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.

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.

Costs and Litigation Funding Options

The Family Law Act provides as a starting point that each party pays for their own legal fees.

 

In some circumstances, a Court may be prepared to make an Order for costs against the other party but as a general rule, unless there are exceptional circumstances, even if you obtain a Costs Order against the other party it would generally only cover between 40% – 60% of your own Solicitor/Client costs.

 

In appropriate cases, it is possible to obtain an Order from a Court that payment of funds be paid to you out of available assets so that you can adequately fund the running of your family law case.

 

In some cases where there are limited liquid funds but substantial other assets that cannot readily be sold, you may be able to obtain finance through firms specialising providing loans to family law clients which are secured against assets with the loan repaid at the conclusion of proceedings.

 

We are able to provide you with more information in relation to costs and funding options at any time.

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.

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.

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.

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.

Bankruptcy and Family Law

Questions often arise about how the Family Law Act applies when one of the parties to a marriage or relationship is a bankrupt or becomes bankrupt following separation but before a property settlement has been finalised.

Once a person is declared bankrupt under the provisions of the Bankruptcy Act 1966, the provisions of same apply to the Bankrupt.

WHAT IS BANKRUPTCY?

Bankruptcy is a legal financial status under the Bankruptcy Act 1966. Once a person is declared bankrupt, a number of things happen including:

  • A Trustee in Bankruptcy is appointed to manage the bankrupt’s affairs; a Trustee “steps into the shoes” of the bankrupted person and makes all major financial decisions thereafter;
  • The bankrupt’s property (there are exceptions including certain household goods, some personal property, a motor vehicle up to a certain value, property held in trust for somebody else, superannuation) vests in the Trustee in Bankruptcy for sale and division among the creditors;
  • Creditors (secured and unsecured) can no longer enforce or chase the debt;
  • Assets that the bankrupt acquires during the period of bankruptcy (eg. an inheritance) may also be sold by the Trustee in Bankruptcy;
  • At the end of the bankruptcy period, the bankrupt will be discharged and released from most of the remaining debts and the bankrupt can start again with a clean sheet.

JURISDICTION

If one of the parties in the marriage or relationship is a Bankrupt, the Family Court also has jurisdiction to deal with any matter connected with the Bankruptcy of that party.

CREDITORS VERSUS NON-BANKRUPT SPOUSE

  • In 2005, amendments were made to the Bankruptcy Act and the Family Law Act, designed to clear up and sort out the competing interests of the Bankruptcy Trustees (representing creditors) and the non-bankrupt spouse (often the spouse who knew little about his/her spouse’s financial dealings).

As a result, Family Law Courts (Section 79(1)(b) of the Family Law Act 1975) can now alter the interest of the Trustee in Bankruptcy in “vested bankruptcy property”. The Court can order the Trustee to transfer property for the benefit of the non-bankrupt spouse or a child of the marriage.

  • As between the Trustee in Bankruptcy and the non-bankrupt spouse, the Court can only make a property alteration in one direction, ie. in favour of the non-bankrupt spouse.

This means the Trustee cannot ask the Court to seek to take money from the non-bankrupt spouse in an attempt to swell the pool available for creditors.

  • When a Court is trying to sort out the competing interests between the Trustee in Bankruptcy and the non-bankrupt spouse, the Court has to carefully identify and weigh up the bankrupt spouse’s and non-bankrupt spouse’s existing legal and equitable interests in the matrimonial property. Then the Court requires to work out what the non-bankrupt spouse can keep or receive and what must stay with the Trustee in Bankruptcy as vested bankruptcy property for creditors.
  • When the Family Court is working out what Orders are appropriate:
    • The Court cannot allow any creditors to be joined into the proceedings;
    • The Court must join the Trustee in Bankruptcy however, into property settlement proceedings (on behalf of the creditors) if the Court thinks the interests of creditors will be affected by the Court making property settlement Orders as between the spouses;
    • The Court must take into account the effect of any proposed Orders on the creditor’s ability to recover their respective debts;
    • The Court can, for example, set aside a transfer of a property by the bankrupt spouse to the non-bankrupt spouse if it was made within 5 years of the start of the bankruptcy and seen to have been an attempt to defeat creditors.

The legal and equitable complexities arising where family law and bankruptcy clash are considerable and fraught with difficulty. Whether you are the bankrupt spouse, the non-bankrupt spouse or a disgruntled creditor, your interests must be properly protected.

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.

Relocation of Children Interstate and Overseas

Under the Australian Constitution, Australia guarantees its citizens freedom of movement. Consequently, a Family Law Court will never stop a parent moving to another part of the State, or interstate or overseas. Relocation cases address is whether a parent is allowed to relocate the children of a relationship to that intended destination.

THE TEST

The test a Court applies in deciding a child relocation case, is whether it is in the best interests of the child or children to relocate.

APPLICATIONS TO RELOCATE WITH CHILDREN

Any Application to relocate with children to a different locality (interstate or overseas) is undertaken in the same way as any other Application.

A party will need to file the appropriate Application and supporting Affidavit(s) and if the matter is urgent seek an early Hearing in relation to same.

It should be noted however that it is not always possible to have an earlier Hearing and therefore if there is the prospect that you are likely to need to relocate in the future, planning should take place to ascertain whether an Application ought to be made now rather than later.

WHY RELOCATE 

People seek to relocate and take their children for a number of different reasons. This can include where:

  1. The relocating party has secured employment elsewhere; or
  2. Their new partner works or lives at the intended new location; or
  3. Perhaps the other parent takes little to do with the children and for whatever reason does not play an active part in the children’s life, and a new step-parent is seen as offering more input and stability for the family; or
  4. The relocating parent wants to be nearer close family or friends (forcing a parent to remain in one place can cause that parent to sustain significant psychological or social distress); or
  5. The relocating party lives in a remote location and wants to be nearer better health and high school facilities.
  6. Regrettably, sometimes parties seek to relocate to deliberately limit/damage the relationship children have with the other parent.

