The breakdown of a marriage or a relationship is stressful and fraught with emotion. Unfortunately, parties then need to turn their minds to resolving property and children’s matters. Litigation in the Family Court is a costly, time consuming and stressful experience. It is advisable (and in some cases mandatory) that parties attempt to settle their affairs outside of court.
It can be difficult for parties to take control of their affairs and to settle matters without legal advice. This is particularly so if parties do not know what their property entitlements are likely to be, or what “the norm” is in relation to contact with children of the relationship.
PRE-ACTION PROCEDURES
Prior to commencing proceedings in the Family Court, the parties must employ “primary dispute resolution methods” in an attempt to resolve their dispute. Primary dispute resolution methods include: “negotiation, conciliation, mediation arbitration and counselling”. The pre-action procedures are compulsory unless you can show:
1. For a parenting case – that there are allegations of child abuse or family violence;
2. For a property case- the case involves allegations of family violence or fraud;
3. The application is urgent;
4. You would be unduly prejudiced;
5. There has been a prior application to the court within 12 months of the commencement of the case.
PROPERTY MATTERS
The Family Court adopts the following procedure when making an order for an adjustment of property interests of the parties:
1. Identification and valuation of assets
The court will firstly determine what the parties own at the time of the hearing. The court may however take into account notional property where, for example, a party has disposed of property prior to the hearing.
All of the property owned by both parties will be taken into account. This means that property acquired before the marriage, during the marriage and after separation will all be regarded as forming part of the “pool of assets” (regardless of whose name the property is in).
After identifying the parties’ assets, a value must be attributed to those assets. It is then necessary to deduct an amount equal to any encumbrances on the property. For example a mortgage would be deducted from the market value of a property to determine the net value of the asset.
If the parties cannot agree upon the value of an asset, a valuation must be obtained. The Family Law Rules provide that the parties may only submit one joint expert report in respect of a particular asset. This means that the parties must agree upon a valuer and if they cannot do so, the court can nominate a valuer. The costs of any valuation are usually shared equally by the parties.
If the court is unable to attach a value to any particular asset, the asset will be sold.
In making an order, the court will have regard to the competing claims and relevant considerations broadly. The court will not undertake “a precise mathematical exercise”. It is not possible for the court to do so in any event as many of the matters that are taken into consideration when property interests are being determined cannot be quantified.
2. Contributions by each party
The second stage of the procedure is for the court to consider the contributions made by each party over the duration of the marriage. The relevant matters to be considered are as follows:
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The assets held by each party together with the value at the commencement of the relationship;
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Any gifts, inheritances, windfalls and lump sum payments during the period of marriage or since separation;
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Financial contributions made by each of the parties;
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Non-financial contributions made by the parties to the acquisition, conservation and improvement of the assets including contributions made by or on behalf of a party to the marriage;
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The contributions made by a party to the marriage to the welfare of the family including in the capacity of homemaker or parent.
3. Consider any adjustments to be made
The third stage is to consider whether any adjustments should be made for the future needs of the parties under s79(4) or s75(2) of the Family Law Act.
4. Consider whether the orders proposed are "just and equitable"
There is a legislative requirement that a court not make an adjustment under s79 unless it is satisfied that it is just and equitable to do so.
The court will firstly have regard to all matters in section 79(4) such as the age and state of health of the parties and then consider whether it is just and equitable to make an order.
Consent Orders
If the parties are able to reach an agreement in relation to the distribution of their assets, they may:
1. See a solicitor to draft Consent Orders on their behalf. Those consent orders would then be sent to the other party for their consideration. There would normally be some negotiation by the parties in respect of the substance or the precise terms of the agreement. Once an agreement is reached, each party would sign the consent orders and these would then be filed with the Family Court. Consent orders are binding upon both parties. Consent orders are enforceable and there are penalties for breaching them.
2. Download an Application for Consent Orders Kit from the Family Court website and complete the necessary forms once the parties reach an agreement.
3. Have a solicitor draft a Binding Financial Agreement.
Commencing Proceedings in the Family Court
Unfortunately, if it appears that the parties are unable to reach a settlement following negotiations, it may be appropriate to commence proceedings in the Family Court. This can be done by filing an Application for Final Orders. It can take 1-2 years for a matter to reach a final hearing in the Family Court.
If there are urgent matters that cannot be resolved by the parties an Application in a Case (a type of interim application) can be filed. As previously mentioned it can take up to two years for a matter to reach a final hearing in the Family Court (a final hearing is when everything is resolved once and for all). There are some issues that clearly cannot wait for 1-2 years to be resolved and therefore the court has the power to make interim orders after a short hearing. The interim orders will apply until the final hearing.
Examples of interim property applications include the following:
a) An application that one party continue to pay the mortgage on a property;
b) An application for maintenance;
c) An application for the sale of the former matrimonial home;
d) An application for the sale of an asset or payment of a liability;
e) An application for exclusive occupation of the former matrimonial home.
CHILDRENS' MATTERS
In making orders in respect of the welfare or upbringing of children, the best interests of the child are the paramount consideration.
