Author: Vanessa Mathews

There are advantages to going through dispute resolution. Even though it is mandatory you should approach your session with an open mind and a positive attitude. While the goal is for you and your former partner to reach an agreement, you can still experience some benefits even if you fall short of reaching an agreement.

Simply going through this process often helps former partners communicate better, understand the other’s position better, and can sometimes turn a tumultuous situation into a more amicable one. So, even if you fail to reach an agreement, the mandatory dispute resolution may still be beneficial.

After your attempt at family dispute resolution you will be issued a certificate. Even if you fail to reach an agreement, you will still need to provide the court with the certificate, which memorializes your attempt at resolution. Once the court has received the necessary certificate you may litigate your child related issues in court and the judge will ultimately made the necessary decisions.

Unfortunately, domestic disputes can lead to feelings of anger and resentment, which can manifest itself through violence. Sometimes violence is even the reason couples are seeking a divorce. If you and your former spouse have a particularly tumultuous relationship you may feel as though sitting in the same room and being forced to talking about your issues could escalate into violence.

So what do you do if dispute resolution is a mandatory step before you can apply to the court for child related orders?

The requirement to undertake dispute resolution is waived in situations where there has been a history of, or there exists a risk of, family violence or child abuse. The court has no expectation that you will attend dispute resolution if your safety is at issue in any way.

If your situation is not extreme enough to call for a waiver of this requirement, the logistics of your dispute resolution session may be altered to accommodate your apprehension. For instance, it may be possible to conduct the session with the parties in different rooms rather than siting face to face.

Your safety prior to, during, and after dispute resolution is of paramount importance. If you have any concerns about violence you should notify your family dispute practitioner or a staff member at the dispute resolution center immediately. You should also be vocal about this concern with your lawyer if you have one. Do not be afraid to bring this up – your safety is nothing to be shy about.

While there is no inherent right for grandparents to spend time with or care for their grandchildren, the Family Law Act does provide some protection for grandparents. When it comes to settling custody disputes, the court is always going to act in the best interest of the child at heart. Sometimes, this will require removing a child from the care and custody of a parent and placing that child with a grandparent. Although rare, circumstances do exist that warrant this type of action.

There are two ways in which a grandparent may seek a parenting order. The first is by making an application to communicate with and spend time with their grandchild. This type of application may be appropriate where a parent has chosen to sever our relationship with the grandparent and is not allowing the grandparent to spend meaningful time with the grandchild. A grandparent may make this application regardless of whether the parents are separated or not.

The second action available to grandparents is to apply for an order seeking parental responsibility for the child. This action will only be appropriate in extreme circumstances, where both parents have proven they are unfit or unwilling to care for the child.

Grandparents who are concerned about visitation rights may rest assured that they are permitted to take action seeking visitation, and sometimes-even custody, of their grandchildren. The guiding principle in custody actions is ‘what is in the best interest of the child,’ and the relationship between a child and their grandparent will certainly be considered. If the grandparents had historically been present and involved in the child’s life the court will be inclined to allow the grandparent to continue this relationship despite the breakdown of the parent’s relationship and their subsequent refusal to let the child spend time with the grandparent.

There is a strong preference in Australia for parents to reach an agreement regarding custody without resorting to litigation. In the hope of achieving this goal, parents are required to attend dispute resolution and make an effort to resolve any custody issues on their own.

If you are able to finalize custody through a parenting order or parenting plan, without going through litigation, your child’s wishes should certainly be a factor in how you determine custody. The guiding light when it comes to children’s issues is that you (and the court) should act in the best interest of the child. If your child voices a preference to spend more time with one parent, or there is a clear bond between the child and one parent, this should certainly be considered while you work out custody issues.

Both parents should work to reach an agreement that suits the needs of the child, and considering the child’s wishes is often the best way to determine what the best interests of the child are.

What if you aren’t able to reach an amicable custody arrangement and you require the court to determine custody? Will the court entertain your child’s preference to live with one parent over the other?

The answer is yes. The court must consider the views of the child in determining the child’s best interest. While it is not a requirement for a child to disclose his or her wishes, should they choose to express them, the court must consider them. However, simply because the child voices a preference for one parent, does not mean that parent will automatically be given preference in the custody dispute. The court will balance the child’s wishes along with their credibility. A child’s age and maturity are relevant factors in determining credibility.

