Level 9, 179 Queen Street, Melbourne 3000 Victoria, Australia
Tel: + 613 9670 7211 Fax: +613 9670 0785 DX:217
ABN 83 312 693 974
famlaw@stedmancameron.com.au
Family Law Handbook
Although the Family Law Act has been in operation for at least two decades, mysteries and misunderstandings still surround this contentious area.
When the Family Law Act was introduced in January 1976, it revolutionised the divorce process in Australia.
People wanting to end their marriage were no longer required to prove fault on the part of their spouse for acts of adultery, cruelty, desertion or drunkenness. The Act introduced the so called "no fault" divorce in an attempt to remove, or at least reduce, the public trauma, guilt and shame which had been associated with marriage breakdown.
However, misunderstandings and misinformation persist. Our clients regularly recount the well meaning, but inaccurate, advice of friends who invariably know someone who never had to make their children available for contact, or someone else who says that wives are always allowed to keep the house or ... any number of ill-formed opinions.
We have put together this handbook to help dispel some of these myths and give you an insight into your rights and the obligations which can result from the breakdown of your relationship. This Handbook is not intended to provide a comprehensive explanation of the law. The handbook is correct at the date of printing. The law is constantly changing and each person's circumstances are different.
We recommend that you seek legal advice from Nicola Watts or Kelly Nolan, Family Lawyers at Stedman Cameron, who can advise you of your rights and obligations according to the current law and your own individual circumstances.
Marriage breakdowns and counselling
Marriage breakdowns create difficult decisions about relationships, children and finances. At such a traumatic time, it is normal for people to be confused and concerned about their future.
From the outset, it is important to be sure whether or not your relationship is truly over. At Stedman Cameron, all clients are advised of counselling services and other professional help that is available to assist in resolving non-legal problems.
The following Marriage Counselling Organisations are approved under the Family Law Act.
LIFEWORKS
Level 5, 227 Collins Street, Melbourne
Telephone: 9650 2419 Facsimile: 9650 8440 Also at Bayswater, Brighton Broadmeadows, Camberwell, Frankston, Geelong, Lilydale, Moonee Ponds, Preston, Sunbury, Wangaratta, WerribeeCAIRNMILLAR INSTITUTE 993 Burke Road, Camberwell
Telephone: 9813 3400 Also at Berwick, Doveton, Endeavour Hills, PakenhamCENTACARE CATHOLIC FAMILY SERVICE
Cabrini Centre Care, 1-3 Valetta Street, Malvern Telephone: 9576 2377 Facsimile: 9576 2343 Also at Dandenong, Footscray, Geelong, Mitcham, North Melbourne, Rosebud & Sale.DRUMMOND STREET RELATIONSHIP CENTRE 195 Drummond Street, Carlton Telephone: 9663 6733 Facsimile: 9639 3363
RELATIONSHIPS AUSTRALIA
Melbourne Centre & Headquarters Suite 307, 1 Princess Street, Kew Telephone: 9205 9578 Facsimile: 9205 9578 Also at Ballarat, Croydon, Eltham, Greensborough Narre Warren, Shepparton, Sunshine & TraralgonDespite the inevitable bitterness and aggravation that attaches to so many marriage breakdowns, less than 5% end in trials. The Family Court encourages people to reach a negotiated settlement at various stages.
The Family Court requires people involved in litigation to attend conferences. These conferences are conducted in a manner designed to promote negotiation and help people reach their own decisions.
As an alternative to litigation, it is becoming common place for Solicitors themselves to arrange round table conferences to resolve litigated matters. Our experienced Solicitors are able to evaluate the facts of the case and can predict the likely range of results that could be expected should the matter proceed to Court.
There will always remain however some people who will want their day in Court. But remember there are no "winners" in Family Law litigation.
Mediation is a relatively new alternative to resolving Family Law disputes. People are assisted by an independent Mediator to jointly solve their problems, consider settlement options and negotiate an agreement. The Mediator assists, but does not take sides and cannot impose decisions.
Most often people resent decisions being imposed on them by the Courts. In mediation you make your own decisions. For more information on Mediation services contact:Family Mediation Centre
PO Box 2131, Moorabbin Telephone: 9555 9300 Facsimile: 9555 1765 Relationships Australia Suite 307, 1 Princess Street, Kew Telephone: 9205 9570 Facsimile: 9205 9578The Family Law Act introduced "irretrievable breakdown of marriage" as the single ground, or basis, to obtain a divorce. To establish "irretrievable breakdown", a husband and a wife have to live separately and apart for at least one year.
This can be established even when both parties have continued to live under the one roof, albeit separately, provided evidence of the living arrangements is corroborated by an independent witness.
