age of 13 and the number aged between 13 and 17.
• Whether the parent has any other dependents.
• An application can be made before the Family Law courts to depart from the child support formula assessment if there are circumstances that justify such an application (e.g. one party has significantly more assets or financial resources than the other).

You can find a child support calculator via the Australian Government Department of Human Services website. Please be aware that this is merely a guide and does not guarantee an accurate calculation.

More Questions?

This general guide provides a brief overview of the intricacies of child custody law during a separation or divorce. The law can be applied in many different ways depending on the circumstances of your matter.

At KPL Lawyers, we understand the importance of protecting your rights as a parent and your child/children’s right to secure and stable parental arrangements. Therefore it is advisable to seek legal advice before commencing any proceedings or entering negotiations regarding your parental rights.

Our dedicated family law specialists at KPL Lawyers have decades of experience and can help you navigate this complicated process with relative ease. Should you have any further questions, don’t hesitate to contact us today for a consultation.

When the unthinkable happens and you’re faced with the difficult task of dividing up your life, it’s normal to wonder – who gets what? After sharing your life with someone, it’s expected that you would share finances too. Regardless of how you and your ex-partner decide to approach the process of division, seeking legal advice will ease the stress of wondering what kind of financial position you will be in after the separation.

The Very First Financial Steps

As soon as you and your partner decide to separate, there are some practical considerations to address immediately. These do not have to be permanent but will be helpful as they relate directly to your financial living situation. You will need to determine:

• If you need to close any joint bank accounts or credit cards.
• If one party has no income, how will they be supported.
• Who will stay in your current shared residence and where will the other person live. It is important to know that if you leave your property, you do not lose your right to a share.
• Where your children will live and how they will be supported financially.
• Whether you will need to update your insurance policies.
• If you need to change the account holder name on any bills, mortgages, debts, rental leases etc.

After these matters have been attended to, you should speak to a reputable Family Law firm to get some professional advice from a trusted divorce lawyer about the rest of the process.

How Are These Decisions Made?

As mentioned in our complete guide to Navigating Family Law in Australia, decisions relating to the division of finances, property and assets are usually achieved under three scenarios:

1. You and your ex-partner agree on how things are split without the involvement of the court.
2. You and your ex-partner agree on how things are split and ask the court to register your agreement.
3. You and your ex-partner cannot reach an agreement and require court intervention to seek financial orders (to be made and decided by a judge or magistrate).

Even if you and your ex-partner reach a compromise without court intervention, it is advisable for both of you to consult legal professionals and have them review your agreement before anything is signed or registered with the court to make sure it is fair in your individual circumstances.

What are Assets, Liabilities, and Debt?

An asset is something of value that can be converted into cash. Liabilities are types of debt or forms of financial burden.

Assets can encompass a range of items including; real estate, savings, investments, insurance policies, inheritances, shares, superannuation, or other tangible items such as cars, furniture or jewellery.

Liabilities include things such as mortgages, loans, credit cards and personal debts. It is important to remember that debt forms part of your overall property settlement regardless of whether you or your partner incurred it. However, debt will not be considered in circumstances where it has been incurred for personal use or gain, and not for the advancement of your relationship.

Unless there is evidence to the contrary (and under special circumstances), all items are considered to form part of the property settlement despite whose name is on the documents of ownership, who bought the asset, or who obtained the debt.

What Will I Get?

In order to determine who gets what in a settlement, it is usual practice for the value of the property and assets to be first added up. Then the value of the debts and liabilities is calculated. The value of the debt is then deducted from the value of the property which produces an amount commonly referred to as the net pool of assets. This amount is the subject of the property settlement.

After the calculation is made and the aforementioned net pool of assets is confirmed, the pool will then be apportioned between you and your ex-partner. How this is divided is based on a range of considerations. Primarily the law is interested in:

1. The type of contribution each person made towards those assets; and
2. the current and future financial circumstances of each person.

It is extremely important to note that this is merely a guide as to what the courts consider and how property is ultimately divided. There is no precise formula or calculation as every relationship is unique, and there are many factors that the law considers when determining what is a just and equitable outcome for both parties.

Some other factors include:

• Direct financial contributions, such as wages.
• Indirect financial contributions, such as gifts and inheritance.
• Non-financial contributions such as caring for any children, and homemaking duties.
• Current and future earning potential.
• Overall financial resources.

Whether a determination of the above is made in court or amicably between two people, a family divorce or separation lawyer can help you with the separation process. KPL Lawyers can assist you with drafting a legal agreement so that you don’t have to go to court. If you do have to go to court, KPL Lawyers will make sure you have the best representation possible.

A Special Mention to Superannuation

It is important to note that superannuation is now considered part of your property settlement. Superannuation splitting has become a considerable part of property settlement over the years as the laws have finessed.

Superannuation can be divided by:

1. Splitting by agreement or court order.

It is worth noting that superannuation is still subject to superannuation preservation laws and cannot be released until you or your ex-partner reach retirement age.

