Pearce Webster Dugdales has a range and depth of experienced Family lawyers who are ready to assist and advise you in the area of family law. Some of those lawyers are Law Institute of Victoria accredited specialists, while others have decades of experience.

There are many areas of family law which may be relevant to your situation. Our Family lawyers are well versed in all areas of family law practice and are expert problem solvers so as to advise and assist you.

Parenting and Children’s Orders

If a relationship breaks down and there are children of same, it is generally important (in the absence of agreement with the other parent) to establish clear and enforceable arrangements for the children’s living arrangements.

 

WHAT ARE THE MAIN ISSUES?

The main things you will want sorted out will be:

  • Whether the parents will retain equal shared parental responsibility. This is for major issues and usually remains shared. It includes:
    • Religion/culture;
    • Schooling;
    • Health (including immunisation);
    • Child’s name;
    • Significant changes to living arrangements.

 

  • With whom the children are to live; and

 

  • How much time the children will spend with the non-resident parent or with other significant parties such as grandparents.

 

WHO MAY APPLY FOR A COURT ORDER?

The law stipulates that the following persons can apply for a Children’s Order, namely:

  1. The child’s parents.
  2. In certain circumstances the child.
  3. A grandparent.
  4. Any other person concerned with the care, welfare and development of the child.

 

PARENTING ORDERS BY CONSENT

Consent Orders

Children’s arrangements can often be worked out between parents directly.

 

Alternatively, matters are frequently resolved through negotiations between lawyers with expertise in this area. As a result litigation can be avoided.

 

Once agreement is reached, it is important that there is certainty and security for both parents and importantly for the children. This can be achieved by filing an application and proposed Consent Orders with the court, setting out what has been agreed. This step ensures that the arrangements are binding and enforceable. This process does not involve a court appearance by the parties or their lawyers and is therefore relatively inexpensive.

 

Parenting Plans

The Plan can deal with living arrangements and other matters important to the family.

 

However, unfortunately a Parenting Plan cannot be enforced as a Court Order. That means that if there is a dispute, the Plan cannot be relied on by either party and a Court Order then has to be sought.

 

Therefore our view is that as a general proposition, that Parenting Orders ought to be sought in almost all cases.

 

YOUR OPTIONS IN THE EVENT OF DISAGREEMENT ABOUT CHILDREN’S LIVING ARRANGEMENTS

Alternative Dispute Resolution – Pre Action Procedure

If agreement cannot be reached about children, an Application can be filed with the Court. However, unless the matter is urgent, parties first have to attend Alternative Dispute Resolution (ADR) before they are permitted to file a Court Application (see Section 60I of the Family Law Act 1975).

 

ADR is offered by a number of agencies such as Relationships Australia. There is also a number of accredited private agencies which can assist.

 

Urgency/Risk

If there is urgency or risk, a Children’s Order Application can be filed immediately without first attending Alternative Dispute Resolution. This might be because there are family violence or abuse risks or a situation of urgency such as a child snatch or international relocation.

 

Interim Hearing/Interim Orders

After a routine Application is filed, it usually takes several weeks to come before the Court. However, if the matter is urgent, a party can ask the Court to abridge (shorten) the waiting period, depending on the urgency. An Interim Hearing can be listed promptly, with priority.

 

At the Interim Hearing, the Court reads the Application and Affidavits that have been filed and makes Interim Orders to deal with immediate issues pending a final determination about arrangements for the children. The Interim Orders the Court may make can include:

  1. Search and Recovery Orders – to locate and return children. This can include searching of aircrafts, other vehicles, etc.
  2. Airport Watch Orders – to prevent children departure from Australia.
  3. An Order about with whom the children are to live for the immediate future.
  4. An Order as to time the other parent is to spend with the children, including issues of supervision where relevant.
  5. Surrender of Passports.
  6. Injunctions.
  7. The appointment of an Independent Children’s Lawyer to independently articulate the best interests of the children.
  8. An Order for a Family Report.
  9. An Order for psychiatric treatment and/or psychiatric report.
  10. An Order for psychological treatment and/or psychological report.

 

The Court does not hear evidence at the Interim Hearing/ Interim Order stage. The Court makes its interim decision based on brief oral submissions by the parties or their lawyers and on the paperwork before the Court on the day.