So whether you plan to reach an amicable agreement with your ex-spouse, or if you must resort to litigation to decide on a custody arrangement, the child’s wishes are of the utmost importance. Considering the child’s views is a necessary step in determining the best interest of the child.

State Central Authority & Papastavrou [2008] FamCA 1120

If there exists clear evidence of grave risk of harm to the child should the child be returned to its home country, the court may prevent the child from being returned.  This is a high standard to meet, and will only apply in exceptional circumstances.

In the Papastavrou case, there was an Australian mother and a Greek father who had two children, both born in Greece. The mother, who was experiencing emotional and medical problems, was instructed by her doctor that she should return to Australia because she required the physical and emotional support of her family.

During the proceedings regarding whether the children should be returned to their home state of Greece, the mother put on compelling evidence of family violence. The evidence showed that the father repeatedly abused her, occasionally in front of the children, and had abused one of the children as well. After hearing the evidence the judge decided to reject the father’s application seeking to have the children returned to Greece.

The evidence allowed the judge to conclude that the father’s history of violence constituted a future risk of harm to the children. The mother convinced the judge that the Greek authorities would do little or nothing to protect her and the children, as they had failed to take action when she had called them in the past. The mother also provided the court with expert testimony discussing inherent issues with laws enforcing domestic violence in Greece. Additionally, the mother had developed a medical condition making her more vulnerable to future violent attacks, and this also compounded the impact future violence may have on the children.

In this case the judge was able to ultimately conclude that there was in fact a serious risk of harm to the mother and children if they were to be returned to Greece, and denied the father’s request for such.

Goode & Goode [2006] FLC 93-286

This is a case illustrating the importance of having evidence if alleging that acts of family violence have occurred.

A husband and wife separated after ten years of marriage in 2006. The children, ages 2 and 8 lived with their mother and spent time with their father alternating weekends. The father argued that the mother was preventing the children from spending additional time with him, while the mother argued that the parties had agreed to this arrangement. The mother sought an order finalizing this alleged arrangement, while the father sought an order for an equal share care arrangement

The mother alleged that the father had engaged in family violence during their relationship.  Normally, in custody disputes, the judge must apply a rebuttable presumption that it is best for parents to have equal shared parental responsibility. However, a major exception to this presumption is where family violence has occurred.

In this case, the judge was unable to conclude that the allegations of family violence were true. Because there was a dispute as to whether the violence occurred, the judge was conflicted as to whether the aforementioned presumption should apply.  The trial judge ultimately concluded that the allegations alone did not satisfy that violence had occurred. The mother lacked sufficient evidence to prove any acts of violence, and her words alone were not enough for the judge to be satisfied on reasonable grounds that violence had occurred.

The issue of alleged violence failed to make a major impact on the outcome of the case; the court concluded that the presumption should not apply in cases where there is even a dispute regarding whether family violence occurred. However, this case still illustrates the principal that when alleging family violence, you must be prepared to show evidence that allows the judge to make a finding that family violence did in fact occur.

a finding that family violence did in fact occur. The trial court issued an order allowing the children to live with the mother, but spend time with the father on alternating weekends, as well as Monday and Tuesday evenings, and on school holidays. Had there truly been a history of family violence, it would not be safe or appropriate for the children to spend that much time unsupervised with their father.

Therefore, if there is a history of family violence in your situation, be prepared to put on evidence that allows the judge to agree with your allegation.

Whether you were party to a valid marriage or a de facto relationship, you are entitled to property division. While the courts maintain broad discretion with regard to property division, they strictly adhere to the following four-step process to determine who gets what.

1. Identify/value the property – includes all assets and liabilities
2. Consider contributions of the parties – includes financial and non-financial contributions
3. Consider relevant factors – including but not limited to age, health, income, an standard of living of the parties
4. Ensure order is just and equitable – the order must be fair

Generally, the courts will look to split the net asset pool of the parties equally, unless while applying steps one through four it is apparent that an unequal split of the assets would be just and equitable.