2. Entering a flagging agreement.

This involves deferring a decision until another time. The superannuation fund is unable to move funds until this flagging agreement has been lifted or satisfied.

3. Leaving the superannuation, but accounting for it in the pool of assets.

You can choose to leave the superannuation in your accounts but have it considered in the calculation of the net pool of assets.

Superannuation can be a large asset in the division of property. The law surrounding this is complicated, so it is a good idea to get legal advice before entering into any negotiations to ensure you receive your fair share of assets.

Time Limitations

If you can’t reach an agreement with your ex-partner and you need to make an application for financial orders, it is of importance to note the time limitations imposed by the courts. Married couples only have a period of 12 months from the official date of divorce to file an application for a financial order. De facto couples have two years from the date of separation.

If you miss the limitation period, you will not be able to make an application for financial orders without first seeking leave from the Family Court. The act of seeking leave means to ask the court for permission to proceed despite being outside the timeframes required for the limitation period.

Approving leave is not always guaranteed, so it is vital that you speak to a separation lawyer and seek proper family law advice well before the end of the limitation period. KPL lawyers can advise you on the best practice approach to filing a financial order to protect your assets in a fair and just way.

We Were Never Married – Does This Still Apply To Me?

If you were never married, your partnership might still be considered a de facto relationship which has the same legal rights and responsibilities as a marriage.

What are de facto relationships? The definition can be found in section 4AA of the Family Law Act 1975. According to the law, you can be considered to be in a de facto relationship with another person if:

1. You are not legally married to each other; and
2. You are not related by family; and
3. After considering the circumstances of your relationship, it can be determined that you have a relationship as a couple living together on a genuine domestic basis.

In considering whether you have a relationship as a couple, the courts will consider a range of factors including:

• How long you have been together.
• If you are living together.
• Whether a sexual relationship exists.
• If there is any financial dependence/interdependence or if there are any arrangements to support one another financially.
• Who owns the property and who makes contributions.
• Evidence of a mutual commitment to a shared life.
• Whether your relationship has ever been formally registered with a state registry.
• If there are any children, and how they are cared for and supported.
• How your relationship is viewed in the public eye.

It is not common knowledge that a de facto relationship can exist even if one person is already legally married to someone else or in another de facto relationship. That is to say, de facto relationships are not necessarily mutually exclusive. This simultaneous relationship status can have an impediment on the division of assets, as both parties in the marriage and de facto have a right to claim. In these situations, it is imperative to seek legal advice from a divorce or separation lawyer.

If you need advice or would like to discuss your options, speak with one of our team members for some initial advice on how to prepare for your life ahead. Arrange your consultation here

 

 

Arguably one of the toughest times in any relationship is when couples decide to go their separate ways. Adding to the emotional strain of it all, is wondering what happens next?

During these difficult times, it is worth arming yourself with the knowledge and expertise of a trusted family law firm to help you through the process. The family law lawyers at KPL in Fairfield can provide you with exceptional, practical advice so that you can start the next chapter of your life from the best possible position.

KPL lawyers have helped many individuals and their families advance through these stressful situations using empathy and strong legal expertise. We understand that this is undoubtedly a tough time for all involved, rest assured that we are here to help.

What Are The Laws That Apply To Family Law?

Family law is predominantly governed by The Family Law Act 1975 which is read in conjunction with the Family Law Rules 2004 and the Federal Circuit Court Rules 2001. Most family law matters are heard before the Family Court of Australia and in the Federal Circuit Court of Australia. The purpose of Family Law is to settle and mediate family disputes that arise. These disputes include:

• Divorce;
• Division of property;
• Division of other assets;
• Spouse maintenance;
• Child support;
• Parenting arrangements.

Disputes are ultimately formalised and enforced by way of a court order. An order is the term for a legally binding decision made by a judicial officer of the court. Once an order is made, parties must obey it as law. Breaching an order is a severe offence and penalties can range from being issued a fine, being ordered to pay the other party’s costs, and jail time.

That isn’t to say disputes cannot be resolved amicably between two individuals. It is possible and in fact, encouraged by the courts for parties to draft and file an agreement together with the help of family lawyers (or separation lawyers). This type of agreement is called a consent order. A consent order is similar to the other order mentioned above, except it is a legally binding decision agreed to by the parties to the proceedings and confirmed by a judicial officer after being reviewed for fairness.

What Are Parenting Arrangements?

Parenting arrangements relate to child-rearing. Family Law courts consider parenting arrangements under two main areas:

1. Parental responsibility; and
2. Care time.

Decisions on how parental responsibility and care time is shared between parents can be made in three ways:

1. Adjudicated matters – occurs in front of a judge in a courtroom.
2. Consent after litigation – occurs when an agreement is made between the parents after the case begins but before the final trial.
3. Pure consent – occurs when an agreement is made between the parents through mediation or family law lawyers. This agreement can be in the form of a parental plan or consent orders.

What Is Parental Responsibility And What Is Care Time?