 

The focus is to lock in arrangements that best protect the children and assist in maintaining relationships with both parents until a Final Hearing at a later date.

 

WHAT CAN YOU EXPECT AFTER THE APPLICATION HAS BEEN FILED AT COURT?

Settlement Efforts

After any interim issues are dealt with and the case is awaiting Final Hearing, the Family Court and Federal Circuit Court continue to offer opportunities to resolve children’s disputes without a final hearing. These supportive Court arranged steps include mediation, counselling, and the intervention of a family consultant.

 

Alternatively, your lawyer can arrange Mediation and often matters can settle there without continuing with the litigation.

 

During this period, endeavours can also continue to be made by your Solicitor to negotiate out and resolve the dispute without a Final Hearing.

 

As parties can be waiting for around a year to get to a Final Hearing, they are encouraged to try to reach agreement. The vast majority of cases end up settling without a Final Hearing.

 

Family Reports

Often as part of the process of resolving a case, the Court will order a Family Report. The purpose of this report is to assist the Court in deciding a children’s dispute. The report writer is usually a psychologist or social worker with extensive family law experience. The report writer makes recommendations. However, it remains up to the court to make the final decision, if the parties cannot agree.

 

Often, the Family Report writer’s recommendations assist the parties in reaching agreement and the Final Hearing can be avoided.

 

If the matter proceeds to a Final Hearing, the Family Report will be relied on as a piece of evidence, and the report writer can be cross examined.

 

Medical report

As part of the investigative report process, either a party or the court may ask that a party or the children be examined by an expert, such as a psychologist or a psychiatrist who then prepares a report. That report helps the Court make decisions about the case. The report writer can be called to give evidence. Sometimes the report will recommend ongoing treatment for a party or a child.

 

Often once a Medical Report is available the parties can move forward and reach agreement.

 

Post separation parenting program

Sometimes the court or the parties seek participation is a Post Separation Parenting Program. The group work this involves can really help parties work through shared parenting and conflict management. Often the process of participating can diffuse many issues and help the parties focus on the children. Agencies such as Relationships Australia offer this service.

 

Independent Children’s Lawyer

In some cases the court decides to appoint an Independent Children’s Lawyer (ICL). The ICL’s job is to put forward what is best for the children. It is not a question of the ICL following the children’s wishes, but weighing up what the ICL believes is in the best interests of those children.

 

Cases where an ICL may be appointed might include:

  • Where the parents simply cannot agree on anything
  • Where there has been child abuse
  • If there is a risk of separating siblings
  • If neither parent has a lawyer and therefore there is no formal representation at court.

 

In some circumstances, legal aid generally funds the appointment of an ICL. Often as a parent you may be asked to contribute to the legal costs of that appointee.

 

WHAT LAW DOES THE COURT APPLY WHEN MAKING CHILDREN’S ORDERS?

Section 60CA of the Family Law Act 1975 says that when making Children’s Orders, the court must prioritise the best interests of the children.

 

Section 60CC(3) identifies primary considerations and additional considerations which a court has to look at when weighing up what is best for a child.

 

Primary considerations are:

  1. The Benefit to the child of having a meaningful relationship with both of its parents; and
  2. The need to protect the child from physical or psychological harm, abuse or neglect.

 

Additional considerations include:

  1. Views expressed by the child
  2. What sort of relationship that child has with its parents and any other party such as Grandparents
  3. Each parents’ involvement with the child to date
  4. How any change in current arrangements would affect the child’s relationship with parents or other important third parties
  5. Practical difficulties and expense which spending time with a child is likely to have
  6. Capacity of the parents to provide for the child’s emotional and intellectual needs
  7. The maturity, gender, lifestyle and background of the child and the child’s parents
  8. If the child is of Aboriginal or Torres Strait Islander descent, the child’s rights to continue to enjoy that culture
  9. The attitude of each parent to parenting
  10. Any family violence issues
  11. Making orders that are likely to finalise matters rather than lead to future litigation
  12. Any other facts or circumstances that the court thinks would be relevant

 

  • Section 61DA of the Family Law Act 1975 stipulates that when making Children’s Orders the court must start with the presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility.

 

That presumption does not apply if there are reasonable grounds to conclude that a parent of the child has been involved in abuse of the child or another child, or family violence.

