What should I be concerned about after separating from my partner or spouse?
The things that separated couples are most concerned about are:-
- Arrangements for the children of the relationship;
- Arrangements for dividing the property of the parties;
- Financial support paid by a party to their former partner because they are unable to adequately support themselves – known as ‘spousal maintenance’.
The Family Law Act says a court may not make orders about property and maintenance issues for de facto couples unless the couple were in relationship for two years, or a child was born of the relationship.
A married couple can bring property proceedings and an application for spousal maintenance at any time after separation, unless they have obtained a divorce. A married couple has 12 months from the date of their divorce to bring property and spousal maintenance proceedings.
If the marriage was shorter than 2 years, the parties must either attend a family counsellor to discuss a reconciliation, or they must seek leave from the Court to proceed with a divorce.
Do I have to attend compulsory dispute resolution?
Before you issue court proceedings, you ought to try to resolve your family law dispute.
In children’s matters, the issuing party must provide a s60I Certificate to the Court at the time of issuing initiating documents. The s60I Certificate states whether or not the parties have attended mediation and if so, whether or not the mediation was successful.
There are important exceptions to obtaining a s60I Certificate; for example, where one party has engaged in family violence, or where the issuing party has made an application for the recovery of a child.
What is property?
What are the types of things that couples can divide up:-
- Residential properties, commercial properties, water rights
- Pets (yes, pets are regarded as property!)
- Cash money, term deposits, shares, interests in a business, partnership, company or trust
- Cars, motorbikes, bicycles etc.
Some of these things may have a loan or mortgage attached to them.
Also relevant are lottery wins, inheritances, personal injury payouts etc.
How does my lawyer work out what I am entitled to?
We require the following information from you at the first interview to provide you with legal advice:-
- A list of you and your partner’s current assets and liabilities
- Details of any financial contributions made during the relationship including:-
- your income and your ex-partner’s income during the relationship,
- any gifts to you or your ex-partner,
- any payouts to you or your ex-partner (eg. worker’s compensation, termination of employment etc),
- any withdrawals from you or your partners’ superannuation,
- any history of gambling, drug use, excessive alcohol consumption or exorbitant spending by you or your partner,
- details of you or your partner’s business dealings or involvement with a partnership, trust or company,
- Details of any nonfinancial contributions made during the relationship including:-
- who had care of the children when they were infants,
- who maintained the house,
- who cooked,
- who did the washing,
- who drove the children to and from school,
- who took the children to extra-curricular activities,
- who went to parent-teacher interviews,
- who helped the children with their homework,
- were there any renovations or improvements made to the matrimonial home or any investment properties and if so, who was responsible for those
- who did the outside jobs such as mowing, weeding, constructing the garden etc.
- The following details about both of you:-
- your age;
- your income earning capacity
- your current health,
- any health concerns for the future,
- who has the care and support of the children and
- information about new spouses including how much they earn and their financial circumstances
Your lawyer will consider all of the above information as it applies to you, apply their knowledge of the current case law and provide you with an estimate of how much you might be entitled to if you were to run your case in court.
Your lawyer will also provide you with a range of options to consider which will not necessarily involve going to Court.
What are the best arrangements for our child?
The main questions parents should consider in family law proceedings are:-
- who will make decisions about the child (eg. where they live, which school they attend, their religion etc.);
- who will the child live with and how much time will they spend with the other parent;
- how will the parents communicate with each other.
The Court will always consider what is in the best interest of the child in making a decision about a child.
Children have the right to have a meaningful relationship with both parents, and be protected from harm.
Family violence and child abuse allegations are not uncommon in family law matters. Such allegations may have a bearing on where the children live and whether contact with a parent is supervised.
What does my child think and will this be useful?
The court may consider the views of the child but this depends a lot on the individual’s age and maturity.
What does an independent children’s lawyer do?
Sometimes an independent children’s lawyer will be appointed at the request of a party to represent the best interests of the child in proceedings. The independent children’s lawyer is not the child’s personal lawyer and does not have to act on the child’s instructions. The independent children’s lawyer will advise the Court about what is in the best interests of the child.
What is a child inclusive conference?
If the matter goes to Court, the Judge may order a section 11F report. This means that the child/ren and the parents will attend a child inclusive conference with a family consultant (a qualified social worker or psychologist) to provide information about:
- The issues in dispute
- Past and present parenting arrangements
- The parenting capacity of each party
- The relationships of children with significant people
- The views and wishes of the children
- Any risks to the children.
The Judge will then use this information to decide what contact the parents should have with the child.
The Court can also order a family consultant to make a report. The consultant will interview each parent and the child individually, unless the child is young or immature. The family consultant will watch the child and the parents together. A report is then prepared for the Court and a copy is given to the parties.
In some cases, where the parties have limited financial means, the Court may order a report, however, as a general rule, if the parties can afford legal representation, then the Court will order the parties to pay for a private report.
What happens if my ex takes our child interstate or overseas and refuses to return.
If your ex takes your child to another town a long way away, or interstate or overseas, then you should ask them to return the child immediately.
If they do not return with the child, you ought to bring an immediate application for a recovery order in the Federal Circuit Court or Family Court. The longer you delay, the less prospect you have of gettting an order for the child to be returned to you.
You will need to sign an Affidavit with information about what steps you have taken to get the child back, why it is in the child’s best interests to be returned to you, and the likely impact on the child if the recovery order is not made.
We suggest that you contact one of our lawyers immediately if this has happened to you.
I have further questions….
We offer family law consultations at our Bendigo and Castlemaine offices. We encourage you to contact us to make an appointment regarding your family law matter today.