Under the Act, it broadly means all the duties, powers, responsibilities and authority which by law, parents have in relation to children. It is a very inclusive and overarching term that extends to most aspects of a child’s life from what socks they should wear to what religion they should practice. Having parental responsibility also means taking on the duty of protecting the child’s rights until they are of age, as well as supporting them financially.

The Act automatically gives both parents equal and shared parental responsibility unless there is what is commonly known in layman’s terms as a “child custody dispute”. In these instances, a parent must show that there are child safety concerns or other reasonable factors that would preclude the other parent from having equal and shared parental responsibility.

Care time on the other hand, refers to the actual face-to-face time each parent can physically spend with their child. This is usually split in ratios, i.e. equal time, substantial and significant time or fortnightly time and is decided by the courts or agreed again by consent between the parents. Over the years, family law has refined its approach on parenting arrangements, with the focus now being on parental responsibility rather than parental rights. When making determinations regarding parental responsibility and care time, the Act requires the court as well as the parents, to put the best interests of the child first. KPL lawyers are experts when it comes to negotiating parental arrangements and will achieve the best possible outcome for you and your children.

Who Pays Child Support?

This area is not covered by the Family Law courts but is governed by the Child Support (Assessment) Act 1989 and carried out by The Department of Human Services. Generally, both parents are liable to pay child support if there is capacity to do so. The amount of child support each parent pays is calculated by considering the below information:

• Income of parents.
• Percentage of nights each parent has the child or children.
• Number of children aged below the age of 13 and the number aged between 13 and 17.
• Whether the parent has any other dependents.

An application can be made before the Family Law courts to depart from the child support formula assessment if there are circumstances that justify such an application (e.g one party has significantly more assets or financial resources than the other).

You can find a child support calculator via the Australian Government Department of Human Services website https://processing.csa.gov.au/estimator/About.aspx. Please be aware that this is merely a guide and does not guarantee an accurate calculation.

How Do We Divide Finances, Property and Assets?

Decisions relating to the division of finances, property and assets can be dealt with in three ways:

1. Mutual agreement between the parties without the need for consent orders.
2. Mutual agreement between the parties via consent orders in the Family Law Court.
3. Via an application for financial orders (this order also includes the division of property and any payment of spouse or de facto partner maintenance).

It is essential to note when making an application for financial orders that time is of the essence. Married couples only have a period of 12 months from the official date of divorce to file an application for a financial order. For de facto couples, it’s two years from the date of separation. This timeframe is called a limitation period.

After the limitation period has elapsed, you will not be able to make an application for financial orders without first seeking leave from the Family Court. The act of seeking leave means to ask the court for permission to proceed despite being outside the timeframes required for the limitation period.

In this scenario, you will need to ask your lawyer to assist in providing the court with a strong argument as to why:

1. You were late and not able to finalise your financial settlement within timeframes; and
2. You would suffer financial hardships if you were unable to proceed with your application.

Approving leave is not always guaranteed, so it is vital that you speak to a separation lawyer and seek proper family law advice well before the end of the limitation period. KPL lawyers can advise you on the best practice approach to filing a financial order to protect your assets in a fair and just way.

How Will I Know What My Share Is?

The short answer is “it depends”. If the matter is before a judicial officer, they will take all the available evidence and information (including testimony from you and your former spouse) and make a decision based on the principles of equity and justice. The Act provides some guidance as to what may be considered by the court:

• The total value of the assets and also if there are any debts.
• Direct financial contributions by each party (e.g wages).
• Indirect financial contributions by each party (e.g gifts and inheritances).
• Non–financial contributions such as child rearing and caring for the home.
• Future support requirements (age, health, financial resources, care of children and ability to earn an income).

It is important to note that superannuation is now considered part of your property settlement. The different types of superannuation and the calculation of value varies and can be quite complicated, so it is advisable to seek legal advice before attempting to settle on your super.

What About Spousal Maintenance?

Spousal maintenance is an obligation for spouses to support one another financially, even after they have separated or divorced.

Under the Family Law Act, a legal or de facto spouse may claim spousal maintenance after separation. To achieve this, a spouse must first prove that they are unable to support themselves financially and that their other spouse has the financial capacity to fulfil that support.

When considering essential factors such as “how much” and for “how long”, the courts will look at all the available evidence and calculate what is a reasonable weekly amount.

Some of this evidence includes:

• Age
• Health
• Finances (including income and property)
• Capacity to work
• Job skills
• Standard of living
• Whether the marriage or de facto relationship has affected either parties ability to earn

Where To From Here?

What you have read is just a brief overview of some of the aspects that demonstrate just how complex the family law system can be. It is often a confusing process to navigate during what is already a very stressful period. The stakes are usually high and it can be emotionally tolling on everyone involved. With this in mind, you should ensure that you have the best legal team on your side to advocate for you, your children and your finances so that you can be set up for a brand new start. At KPL Lawyers, we believe that separating isn’t the beginning of the end, but oftentimes the start of a new beginning.

Speak with one of our team members for some initial advice on how to prepare for your life ahead.

Arrange your consultation here