 

  • Section 65DAA of the Act provides that where the court makes Orders that the parents retain equal shared parental responsibility, then as a starting point, the court must consider whether giving the parents equal time with the child is in the best interests of the child and is reasonably practicable in all the circumstances.

 

  • That same section then says if the Court does not end up ordering equal time between the parents, then it must consider whether the child should spend substantial and significant time with each parent.

 

  • If the Court considers it but then concludes that substantial and significant time is not appropriate, the Court must then explore what other arrangements would be in the best interests of the child and be reasonably practicable.

 

The steps a Court must take and the issues a Court is bound to weigh up are detailed and complex. When starting a Court Application or presenting a Contested Final Hearing, it is vital that your case is argued through logically, having regard to each and every one of the relevant sections of the legislation.

 

CAN CHILDREN’S ORDERS BE VARIED?

Unlike Property Matters, Children’s Orders are never final. They can be varied later if there is a significant change in circumstances.

Property Settlements

It is important that any property settlement is properly documented in order to give you financial certainty and closure.

The two options are as follows:-

  1. Firstly, obtaining Final Property Orders via consent through an administrative process (provided there is agreement about same) or obtaining Orders after litigation in the Federal Circuit Court or Family Court.
  2. Secondly, through documenting the agreement privately through a Financial Agreement (also known as Binding Financial Agreements).

These options are available to all couples whether they are married, de facto or same sex couples.

 PRELIMINARY LEGAL ISSUES

For married couples, any Application for Property or Financial Orders is required to be filed with the Court within 12 months of the date of a Divorce.  Applications filed after the date of 12 months from Divorce require the leave of the Court to proceed.

It is important to note that Application for Property and Financial Orders by Defacto and same sex couples need to be filed within 2 years from the date of the breakdown of the relationship.  Applications filed after the expiration of 2 years will require the leave of the Court in order for same to proceed.

WHAT THE LAW LOOKS AT

The first and preliminary step is to determine whether any property adjustment is appropriate or whether each party should retain their assets, liabilities and superannuation entitlements without claim by the other party.

In the event that a property adjustment is considered appropriate four steps are then undertaken to establish each party’s entitlements.

Four Step Approach:-

  1. A determination is made as to all assets, liabilities and superannuation entitlements (as well as financial resources).
  2. A determination is made as to each party’s contributions towards the acquisition, conservation and maintenance of each party through their financial and non-financial contributions.
  3. An examination then takes place in relation to the future needs of both parties including ascertaining the care of children and earning capacity.
  4. The last stage is for the settlement or Court Order if determined by a Judge to ensure that the outcome is just and equitable at law.

No two cases are ever the same.  Each case is unique and is dealt with on its own merits after a careful analysis of all relevant factors.

DUTY OF DISCLOSURE

Each party has a duty to fully and frankly disclose all of their assets, liabilities, superannuation and financial resources.

A failure to do so can have serious implications which can include the setting aside of Orders at a later date.

FINALITY AND CLOSURE

Whilst it is possible for parties to enter into private arrangements between themselves without obtaining a Court Order or entering into a Financial Agreement, those agreements are not binding.

Therefore there is always the risk without a Court Order or Financial Agreement that the other party may seek to renegotiate a property settlement unexpectedly.

As a result, it is false economy not to formalise a settlement properly in a legally binding way.

We can discuss with you the costs associated with finalising your arrangement through Consent Orders (obtained through an administrative process) or entering into a private Financial Agreement.

 

Financial Agreements

It is possible for couples (married, defacto and same sex) to enter into a Financial Agreement (often to referred to as a Binding Financial Agreement) to regulate disposal of their property, assets, liabilities, superannuation entitlements and maintenance Orders without the involvement of the Federal Circuit Court or Family Court.

 

WHEN CAN YOU HAVE ONE?

A Financial Agreement can be entered into prior to the relationship/marriage, during same or at the end of the relationship/marriage.

 

WHAT IS THE EFFECT OF A VALID AGREEMENT?

A valid Financial Agreement at first instance sets out each party’s entitlements in relation to financial matters (including property settlement and/or maintenance) with a view to providing certainty to each party hopefully leading to no litigation at the end of their relationship/marriage.