RELOCATION WITHIN THE STATE 

Where a relationship breaks down it is not unusual for one party to move to a different area of the town or city where they lived with their former partner. Sometimes they choose to move to a different part of the State.

This can result in significant extra travel for the parents and the children. It can also result in a change of routine. If this happens, parties need to work together to sort out future travel arrangements and length and frequency of periods to be spent between the non-resident parent and the children, to ensure that the children continue to see both parents regularly.

Such situations are not uncommon. A Court is unlikely to fetter the movements of the relocating parent, particularly if the move is a reasonable one in all the circumstances, and the relationship between the children and the other parent can continue.

RELOCATION INTERSTATE OR OVERSEAS

Real difficulties arise where a long distance relocation is contemplated. In such a case, it often becomes impractical for the children to see the other parent as regularly. Further, that parent is unlikely to be able to continue to participate in established mid-week sporting and other leisure activities.

When deciding whether to allow an interstate or overseas relocation of children, the Court looks at such things as:-

  1. The best interests of the children;
  2. The calibre of the existing relationship between the children and the other parent;
  3. The willingness of the relocating parent to acknowledge and encourage the children’s relationship with the other parent;
  4. Family support, employment, lifestyle and other factors at the intended new destination;
  5. The costs of travel;
  6. What other means of contact such as telephone, Skype and modern technology opportunities are available for regular communication;
  7. Where the relocation is to be overseas, the likelihood of the foreign country’s Courts working with the Australian authorities to make sure ongoing child contact Orders are enforced and children recovered if there are breaches of the new Orders;
  8. The particular facts and circumstances of the case.

OPPOSING AN APPLICATION FOR PERMISSION TO RELOCATE 

If the other party plans to relocate and you object, you should file an Application with the Family Court or Federal Circuit Court immediately.  If the departure is imminent, you should ask for an abridgement (shortening) of time and an interim relocation order to try to stop the move occurring. If the destination is overseas, your Application should include an Airport Watch List Order to prevent the children being taken out of Australia.

If you are the party seeking to relocate with the children, it is generally advisable to talk this through with the other parent particularly if the children already enjoy a meaningful relationship with that parent or if Children’s Court Orders are already in place. Sometimes these issues can be worked through in Family Dispute Resolution and this should be attempted at the first opportunity.

If there are existing children’s orders in place (live with/time with) then the party seeking to relocate and change these arrangements, needs to first seek a Variation Court Order before proceeding. Acting in violation of an existing Court Order can have severe consequences.

INTERNATIONAL CHILD ABDUCTION – OPTIONS 

If your child is abducted from Australia and taken overseas, the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) establishes a process through which a parent can try to have his or her child returned home to Australia.

However, not all countries have signed up to the Convention. Australia is a party.

Australia has certain bilateral arrangements with other countries including with some countries which have not gone as far as signing up to the Hague Convention.  These treaties relate to service of Court documents and can be effective in moving child recovery forward.

Further, Australia and New Zealand have a Trans-Tasman treaty together, enforcing Court Orders as between their respective countries.

Hague Convention cases are normally conducted by a Government Bureau in Canberra, called the “Central Authority”.  However, as lawyers we can help you (and the Bureau) preparing the case, gathering evidence and presenting appropriate information.

In circumstances where children have been removed to a non-treaty country, then very careful instructions need to be taken and the Applicant parent needs to brace him/herself for a potentially difficult legal process.

Superannuation and Family Law

Under the Family Law Act 1975, superannuation is treated as property even although it is not “technically” property. Superannuation is available to be divided between parties in a property settlement under Part VIII B of that Act, along with real estate, shares, cars, bank accounts and so on.

 

SUPERANNUATION SPLITTING

Superannuation Splitting legislation permits superannuation to be divided between parties at the end of their relationship.

 

Superannuation can be divided or “split” through a Court Order or through entering into a Superannuation Agreement.

 

The mechanics for effecting a superannuation split are strict. Once the terms of the Order or Agreement have been finalised, it must be given to the Superannuation Fund for pre-approval. Once Orders are made/the Agreement concluded, that formal paperwork must be served on the Fund.

 

It is then for the non-member spouse to decide whether he/she wants to open up a stand-alone account in the existing Fund or have the split money sent to their own existing Fund or a new Fund of their choosing.

 

Subject to that decision, Funds to the value of the split then transferred to the non-member’s nominated Superannuation Fund.

 

Un-splittable Superannuation

Certain superannuation are not splittable and these include:

  • If the balance is less than $5,000;
  • Certain pension accounts.

 

ACCESSING SUPERANNUATION INFORMATION 

Section 90MZB of the Family Law Act regulates the information Superannuation Funds require to provide to parties in Family Law property negotiations. This information can be sourced by completing a Form 6 Application. Upon receipt of the Form 6 Application, the Superannuation Fund must:

  1. Provide requested information about the superannuation balance to the member or non-member spouse making the request;
  2. If the request comes from a non-member spouse, refrain from advising the member that the request has been made; and
  3. Not disclose the superannuation member’s address to the other spouse.

 

SELF MANAGED FUNDS 

Where parties have a self-managed super fund which they want to split, there are very strict compliance requirements that need to be adhered to and complex matters considered. The issues include: who, if either party wishes to continue membership of the Fund; amendments to the Trustee Deed; Capital Gains Tax; valuation of self-managed superannuation assets; and an understanding of the relevant Superannuation Regulations.