The goal of property division is to both to allow parties to finalise their economic relationship, and also to recognise contributions to property. However, while the goal is to allow the parties to reach economic independence, a valid property order may in fact be varied under certain circumstances.

Contact the team at Mathews Family Law to speak with a family law attorney today, and discuss your family law property settlement matter.

The Family Law Act provides for property division for both formerly married couples, as well as de facto couples. There are two main goals when it comes to property division. First, this should be a step towards finalizing the economic relationship between the parties. This “clean break” principal is supported by the requirement that courts make orders that will end the financial relationship of the parties as far as practicable. Second, this process recognizes contributions to property, both financial and non-financial.

An action for property division must be brought timely. For instance, if you were formerly married you must bring any property proceedings within 12 months of when your divorce order became absolute. Alternatively, if you were in a de facto relationship, you must seek property division prior to two years after the end of the relationship

Broad Discretion

The court maintains broad discretion when it comes to making property orders. For instance, should the parties disagree as to the ownership of property, the court has the discretion to make a declaration regarding the property in question.

Even the language in the Family Law Act speaks to this notion that the court has an abundance of discretion; the exact language expresses that the court may make “such order as it considers appropriate.” This broad discretion is subject to seven restrictions/considerations the court must contemplate. These considerations listed below are enumerated in the

Family Law Act.

• the direct and indirect financial contributions of the parties
• the non-financial contributions of the parties
• contributions to the welfare of the family, including contributions as homemaker or parent
• the effect of any order on the parties’ income earning capacity
• the list of considerations in s 75(2) and 90SF(3) of the Family Law Act
• any other order made under the Family Law Act affecting a party or child of the marriage or de facto relationship
• any child support payable, or likely to be paid in the future

Finally, the last bit of guidance that the Family Law Act offers to the court, is that the court shall not make an order unless the circumstances indicate that it is both just and equitable to make the order.

Because the Family Law Act fails to provide strict guidelines with regard to property division, and the courts are given such broad discretion, the courts have adopted a four-step process to apply to property orders. First, the court must identify and value the property, then consider contributions of the parties, then consider the factors listed above, and finally consider whether the order is just and equitable.

Step One: Identify and Value Property

The court must identify and value a rather encompassing pool of property, which includes real property, assets, liabilities, financial resources, property presently possessed and property expected, as well as property disposed of. The court must also identify and value business interests, licenses, permits and professional qualifications, inheritances, insurance policies, among many other types of property. As you can see, the type of property is pretty much anything – the list is rather extensive.

Both the nature of the property as well as the value must be determined as of the date of the decision, rather than the date of separation or divorce. When determining the value of the property, the court will begin by considering the fair market value of the property. Fair market value generally refers to the amount that a willing (not anxious) purchaser who is adequately informed would pay a willing (not anxious) seller of the property. In some instances where there is a dispute as to the value of property, and the court cannot make a determination of the value, the court may order the property be sold.

Once the property has been identified and value, a simple formula is used to determine the net asset pool of the parties. The total assets minus the total liabilities will result in the net asset pool used by the court.

Step Two: Contributions

The court will consider financial contributions, non-financial contributions, contributions to the care and welfare of the family, and contributions in the capacity of homemaker or parent. Financial contributions are any monetary contribution related to acquisition, conservation, and improvement of the property and refers to contributions made before the marriage, during the marriage, and after separation. On the other hand, an example of a non-financial contribution would be where one party performs maintenance or renovations of any family asset.

Often, especially when considering long relationships, the court will make a determination that the parties contributed equally. However, each situation is unique, and may not call for a determination of equal contribution. The court can make necessary adjustments to account for your unique circumstances.

One situation that is given special attention with regard to contribution is violence. If violence during the marriage or relationship had an adverse impact on a party’s contributions to the marriage, the judge will consider this when assessing the respective contributions of the parties.

Step Three: Additional Factors

This step helps the courts in addressing the future needs of the parties. The court will consider all relevant factors, including but not limited to:

• the age and state of health of each party,
• the income, property and financial resources of each party and their physical and mental capacity for achieving gainful employment,
• responsibility for a child of the marriage who is less than18 years old,
• commitments necessary for a party to support themselves or to support any other person that the party has a duty towards,
• eligibility for a pension, allowance or benefit,
• the standard of living which is reasonable in the circumstances,
• whether the relationship has affected the earning capacity of a party and to what extent,
• if either party is living with someone else, the financial circumstances arising from cohabitating with another person,
• the terms of any Orders made in relation to the property of the parties and the terms of any binding financial agreement.