 

In the event that there is no valid Agreement in force, then each party’s entitlements and issues relating to financial matters are dealt with through the Family Law system.

 

Many parties prefer to have a private Agreement and control of their destiny rather than having to go through a Court process and letting a Judge determine entitlements.

 

Some Agreements include “sunset clauses” for example:-

  1. That the Agreement is for a limited time (say the first five years of the relationship only); or
  2. Until the happening of a particular event (say the birth of a first child).

 

STRICT LEGAL REQUIREMENTS

Due to the fact that an Agreement dealing with what is to take place in the future following a breakdown has not been pre-approved by a Court, there are very strict requirements in relation to the content of the Agreement and the requirements for the signing of same including:-

  • The parties’ conduct around making the Agreement;
  • The need to make full financial disclosure to each other;
  • The terms of the Agreement, and what the document must cover;
  • The signing of the Agreement itself;
  • The receipt of separate independent legal advice; and
  • The provision of independent certificates of separate legal advice in the Agreement.

 

In the event that the strict legal requirements are not followed, there would be a significant risk that upon the Agreement being challenged in the Court, that the Court would set aside the Agreement.

 

ADVANTAGES OF AN AGREEMENT

  1. Parties want certainty about future finances;
  2. Parties see the Agreement as of assistance in avoiding dispute between them about finances;
  3. Having an Agreement helps avoid the expense, delay, uncertainty and stress of a future Court-determined property settlement;
  4. People do not like being told what is fair by a future Court and prefer to reach agreement directly together;
  5. Agreements enable parties to quarantine out particular assets or inheritances or family gifts and the like, which would otherwise be at risk if the Court determined a property settlement.

 

DISADVANTAGES OF AN AGREEMENT –

Examples of potential disadvantages (noting that each case needs to be treated on its own merits) include but are not limited to the following:-

  1. Raising the subject or trying to agree to terms can be uncomfortable and detrimental to a relationship when all may be going well.
  2. The strict requirements for a Financial Agreement and the broad grounds upon which they can be set aside, can make them costly to draft, prepare, negotiate, advise on and finalise.
  3. In some circumstances, after a lot of hard work and negotiation, final terms cannot be agreed by which time considerable effort and costs may have been involved.
  4. Because of the strict requirements of full disclosure, some parties feel uncomfortable about divulging their full financial circumstances to the other party particularly if the relationship is fairly new.
  5. There is no process for the official registration of a Financial Agreement and problems can arise if the original is lost or destroyed.
  6. The terms of the Agreement require a lot of crystal-ball gazing and second-guessing. It can be hard for parties to imagine what circumstances they might be in many years after the Agreement is signed.
  7. There is no absolute guarantee that such an Agreement will remain binding and unchallengeable in the future.

 

GROUNDS FOR CHALLENGING AND SETTING ASIDE A FINANCIAL AGREEMENT

A Financial Agreement is essentially a private contract between parties but that Agreement can be set aside by the Family Court in certain circumstances including the following:-

  1. A party behaved unconscionably or put pressure on the other party with the result that the Agreement was obtained by a degree of coercion.
  2. The Agreement was obtained by fraud.
  3. The Agreement was entered into for the purpose of defrauding or defeating creditors.
  4. The Agreement is not prepared in accordance with the legislation and is therefore unenforceable.
  5. There has been a failure to make full and frank financial disclosure to the other party.
  6. Since the making of the Agreement there is in material change in circumstances (for example in relation to the welfare of a child) and hardship will occur if the Agreement if not set aside.

 

TERMINATING A FINANCIAL AGREEMENT BY CONSENT

If you and your partner agree that you wish to terminate an Agreement, this cannot be done verbally and the termination must be in writing.

 

Termination can occur by either:-

  1. The parties signing a Termination Agreement – this is simply a short document; or
  2. If they enter into a new Financial Agreement including a provision terminating the old Agreement.

 

Further it is worth noting that:-

  • If the Financial Agreement is set aside by a Court that of course, has the same effect as a termination;
  • If de facto parties to an Agreement subsequently marry then the Agreement between them ceases to be binding although technically is not set aside at that point. A fresh Agreement would then need to be entered into by the parties if they still want to be bound by similar arrangements;
  • Likewise, legislatively, sunset clauses do not in and of themselves terminate an Agreement.