In granting the divorce, the Court must also be satisfied that proper arrangements are in place for any children of the relationship.However, a divorce application is not seen by the Court as the appropriate forum to resolve disputes about children.
"Divorce" in Australia has a different meaning to the American concept of divorce.Here it is simply the dissolution of the marriage and nothing else.Adjustments of property interests and arrangements for children are dealt with separately and are not part of the divorce application.
The Law relating to children is based on the simple and common sense principle that the "welfare of the child is the paramount consideration".
The Act now refers to the child's right to contact with a parent, rather than the parent's right to contact with the child.
The doctrines of custody and access "rights" have been replaced by notions of "parental responsibility" and obligations.The changes in terminology were designed to refocus the minds of warring parents and to move from notions of a parent's right to custody, to a notion of parents adopting responsibilities.
Save in exceptional cases, parents generally retain joint responsibility for the children's long term care, welfare and development (previously known as guardianship). This involves decisions about matters like schooling, religion and major health issues.Parents formerly referred to as "custodians" are now known as "residence parents". The Court will make an order for residence, which determines who the child or children will live with.
Orders are also made for the responsibility for day to day care of the child or children. Generally, that responsibility is conferred upon the residence parent.
Similarly, there has been a conceptual shift in respect to a parent's contact (formerly access) with the children.
The Act now refers to the child's right to contact with a parent, rather than the parent's right to contact with the child. The Act also recognises the child's right to contact with "significant other persons", such as grandparents.
In some cases, a child's right to contact needs to be looked at in light of a need to protect the child, in which case supervised contact may be ordered. For younger children, particularly toddlers, shorter, but more frequent contact can be ordered. Once children are of school age, alternate weekend contact, together with some school holiday time, is the most common arrangement.
As to just what contact there should be, there are no hard and fast rules. Particulars of contact can vary in each case, depending on the parties' circumstances.
We now refer to "child support" rather than "child maintenance". This is as a result of the enactment of the two Child Support Acts (one for collection and one for assessment of child support), in 1988 and 1989 respectively.
The child support scheme operates independently of the Family Court and uses the Child Support Agency to assess and collect child support on a national basis.
The scheme was introduced in two stages.Stage one commenced in June, 1988 and enabled the Child Support Agency to register and collect child support from contact parents and/or their employers. The more significant stage two began in October, 1989 and empowered the Agency itself to assess the child support to be paid in accordance with a statutory formula.
The basic formula is very simple: a non-residence parent is obliged to pay a fixed percentage of their "adjusted income" towards the maintenance of the child or children. "Adjusted income" is the payer's taxable income for the relevant year, less an amount equivalent to one year's Social Security payments.
For one child the fixed percentage of adjusted income is 18%, for two 27%, for three 32%.
The residence parent's income will not be brought into account until it exceeds the level of average weekly earnings.The Child Support formula is applied differently where a contact parent has the child or children in his or her care for in excess of 109 nights per year (known as "substantial" contact), and differently again where residence is "shared" (ie at least 146 nights with each parent).
There is a right of review and appeal against assessments. The review process takes place within the Agency at the Child Support Review Office. Appeals go from there to the Family Court.
Parents may agree on their own private arrangements for child support.This can be particularly practical where the contact parent is self employed or has an income which varies substantially from year to year. We always recommend that clients formalise these arrangements in the form of a written agreement and that this agreement be registered with the Child Support Agency.
The Child Support Scheme applies equally to the fathers of children born outside of marriage, the result of short term relationships or even brief encounters. Once the mother can prove parentage (and with DNA testing this can now be established to more than 99% certainty), the father has to pay the same percentage of his salary in child support as would a separated married man.
Of course, if the children live with the father, the Child Support Agency will apply the statutory formula to the mother's income to assess her liability to pay Child Support to the father.
The powers of the Agency to collect child support are very wide. Many parents have Child Support payments deducted from their wages by their employer. Others, and particularly non-PAYE employees, find their Tax refund cheque is intercepted by the Child Support Agency and withheld to satisfy arrears. The Agency also has the power to garnish funds from bank accounts.
Under the Family Law Act both husbands and wives are liable to provide financial support for the other to the extent that one needs support, and the other has the capacity to pay. In the late 20th century it is so common for women to be in the work force that separated wives are virtually expected to seek employment following separation if they are not already working.
Long term spousal maintenance orders (or alimony as it is known in the United States of America) are relatively uncommon in Australia these days.
In determining the level of maintenance to be awarded to a spouse, the Registrar has wide discretion. The Act directs the Court to consider several factors such as the age of the parties, their health, their qualifications for gainful employment, their other sources of income and their responsibility for the children.An important factor is the need to preserve the position of the spouse who wishes to continue her or his role as homemaker and parent.