Step Four: “Just and Equitable” 

The last step in the property division scheme requires to court to ensure that the proposed order is both just and equitable. This step is intended to allow the court to take a step back from the proceedings, and a whole, determine if the order is appropriate. The order should only be finalised if it is fair for each party. What is fair for one couple may not be fair for another couple, and thus determining fairness is wholly dependent on the circumstances of each individual case.

Variations of Property Orders

Despite the objective of ending the economic ties between the parties, property orders may in fact be varied after they have been issued. Variations are only permissible under certain circumstances. The Family Law Act only allows for reconsideration of a property order where both parties have consented, or where one party makes an application and the court is satisfied that at least one of the following is applicable:

• there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence, etc.
• circumstances have arisen since the order was made that has rendered it impracticable for all or part of the order to be carried out
• a person has defaulted in carrying out an obligation imposed by the order, and as a result it is just and equitable to vary or set aside the order
• circumstances have arisen since the order relating to a child or the marriage or relationship, and hardship will occur if the order is not set aside or varied
• a proceeds of crime order concerning property of the marriage or relationship, or such an order has been made against a party to the marriage or relationship.

Should you be in a situation where you anticipate property division, the best thing for you and your former partner to do is to work through steps one through four before bringing property proceedings. This will often help you avoid having to go through litigation to arrange for your property division.

Maintenance – The Basics

Maintenance is available to those who were married, and also those who were part of a de facto couple. While there is no automatic right to maintenance, the court may choose to issue an order for maintenance if the facts indicate that it is proper. When faced with whether to issue an order for maintenance, the court will consider a myriad of factors, such as the ability of one party to pay, the standard of living of the spouses, the income capacity of the receiving spouse and whether it has been negatively impacted by the marriage, any child support being paid, and the health of the spouses.

When an order for maintenance is issued, it is intended to be temporary. The ultimate objective of maintenance is to help the financially disadvantaged party to reach a point of self-support. Most maintenance orders do not last more than three or four years, as the court ultimately wants all parties to reach a point of financial independence so the relationship can be finalised.

If certain specific circumstances have arisen since the order has been issued, the order may be varied. The court may only take this action, however, if one of the circumstances proscribed in the Family Law Act has occurred. An example of when an order for maintenance may be varied is where the cost of living has changed to justify a variation.

Orders for maintenance will terminate upon the occurrence of an event, for instance if either party dies or remarries. However, termination of an order does not affect your right to collect an arrearage.

Maintenance – The Details

When there is a disparity between parties’ income and earning capacity, the Family Law Act allows this disparity to be remedied through the something called “maintenance.” Typically, maintenance is only available for a short-term period – about three to four years. The idea behind only allowing a party to receive maintenance for a relatively brief period of time is that the maintenance payments are intended to compensate the recipient while that person takes steps to enter the workforce or re-establish him or herself.

Much like the approach to property division, the objective of maintenance is to work towards a “clean-break” between the parties. Maintenance is intended to be a temporary crutch to help the financially disadvantaged party get back on their feet and subsequently be able to independently support themselves.

An action for maintenance can be brought before divorce, after divorce (but within 12 months), even if the parties’ marriage is void, and after the breakdown of a de facto relationship. The two major limitations with regard to orders for maintenance are that you must get leave or court (special permission) to seek maintenance after 12 months of the divorce being final, and you cannot seek maintenance if there is a binding financial agreement that addresses maintenance.

Who Is Entitled to Maintenance?

The Family Law Act provides for three circumstances that warrant an order for maintenance for formerly married couples. Said circumstances are:

(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 adequate reason,

Additionally, the court must consider relevant factors in making this determination. Those factors include: the ability of one party to pay, the standard of living of the spouses, the income capacity of the receiving spouse and whether it has been negatively impacted by the marriage, any child support being paid, and the health of the spouses.