 

In conclusion, Financial Agreements are complex documents unless they are drawn appropriately and in strict compliance with the law, there may be a risk that the Agreement will be set aside.

On the other hand, if the Agreement is drawn appropriately and the implementation of the Agreement results in an appropriate outcome at law, there is every prospect that the Agreement would be found to be valid if it was ever challenged.

It needs to be noted however that if the implementation of the Agreement is so unfair to one of the parties, then there is the real prospect that the Court will take the view that the Agreement was obtained irregularly, is unjust and should be set aside.

Child Support

HOW MUCH IS PAYABLE?

Child Support is assessed and administered in Australia by the Child Support Agency. The Agency is an Australian Government organisation within the Department of Human Services.

 

The level of Child Support payable to the primary carer of the child is worked out on the basis of each parent’s income, and the amount of care each parent has.

 

Changing the Assessment

If a party is not happy with a Child Support Agency Assessment it can be reviewed on certain grounds. In a limited number of cases you can also apply to the Court for a Departure Order.

 

How is Child Support Paid?

  • Periodic eg. Weekly, fortnightly or monthly; or
  • Or non-periodic eg payment of school fees; or
  • Or by way of lump sum in certain circumstances.

 

CHILD SUPPORT AGREEMENTS

Rather than simply having an assessment made by the Child Support Agency, some parties choose to enter into a formal Child Support Agreement. This can be either:

  • A Non-Binding/Limited Agreement; or
  • A Binding Child Support Agreement.

 

Non-Binding/Limited Child Support Agreements

A Limited Child Support Agreement will be accepted by the Child Support Agency if:

  • There is already a Child Support Assessment in place; and
  • The annual rate payable in the Agreement is at least as much as what would be payable under the Child Support Assessment; and
  • The agreement is in writing; and
  • It is signed by both parties.

 

A Limited Child Support Agreement can be terminated if:

  • The parties agree in writing to end it; or
  • It is at least 3 years since the Agreement was made; or
  • The notional assessment (ie. what would be paid if there were no Agreement) is varied by more than 15%; or
  • The parties enter into a new Limited or Binding Agreement which includes a clause terminating the existing Agreement; or
  • There is a Court Order made which terminates the Agreement.

 

Binding Child Support Agreements 

A Binding Child Support Agreement is binding only if:

  • It is in writing; and
  • It is signed by all parties; and
  • Before the Agreement is signed each party receives Independent Legal Advice; and
  • Each lawyer attaches a Certificate to this effect to the Agreement.

 

A Binding Child Support Agreement can be for less than the Child Support Assessment amount.

 

A Binding Child Support Agreement can be terminated only if:

  • The parties enter into another Binding Child Support Agreement which includes a clause terminating the previous Agreement; or
  • There is a Court Order made which terminates the Binding Child Support Agreement.

 

Importantly, the Court will only terminate a Binding Child Support Agreement in exceptional circumstances and certainly this does not happen automatically.

 

It is because a Binding Child Support Agreement can have significant consequences for one or both parties, that legal advice must first be obtained.

Family Violence and Intervention Orders

An Application for an Intervention Order may be made at any State Magistrates’ Court.

 

Intervention Orders are known in some other States as Apprehended Violence Orders (AVOs).

 

An Application can be made:

  1. Under the Personal Safety Intervention Orders Act 2010where there is no family relationship between the Applicant and the Respondent; or
  2. Under the Family Violence Protection Act 2008where the Applicant and Respondent are family members. “Family members” is defined widely and includes de facto relatives.

 

Intervention Orders focus on individual safety and property preservation.

 

WHO CAN MAKE AN APPLICATION?

The Application for an Intervention Order may be made at the Magistrates’ Court by:

  • The affected family member (or affected person) if that person is at least 18; or
  • By a police officer on behalf of the Applicant; or
  • By any other person with the written consent of the affected person/affected family member; or
  • If the affected person is a child, then by the child’s parent or any other person with the written consent of the child’s parent; or
  • With the Court’s permission, by a child if the child is over 14 in certain circumstances.

 

WHAT IS FAMILY VIOLENCE?

Family Violence includes mainly but is not necessarily limited to:

  • Threats;
  • Physical and sexual abuse;
  • Emotional and psychological abuse;
  • Economic abuse;
  • Injury to animals;
  • Damage to property;
  • Controlling, dominating conduct – which cause an applicant to fear for his/her safety or another person’s safety.