At the end of the day, however, a spousal maintenance applicant must satisfy the Court as to his or her need for maintenance (taking into account the factors set out above) and the capacity of his or her spouse to meet those needs.In looking at this, the applicant's Social Security entitlements are disregarded, the rationale being that spouses, rather than the taxpayer, should meet those needs if possible.
Division of matrimonial property
The Family Court approaches a property case in three stages. Firstly, the Court will seek to establish the total assets and liabilities of both parties. This will typically comprise the home (usually subject to a mortgage), the cars, the furniture and any investments or savings (we cover the issue of superannuation separately).
Often, family trusts and companies will be the owners of certain assets. To the extent that these entities are controlled by one or both of the parties, the Court includes their assets as part of the "pool of assets".
The second step is to establish the contributions of each of the parties to the acquisition, maintenance and improvement of the assets.Contribution can be of a direct financial or non-financial nature or be a contribution in a party's capacity as a homemaker and parent. The Court recognises that domestic chores and child rearing duties are comparable to the contribution of going to work each day and earning the wage that pays the mortgage and the bills.
The Court does recognise disproportionate contributions where one party owned valuable assets prior to the marriage or inherited assets during the marriage. The Court may also recognise that a party, using particular skills and expertise, has been able to build up an asset, for example the goodwill of a business.
Before the final division of assets is made the Court makes a third assessment. The Judge is required to look at the comparative needs of the parties to see whether a further adjustment should be made. This is often termed the "needs element" in a property case. This encompasses matters such as the parties' respective incomes, who the children will reside with and the age and health of the parties.
It is this needs element that often leads to a "loading" in favour of the residence parent, particularly if he or she is not working.
It is fundamental to the philosophy of the Family Law Act that, as far as possible, financial relationships between the parties should be concluded and that people should be allowed to get on with their lives.Final orders in property proceedings are just that - final. There can be no more subsequent property settlement applications (except if cohabitation resumes or if the orders are set aside for some exceptional reason such as fraud).
Since December 2000, it has become possible for parties to contract out of the property provisions in the Family Law Act by signing a "financial agreement".
These agreements can be entered into:Financial agreements are more common amongst people who are entering into their second marriage, who may have gone through the process of litigation, and are anxious to preserve what they retained from the first marriage.
People entering into financial agreements must seek independent legal advice as to the rights and obligations which flow from such an agreement.
The Court generally takes the view that contributions made directly or indirectly to the superannuation are monies which would otherwise have come into the household.One aspect of property settlements that causes considerable difficulty is superannuation. It is difficult for many to accept that their spouses are entitled to be compensated for something they have not directly contributed to, and over which they do not have control at the time of the case.
The Court generally takes the view that contributions made directly or indirectly to the superannuation are monies which would otherwise have come into the household.
There are currently six ways in which the Family Court can deal with a superannuation entitlement:The latter approach has been the most common.
Legislation has now been passed so that, from 28th December 2002 it will be possible to allow superannuation to be split by the superannuation funds so that each party becomes a beneficiary.This will get around the situation where a wife may receive the vast majority of the current assets (such as the house) and the husband retains his superannuation entitlements which will not vest for many years.
Division of property of domestic partners
If your domestic relationship has ended, an application to a Court for an Order of division of property under the Property Law Act must be made within two years after the date of separation.
In Victoria there are two ways to seek a property settlement against a partner with whom you lived but to whom you were not married.The first is under the Property Law Act 1958. Since the passing of the Statute Law Amendment (Relationships) Act 2001, the Property Division Provisions of the Property Law Act now relate to property of partners who are living together or have lived together as a couple on a genuine domestic basis, irrespective of gender.
The Property Law Act provides for the division of real and personal property.
You can ask the Court to make an Order with regard to division of property if:If your domestic relationship has ended, an application to a Court for an Order of division of property under the Property Law Act must be made within two years after the date of separation.
In certain circumstances a Court may grant leave to a domestic partner to apply for an Order beyond two years after the date of separation.
The second way to seek a property division between domestic partners is to prove the existence of a trust by which the former partner holds all or part of his or her assets for the benefit of the applicant.There are two types of these constructive trusts. The first requires proof of common intention that the asset is to be held in certain proportions. The second type of constructive trust does not rely on common intention but rather on a general doctrine of unconscionability.
If an applicant can establish that it would be unconscionable for the assets to be held by their registered legal owners, then the Court will adjust those interests.
As with financial agreements for parties to a marriage, the major benefit of cohabitation agreements for those in a domestic relationship is that they give a clear indication of the assets owned prior to the relationship and the intended division of those assets should the relationship end.The Court has a wide discretion to give the agreement as much or as little weight as it considers proper in making an adjustment in ownership of assets. The Court may override the agreement if it considers that not to do so would be unjust or inequitable.