In determining what the best interests of a child are the court will consider the following matters in s68F of the Family Law Act:
1. Any wishes expressed by the child and any factors which the court considers relevant to the weight it should give to the child’s best interests;
2. The nature of the relationship of the child with each of the child’s parents and other persons
3. The likely effect of any change in the child’s circumstances including the likely effect on the child of any separation from: (i) either of his or her parents (ii) any other child or other person with whom the child has been living;
4. The practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
5. The capacity of each parent or of any other person to provide for the needs of the child including emotional and intellectual needs;
6. The child’s maturity sex and background (including any need to maintain a connection with the lifestyle culture and traditions of Aboriginal peoples or Torres Strait Islanders) and any other characteristics of the child that the court thinks are relevant;
7. The need to protect the child from any physical or psychological harm caused or that may be caused by: (i) being subjected to or exposed to abuse, ill-treatment, violence or other behaviour or (ii) being directly or indirectly exposed to abuse, ill-treatment, violence or other behaviour that is directed towards or may affect another person;
8. The attitude to the child and the responsibilities of parenthood demonstrated by each of the child’s parents;
9. Any family violence involving the child or a member of the child’s family;
10. Any family violence order that applies to the child or a member of the child’s family;
11. Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
12. Any other fact or circumstance that the court thinks is relevant.
Parenting Orders
A court must consider all the relevant facts and circumstances when making a parenting order.
After the parents of a child separate, either or both of them may apply for interim residence (or what was previously known as custody) until the court can make a final decision about where the child will live. This decision will be made by the court having regard to affidavit material only.
It is established principle however that the welfare of the child will be served best by making an order that preserves the child’s current living circumstances unless it can be shown that the welfare of the child is at risk.
Contrary to popular belief, the court does not ascribe certain roles to males and females.
The Family Court will have regard to motherhood, separation from siblings and maintaining status quo however these can only be considerations and the weight attached to them in each matter will depend on each individual case.
Similarly, there are no matters that will automatically preclude a parent from having residence of their child. At all times the best interests of the child are considered. The court will however take into account matters such as alcoholism or domestic violence and it is likely that the court will determine that the child should reside with the parent who is not an alcoholic or violent.
Matters that are unique to a parent such as homosexuality, non-conventional religions, or transsexuality are to be taken into account and the weight to be attached to those matters will depend on each individual case.
The 6 Considerations that frequently arise in proceedings for a parenting order
1. The status quo
2. The separation of siblings
3. Position of the child’s mother
4. Position of a natural parent
5. The wishes of the child
6. The conduct of the parties
The above matters are all relevant considerations for the court however the weight attached to each factor in every case will differ.
Contact
Non-resident parents do not have a right to have contact with their children however it is generally regarded that it is in the best interests of the child to have contact with their non-resident parent.
The Family Law Act however gives children the right to have contact with their parents.
Generally one parent will have residence of a child, they are known as the resident parent.
The other parent is the non-resident parent and exercises contact with the child.
Both parents however are responsible for the long term care, welfare and development of their children.
Although there are no hard and fast rules in respect of the frequency of contact, the standard regime tends to be fortnightly contact from Friday evening to Sunday evening. This regime can and should be tailored to meet the needs of each family.
There are parents who have shared care of their children. For example, the child may spend half the week with one parent and the balance of the week with the other or they may spend a week with one parent and the following week with the other parent.
If you are able to reach an agreement about residence and contact you can either:
1. Have a solicitor draft consent orders; or
2. Draft the consent orders using the kit that can be downloaded off the Family Court website.
If you are not able to resolve issues of residence and contact with your spouse, you must file an Application for Final Orders in the Family Court and usually an Application in a case. The Application in a case will be necessary in circumstances where the parties cannot agree on where a child should live or the frequency of contact until the final hearing. The interim orders would then only apply until the final hearing. At the final hearing, the court will make a decision about where the child should live permanently as well as the contact that the non-resident parent should have.
DIVORCE
The parties to a marriage must be separated for a continuous period of more than 12 months before making an Application for Divorce.
The parties are given one opportunity to reconcile for a period of up to 3 months without nullifying a prior period of separation. If the parties separate again within 3 months of their attempt to reconcile, they can use the prior period of separation toward the 12 month total required for the filing of an Application for Divorce.
Parties can apply for a divorce after being separated for twelve months. If the marriage was less than two years in duration the parties must file a certificate stating that they have considered reconciliation with the assistance of an approved counsellor before the divorce will be granted.
Parties can be separated and living under the one roof. The Court may require the parties to file an Affidavit with the Application for Divorce confirming that although the parties were residing under the one roof, they were in fact separated.
An application for divorce must be filed with the Federal Magistrates Court of Australia (registries of the court are located in Sydney and Parramatta). There is a filing fee of $334 for the filing of an Application for Divorce. There are “Do it yourself Divorce kits” available on the Federal Magistrates Court website.
You do not need the consent of both parties to file for a divorce.
You must be able to show that satisfactory arrangements have been made for any children of the marriage under the age of 18 years.
SPOUSAL MAINTENANCE & CHILD SUPPORT
There are two types of maintenance:
1. Spousal maintenance - This concerns the liability of one party to the marriage to maintain the other party. The court looks at a number of matters when considering whether it is appropriate to make a maintenance order.
2. Child maintenance – This concerns the liability of a party to the marriage to maintain a child of the marriage.
A party can only apply for a child maintenance order via the family court if they are not entitled to make an application for an administrative assessment of child support through the Child Support Agency.
The CSA will assess the amount of child support payable after looking at a number of matters including the income and assets of the non-resident parent. There is a calculator available on the child support website that allows you to calculate the amount of child support that would be payable either to you if you are resident parent or by you if you are the non-resident parent.
Contact the Family Law Team at Prime Lawyers on (02) 9521 2222. You can also send your enquiry online now and we will call you shortly.