 

A Personal Safety Order can be made where the Applicant fears for his/her safety, because of the conduct of a non-family member. This can be for conduct such as stalking behaviour, misbehaviour of neighbours or misbehaviour of people who are not relatives, threats of violence or violence. The Court may suggest the parties attend Mediation subject to a preliminary assessment as to its appropriateness.

 

An Intervention Order can do any number of things and commonly:

  • Prohibits specific behaviour; or
  • Prohibits attendance at a particular occasion; or
  • Prohibits a party coming within a particular distance of a location such as a place of work or a home; or
  • Prohibits communications with the affected family member; or
  • Protects property; or
  • Forbids conduct such as following a person;
  • Revokes firearms licences;
  • Requires a party to attend counselling.

 

Family Law Children’s Orders

The terms of an interim or final Intervention Order can have a direct and significant bearing on existing or future arrangements about Children or Family Law Children’s Orders.

 

The Family Law Act 1975 and the Family Violence Protection Act 2008 make it clear that in certain circumstances a Magistrate making an interim Intervention Order can cancel a Family Law Children’s Order to the extent that the Family Law Order is inconsistent with the Intervention Order.

 

Interim Orders may be made in the absence of a party. Once Court ordered restrictions are in place in an Intervention Order, it may be difficult to have these conditions varied without the consent of the other party. It is important that your options and entitlements are explored at the earliest opportunity.

 

INTERIM ORDER

If a Court considers it appropriate, then an Interim (immediate) Order can be made pending further Mention or Hearing. Invariably, the Police serve Orders on the other party.

 

PENALTIES FOR BREACH OF AN INTERIM OR FINAL INTERVENTION ORDER

The granting of an Interim Intervention Order against a party is a civil order and does not constitute a criminal conviction.

 

However, if the Police were to file proceedings against a party alleging that they had breached an Intervention Order and the Court finds that a breach has taken place, the Court can record a conviction or take other action under the relevant criminal code.

 

The penalties for breaching an Intervention Order can include fines and in serious circumstances the imposition of a jail term.

 

DURATION

The duration of any Order granted depends on the particular circumstances prevailing in each case. Often Orders are made for 6 months or 1 year. Orders can be indefinite. Orders can be extended. Orders can be revoked. Orders can be varied.

 

DEFENDING AN APPLICATION FOR AN INTERVENTION ORDER

Likewise, if you have been served with an Intervention Order Application and disagree with the accusations made, it is vital that you get a chance to put your position to the Court. If the appropriate action is not taken promptly, an Order may be made against you in your absence. Not only may that Order significantly restrict your movements, but a breach of its conditions could attract severe penalties including imprisonment.

Adult Child Maintenance

A Child Support Assessment ceases automatically once a child attains the age of 18 or completes Year 12 at school, whichever is the later.

However, sometimes that child still needs support either because:

  • The child is undertaking Tertiary studies; or
  • The child is physically or mentally ill and not able to provide self-support.

In those circumstances, a Court has to decide the level of support.

How Does The Court Work this Out?

When deciding what is appropriate, the Court looks at such factors as:

  • The financial circumstances of the person applying for adult child maintenance (this is usually the party with whom the child lives or it may be the child);
  • The financial circumstances of the other parent;
  • The child’s own capacity to support him/herself, including:
    • The child’s health;
    • Whether the child can readily obtain work (eg. does the child live in a remote location or in a city setting where there are work opportunities);
    • The type of tertiary course the child is undertaking (eg. For how many core hours the child requires to be at the tertiary institution as against what spare time the child has to work);
    • The child’s own financial circumstances (eg. does the child receive money from a family trust, or under a will, does the child have assets, etc).

It is most important that the best interests of your children are properly protected whether it is living or financial arrangements.

De Facto and Same Sex Couples Family Law

Many people choose simply to live together rather than marry and the law relating to de facto and same sex couples is, save for a few limited circumstances, the same as for married couples.

 

HOW DO YOU KNOW IF YOU ARE ALREADY A DE FACTO COUPLE?