There is a similar provision regarding maintenance for de facto couples. While there is no automatic right to maintenance, one party may be liable to pay maintenance towards the other party to the extent that the party can reasonably do so and only in circumstances where the other party is unable to support himself or herself adequately. The test used by the courts is not whether the applicant is in need of maintenance, but rather if that person is in a position to support themselves with their own resources.

Types of Maintenance Orders

An order awarding maintenance can be made several ways; by consent, after a contested hearing or to meet urgent needs. The Family Law Act gives courts the authority to issue an urgent maintenance order without a detailed enquiry, which would normally be required upon application for maintenance. These cases are rare, and only exist where one party is in immediate need of financial assistance. These orders differ from regular maintenance orders and only last for a limited duration.

Another type of maintenance order is referred to as a secured maintenance order. This occurs where the court makes a requirement that a maintenance order be secured by some type of collateral. These orders minimise the risk of default, and also make the enforcement of a maintenance order easier.

Maintenance can be in the form of periodic payments, a lump sum, or use of the car or home. The modern trend is for maintenance to be issued in a lump sum amount. This is preferable because the objective of awarding maintenance is to provide the financially disadvantaged party temporary help to reach a level of self-support. Often, a lump sum works towards this objective better than periodic payments.

Varying and Terminating Maintenance Orders

Maintenance orders differ from other family law orders in that they may only be varied on limited grounds. In order to have the amount of a maintenance order increased or decreased, the following circumstances must have occurred since the order was made or last varied:

• the circumstances of a person who was benefiting from the order have changed
• the circumstances of the person liable to pay have changed
• the cost of living has changed to justify a variation
• the amount is not proper or adequate and the original order was made by consent
• material facts were withheld from the court or deemed false, and those facts affected the order issued by the court

While the court enjoys slightly more discretion when varying other orders in family law proceedings, it is clear that they may only vary maintenance orders for the reasons laid out above.

Once a maintenance order requiring the payment of a lump sum has been executed, and the money paid, that order can no longer be varied. Such orders are deemed to have completed and at that point cannot be altered.

An order for maintenance will terminate upon the happening of various events. It will terminate at a time prescribed in the order, when the order is discharged, when one of the parties dies, or when a party remarries. However, it is important to keep in mind that once a maintenance order terminates, your rights to collect arrears do not also terminate. If you are owed maintenance, you may still collect it despite the fact that the order is no longer in affect.

Divorce – The Details

Australia does not recognize “fault” based divorces; rather one must show that the marriage has broken down irretrievably. One may only show such a break down by establishing that the parties in fact separated, and have lived apart for at least 12 continuous months prior to filing an application for divorce. Bear in mind that the day the parties separate is not counted in the 12 month calculation. Thus, the application for divorce may not be filed until twelve months and one day have passed since separation.

While the above requirements seem fairly straightforward, a lot of questions can arise with regard to divorce. This article is designed to give you an in depth look into all of the issues surrounding divorce and answer any questions you may have.

What constitutes separation?

First, showing a physical separation between the parties for the specified time period is not enough to establish legal separation. Legal separation is more than mere physical separation, and must also evidence a breakdown of the marital relationship.

Whether parties are actually separated is going to differ from case to case, and is largely a question of fact. The law requires a substantial breakdown of the marital relationship be shown, but there is no further clarification as to what exactly that means. Australian courts have carved out three elements that are required in order to establish a valid legal separation.

• Intent. Both parties must intend to either sever or not resume the marital relationship.
• Action. The parties must act on their intent, or act as though the relationship has ended.
• Unilateral Action. If only one party considers the relationship has ended, that party must communicate such to the other party.

You may have noticed that physical separation is missing from the above elements. Does that mean that you can have a valid legal separation while still living in the same home? Surprisingly, the answer is yet. The Family Law Act of 1975 addresses this issue head on and specifically states that a separation can exist even where the parties have continued to reside in the same residence.

Bear in mind however, that courts are cognizant of false claims of separation so it is advised that the parties have evidence to corroborate that they are separated despite living under the same roof. The aforementioned elements of intent and action must still exist, so if you chose to remain roommates while separated, make sure you can still prove both. Also, you will have to submit an affidavit which details the arrangements you have made with regard to where each party sleeps, the extent of household services rendered, if there are separate bank accounts, etc. You are also required to have a witness, such as a family member, friend, or neighbor submit an independent affidavit to corroborate your separation.