The Crimes (Family Law) Act was enacted with the aim of providing a speedy and inexpensive means of obtaining protection against violence or threatened violence within the home. Violence can be physical, verbal or emotional.
Protection can be obtained through the local Magistrates Court where you can obtain an "Intervention Order". Once granted and served on the other party, this Order gives the Police the power to arrest the other party if the Order is breached.
The Order may restrict the other party in several ways. It may:
Victims of domestic violence may get advice, counselling or arrange emergency accommodation through the following organisations:
Women's Domestic Violence Crisis Service of Victoria (Refuge Referrals)
Telephone: 9373 0123 or 1800 015 188 Domestic Violence and Incest Resource Centre Telephone: 9486 9866Women's Information and Referral Exchange Telephone: 1300 134 130
The purpose of making a Will is to set out how you wish all your property (your estate) to be distributed after your death.
A poorly drafted will it can be very difficult to know exactly what was intended to happen to the estate.
Your will is the expression of your last wishes about how your estate is to be divided, and that last wish might be to no avail if your Will is poorly drafted or otherwise does not comply with the requirements of making a valid Will.
In Victoria, divorce affects certain provisions of any existing Will, but does not revoke the entire Will.
You should periodically consider whether your existing Will still reflects your wishes.This is especially relevant if your living circumstances change (for example, if you marry, have children, separate or divorce).
If you marry, your Will is revoked (except when your Will is made before marriage and you then marry a person who is named as a beneficiary in your Will).
Separation from your spouse does not revoke your Will.
In Victoria, divorce affects certain provisions of any existing Will, but does not revoke the entire Will.
Failing to update your Will may result in an outcome which is not in accordance with your current wishes.
In Victoria, domestic partners are now provided for in the same way as spouses under the rules relating to intestacy (that is, dying without leaving a Will).
If you have lived with your partner for less than two years, you are not considered a "domestic partner" by the rules of intestacy (unless you and your partner had a child together and that child is under 18 years of age at the time of your partner's death).
If you and your partner are not "domestic partners" according to the above definition, and if you wish to provide for each other when you die, then you should both ensure that you have a valid Will.
Failure to leave a valid Will results in the estate being administered according to the rules of intestacy, which often does not accord with the known wishes of the deceased. Further, it can lead to significant tax liability for the estate in some cases.
CHILD SUPPORT AGENCY General enquiries 131 272 Complaints service 132 919 Freefax for complaints 1800 062 610 Change of Assessment team 131 141Child Support Agency OnLine:
http://www.csa.gov.au/
LIFEWORKS
Level 5, 227 Collins Street, Melbourne Telephone: 9650 2419 Facsimile: 9650 8440 Also at Bayswater, Brighton Broadmeadows, Camberwell, Frankston, Geelong, Lilydale, Moonee Ponds, Preston, Sunbury, Wangaratta, WerribeeCAIRNMILLAR INSTITUTE
993 Burke Road, Camberwell Telephone: 9813 3400 Also at Berwick, Doveton, Endeavour Hills, Pakenham.CENTACARE CATHOLIC FAMILY SERVICE
Cabrini Centre Care, 1-3 Valetta Street, Malvern Telephone: 9576 2377 Facsimile: 9576 2343 Also at Dandenong, Footscray, Geelong, Mitcham, North Melbourne, Rosebud & Sale.DRUMMOND STREET RELATIONSHIP CENTRE
195 Drummond Street, Carlton Telephone: 9663 6733 Facsimile: 9639 3363RELATIONSHIPS AUSTRALIA
Melbourne Centre & Headquarters Suite 307, 1 Princess Street, Kew Telephone: 9205 9578 Facsimile: 9205 9578 Also at Ballarat, Croydon, Eltham, Greensborough Narre Warren, Shepparton, Sunshine & TraralgonFAMILY MEDIATION CENTRE
PO Box 2131, Moorabbin Telephone: 9555 9300 Facsimile: 9555 1765RELATIONSHIPS AUSTRALIA
Suite 307, 1 Princess Street, Kew Telephone: 9205 9570 Facsimile: 9205 9578WOMEN'S DOMESTIC VIOLENCE CRISIS SERVICE OF VICTORIA
(Refuge Referrals) Telephone: 9373 0123 or 1800 015 188DOMESTIC VIOLENCE AND INCEST RESOURCE CENTRE
Telephone: 9486 9866WOMEN'S INFORMATION AND REFERRAL EXCHANGE
Telephone: 1300 134 130
Level 9, 179 Queen Street, Melbourne 3000 Victoria, Australia
Tel: + 613 9670 7211 Fax: +613 9670 0785 DX:217
ABN 83 312 693 974
famlaw@stedmancameron.com.au