Section 4AA of the Family Law Act gives some pointers as to what would be looked at to answer this:

  • The length of your relationship;
  • Whether you share a home;
  • Whether you have a sexual relationship;
  • Your financial arrangements;
  • What property you own/use together;
  • How committed you seem;
  • Whether the de facto relationship is officially registered;
  • Care and support arrangements for any children;
  • How others view your relationship.

 

Your relationship may be considered de facto even if:

  • You are in more than one de facto relationship at the same time; or
  • You are already legally married to someone else.

 

There is no one “clear cut” answer as to what defines a de facto relationship. The Court look at the whole circumstances to decide this issue. If the Court determines a de facto relationship exists, then the Family Law Act applies. On the other hand, if the relationship is characterised as something else, then very complex laws of trust and equity regulate the affairs of the persons concerned.

 

WHAT SORT OF COURT ORDERS CAN DE FACTO PARTIES SEEK?

Defacto partners can, like married couples, file Applications for the following:-

  1. Property proceedings;
  2. Spousal maintenance proceedings, once separated;
  3. Parenting Orders;
  4. Child support and adult child maintenance (as well as seeking child support via the Child Support Agency where appropriate).

 

LEGAL REQUIREMENTS

2 Year Rule

Unlike married couples who can commence proceedings for a property or financial orders at any time without the leave of the Court (unless 12 months from the date of Divorce has expired), the Family Law Act requires a defacto couple to have been in a relationship for at least 2 years if they wish to apply to the Court for a property adjustment.

However, this rule can be waived and leave granted by the Court to continue with proceedings if:-

  1. There is a child of the de facto relationship; or
  2. The Court thinks it would be seriously unjust to deny access to the Court; or
  3. If the de facto relationship is registered.

 

Geographical Requirement

Section 90SD of the Family Law Act flags some preliminary jurisdictional requirements around where parties live for at least part of the relationship and where they live when the relationship breaks down.

This would be relevant for example, for Australians living overseas during or at the end of their de facto relationship, who were seeking Court Orders in Australia.

 

Time Limits

Section 44(5) of the Family Law Act states that de facto parties must make their application to the Court for property or maintenance within 2 years of the relationship breaking down.

However, in certain limited circumstances, this period can be extended with the Court’s permission:

  • On grounds of hardship to the late party or a child; or
  • If the Applicant was relying on Government assistance when the 2-year period ended.

 

CHILDREN OF DEFACTO COUPLES

The children of defacto couples and the law relating to their living arrangements are identical with children from married couples.

 

REGISTERING YOUR RELATIONSHIP

Some de facto partners choose to register their relationship with the Registrar of Births, Deaths and Marriages. Not only does this serve to demonstrate their commitment to the relationship but it helps prove that they are in a domestic relationship.

This may be useful if, for example:-

  1. The parties separate and want to take Court proceedings against each other for property or children’s Orders or maintenance;
  2. If either of them dies during the relationship and the survivor wants to claim superannuation death benefits or inheritance rights or to be fully involved in medical decisions during an illness.

 

The Family Law Team at Pearce Webster Dugdales has extensive experience in this area of the law and will be happy to help you work through all relevant issues.

 

SAME SEX COUPLES

Who is covered?

The Family Law Act provides jurisdiction not only to married couples but all couples from the LGBTIQ community.

In defining a defacto relationship, the Family Law Act, which is Australia wide legislation, defines a de facto relationship to be one where:

“a) the persons are not legally married to each other; and

b) the persons are not related by family…; and

c) … they have a relationship as a couple living together on a genuine domestic basis.”

 

As can be seen the legislation is therefore gender neutral.

 

Victorian State Law

Formalities – Registration of same sex relationship –

Same sex de facto couples have been able to register their relationships with the Registry of Births, Deaths and Marriages in Victoria since 2008. This has had the effect of according same sex de facto couples the same rights as their heterosexual counterparts. The act of registration provides conclusive proof of the existence of the relationship and assists in such matters as accessing superannuation death benefits, securing inheritance rights, assisting in medical decision making and in many others.

 

Overseas Unions –

Since December 2015 Victoria (as well as three other states) has recognised same sex marriage and civil partnerships performed overseas, providing automatic recognition of such unions in their respective state registers.

However, this does not have the effect of according that foreign marriage formal recognition. Marriage remains a federal law matter.