Remaining in the same house during your separation may have some benefits, for instance, it is less expensive, and if you have children it will be less disruptive on their lives. However, if you chose such an arrangement you must be prepared to disclose personal information such as sleeping arrangements to the court in your affidavit.

What about the resumption of cohabitation?

Say you separate, and then a few months into your separation you and your ex decide to try and make things work. You move back in with your ex and give it a shot. What effect does this have on your otherwise valid separation?

First, resuming cohabitation is not as easy as simply moving back in together – as we discussed previously, you can still be legally separated and living under the same roof. In order for cohabitation to affect your separation, your new relationship needs to look similar to the way it did when you were married. For instance, simply moving back in together will not be enough to establish the status of resumption of cohabitation, this only exists when the relationship mirrors, or is substantially similar to your previous relationship. Additionally the occasional slip up, or casual acts of intercourse will not be enough to establish a resumption of cohabitation.

The major thing to keep in mind regarding resumption of cohabitation is how long the cohabitation lasts. Should your reconciliation last less than three months, you are permitted to count the time you were separated prior to getting back together in calculating the twelve months of separation required before being eligible to apply for a divorce. On the other hand, if your reconciliation lasts for three months or longer, you must begin a new twelve-month period of separation before you may file an application for divorce.

If you resume cohabitation after you have already filed for divorce, it may be grounds for the court to refuse your application. The court will look at your relationship as of the date of the hearing (not the date you filed your application), to determine if the application should be denied based on reconciliation. The party wishing to show the reconciliation must bring evidence in support of her argument. However, a reconciliation after filing for divorce does not mean your application will automatically be denied. The court will look at your unique circumstances and make a decision based on such.

How do I apply for divorce?

After you have been legally separated for twelve months, you, your partner or both of you jointly may file for divorce. However, the court will only entertain an application filed by a party who is a citizen of Australia, has been an ordinary resident in Australia for at least twelve months prior to filing, or is domiciled in Australia.

The actual application form can be downloaded at www.fmc.gov, and may be filed in the Federal Circuit Court in all states and territories. However, in Western Australia your application must be filed in the Family Court of Wester Australia. Should you prefer to have a lawyer apply for a divorce on your behalf, go to www.divorce-online.com.au.

If you and your ex are not filing jointly for divorce, but rather you are unilaterally filing the application, you will need to serve your ex spouse with the following documents.

• A sealed copy of the application for divorce
• A copy of the brochure Marriage, Families and Separation
• The form of acknowledgment of service
• Copies of any additional documents filed with the court
• If served by post, a stamped self addressed envelope

There are two ways in which you can effectuate service; you can do so by post, or personally by a person other than yourself who is over the age of 18. If you are serving someone in Australia, you must do so 28 days prior to the hearing date. If service is taking place outside of Australia then it must take place at least 42 days before the hearing. Additionally, if you know your ex spouse is represented by a lawyer, you should check with their lawyer as they may have been instructed to accept service on their client’s behalf.

If you are unable to locate the person you wish to serve, the court can either permit substituted service or dispensation of service. In either case you will need to apply this type of service, and submit an affidavit explaining why the respondent cannot be located. The court will only grant your application if it is satisfied that you have taken the appropriate steps to locate the respondent prior to filing an application for substituted service or dispensation of service.

What happens at the divorce hearing?

Once you have successfully submitted your application for divorce, and served your ex spouse, there will be a hearing. If you filed your application for divorce jointly the hearing will take place within 28 days of filing, otherwise the hearing will take place within 42 days after the filing (56 days if the respondent is not in Australia).

If your application for divorce is successful, the court will issue an order for divorce. This order will automatically take effect one month after the order is granted. Should reconciliation take place after the order is issued but prior to the order taking effect, the court has the discretion to rescind the divorce order.

It is important to bear in mind that your application and hearing for divorce is limited to just that. This is not the venue for you to raise issues regarding support, maintenance, and child support. The court has an interest in making sure that arrangements have been made with regard to any children affected by the divorce, but no matters beyond such arrangements will be raised at the divorce hearing.