 

Children and Access to IVF –

Since the passing of the Assisted Reproductive Treatment Act 2008 single women and lesbian couples have been able to access assisted conception procedures.

The Status of Children Act 1974 in Victoria, was amended to clarify that a non-birth mother in a lesbian relationship is recognised as the other legal parent of any child or children conceived during their relationship. This is also mirrored in Federal legislation under Section 60H(1) of the Family Law Act 1975 which was amended to acknowledge both members of a lesbian couple as the legal parents of any baby born through IVF if the couple were living together when conception occurred.

 

The experienced Family Lawyers at Pearce Webster Dugdales can help you navigate this complex and ever-evolving area of the law.

Please contact us for an obligation-free preliminary discussion.

Practical Steps to Implement Following Separation

It is important to take steps following a separation in relation to the following:-

 

  • Reviewing and updating your Will.

 

  • Reviewing and updating Superannuation Death Nominations so that in the event of your death, that the Trustee is obliged to make payment of your superannuation to your nominated beneficiary.  A Binding Nomination is usually only valid for a period of three years at which time it must be renewed.

 

  • You may wish to change your name following the breakdown of a marriage or relationship and this can be achieved fairly readily under the law.

 

Our experienced family lawyers are happy to discuss these practical issues with you at any time.

Family Law Appeals

Family Law cases are heard in either the Federal Circuit Court or the Family Court.  In some cases, there are grounds for family lawyers to lodge an Appeal against a decision by the Judge making Interim and/or Final Orders on your family law matters.

 

WHO HEARS APPEALS?

Appeals are heard either by one or more Judges depending on which Court made the Order which you wish to appeal.

 

STRICT TIME LIMITS AND PROCEDURAL PITFALLS

If a party (the Appellant) wants to appeal an order, the Appellant has to file a Notice of Appeal at Court within 28 days of that order being made.

The Family Law Rules set out strict time limits within which to attend to other paperwork after the Appeal is filed, such as:

  1. Serving the Notice of Appeal on all other parties – 14 days;
  2. Filing a draft Index to the Appeal Books and serving it – 28 days;
  3. Attending Court for a procedural hearing when set by the Court;
  4. Filing and serving Appeal Books on all relevant parties – by a date set by the Court;
  5. Filing and serving a Summary of Arguments and list of previous relevant Court cases, on all other parties – not less than 28 days before the beginning of the Appeal sitting;
  6. The other party (the Respondent or Cross-Appellant) is also required to file certain documents within a strict time frame if the Respondent wants to challenge the Appeal.

TO APPEAL OR NOT TO APPEAL? 

  • You should not appeal just because you do not agree with the original Court’s decision;
  • In some limited cases you need the Court’s leave (permission) (see Section 94AA of the Family Law Act 1975);
  • In other cases you simply cannot appeal against the Court’s decision at all;
  • You should only appeal if the first Court made an error e.g. that Court:
    • Applied the law wrongly;
    • In exercising its discretion, arrived at a decision that was clearly the wrong one, ie. a decision so wrong that no reasonable Judge would have made it;
    • Made a wrong finding in fact. This needs to be a clear error of finding of fact and easily provable.

FINANCIAL CONSEQUENCES OF AN UNSUCCESSFUL APPEAL 

If you wish to file an Appeal against an Order there is the prospect of significant costs if you are unsuccessful.

We note:-

  • A fee usually has to be paid to the Court (filing fee) at the start of the Appeal;
  • The fees required by the accredited family law firm representing you for the preparation and presentation of your case can be significant due to complexities;
  • A transcript fee – i.e. a copy of the recording of the original Court’s hearing must be paid for by each party;
  • If your Appeal is not successful the Court will usually order you to pay the costs of the other party(ies);
  • You can stop (abandon) your Appeal at any time. However if you do so you are likely to be ordered to pay all other litigants’ costs.

Spousal Maintenance

The Family Law Act provides that in appropriate circumstances, a person in a marriage or defacto relationship (including same sex couples) can make an Application for Spousal Maintenance, firstly if they can demonstrate they have a need for same and secondly, an Order can be made against the other spouse or partner if that person has the financial ability to contribute towards the other party’s maintenance.

 

A payment of spousal maintenance is not automatic and if you have financial difficulties in supporting yourself then you will need to obtain advice from one of our experienced Family Law Solicitors.