Understanding The Law... Defacto, Divorce And Family Law

By: Nominate A Lawyer

The following Q&A's have been provided to help you better understand Family Law.

Q. I recently divorced my husband who has left me with the four children and he has suggested that as we have no assets he will give me half of his superannuation. What should I do as I am unemployed and on a single mother’s supporting pension and he does not pay child support?

A. Unfortunately you are being very badly treated as your entitlements would include spousal maintenance, child support (see the child support agency) and access to at least 50% of his superannuation. You need to seek urgent legal assistance and perhaps legal aid is where you should look first.

Q. I have been divorced from my former husband for over seven years and although I am in employment he has been on the dole throughout and has a history of violence. Recently he approached me and suggested that as he was now in a stable relationship he would like to have contact with our son. What should I do?

A. In all cases involving children it always gets back to what is in the best interests of the child. Should your ex-husband have a history of violence involving both yourself and the child, custody would not be an issue and supervised contact is probably what would be allowed. This always gets back to working out a program which will be acceptable to both parties provided that the child will not suffer as a result.

Q. I am currently involved in a de-facto relationship and my partner has excluded me from the home by locking me out. What can I do as she has become personally violent towards me and we need to sell the house so we can go our separate ways?

A. In regard to the property you should ask your solicitor to write to your ex-partner indicating that you wish to have the property sold and if they do not comply then you can always approach the Equity Division of the Supreme Court for relief.

Q. Do you think it advisable for me to enter into a financial agreement with my intended defacto partner as I have all the assets and she has very little?

A. Yes. There are a number of reasons for doing this but principally you need to ensure you are fully protected given your age and if the relationship breaks down then you have a level of protection which would not otherwise be available to you.

Q. I have been involved in a same-sex relationship with another person for over 20 years and I have retained a firm of solicitors who seem reluctant to push my case as strongly as I would like. The other side is making mincemeat out of my representative who does not seem to know what to do to counter their attacks. What do I do in the circumstances?

A. If you are unhappy with the type of representation you are receiving and the service is falling well short of your expectations then you need to consider whether or not it is in your best interests to move to another lawyer. Same-sex defacto relationships and marriages which fail all require representatives who possess skills appropriate to best represent their client’s interests. If counselling, mediation and conciliation has not worked for you such that you find you are under constant attack and need to take a more forceful approach then perhaps it is time for you to consider changing lawyers to one who can better represent your interests as a 5-10% swing in entitlements from one party to another may mean that legal fees become irrelevant in this context as you will need to fully protect your interests in these circumstances.

Q. I have just broken up with my defacto partner and everything was in her name, although I did a lot of building work to improve the property and paid the mortgage instalments whilst we were together. Am I entitled to be recompensed for my contribution to the relationship?

A. Yes. Effectively where two people are in a defacto relationship and one makes all the financial contributions to it whilst the other takes the benefits even though they may own the principal asset the court will look to the nature and extent of the financial contributions you have made and the assets will split based on this after accounts have been taken.

Q. My boyfriend has a couple of children to an ex-girlfriend who has packed up, moved on and not told anyone where she has gone. Is there anything my boyfriend can do?

A. Yes. He can approach the court for orders which means that anybody who has any knowledge of those children’s whereabouts has to deliver up information so that their current location can be discovered so the court can make orders for their return.

Q. I am a grandmother - do I have any rights to see my grandchildren?

A. Yes. You fit within a particular class of important individuals which the court considers important to the development of your children and therefore you would be entitled to see them after you have approached the court for orders.

Q. What effect with the new changes in the family law system have on children?

A. All children will have a right to know both their parents and to be protected from harm.

Q. What impact will the new changes have on parents?

A. Parenting is regarded as a responsibility which should be shared equally. This may not mean equal time; it could mean substantial or significant time spent by both parents with the child.

Q. Is it true that these new family law changes mainly focus on children?

A. Yes. These changes in the law are all about putting the needs and best interests of children first.

Q. What are the responsibilities of parents in this regard?

A. Parents bear the responsibility for their children’s physical and emotional wellbeing which should be share equally between parents provided they are not subjected to abuse or violence. Co-operation between separating or separated parents is an essential part of these reforms.

Q. Do these reforms mean that children will spent equal amounts of time with each parent?

A. No. The focus is both parents will have an equal role in making decisions about important issues such as schooling and health care.

Q. How do parenting plans and parenting orders sit with each other?

A. Basically it means that both the parents and the court need to have the best interests of the child in mind at all times when making decisions affecting the child’s wellbeing.

Q. How will the courts determine how much time the child spends with each parent?

A. Courts will determine this by reference to what is in the best interests of the child and other practical considerations. Time can mean equal time or substantial or significant time with both parents which may include day to day routine time not just weekends and holidays.

Q. When will these changes which focus on cooperatively resolving disputes come into operation?

A. It is expected they will start on 1st July 2007 when parents will be required to attend family disputes resolution sessions and be expected to make a genuine effort to resolve issues and disputes before taking a parenting matter to court.

Q. How does the court system accommodate these changes?

A. In parenting cases there will be change to a case-management approach with the focus being on the early detection and dealing with of violence and abuse.

Q. What will happen where there has been a breach of parenting orders?

A. The court will have wider powers to deal with people who breach parenting orders.

Q. What will happen where parents fail to fulfil their responsibilities?

A. Where parents fail to fulfil their major parenting responsibilities the courts will be able to take these matters into account.

Q. At what stage will this disputes resolution mechanism come into play?

A. Separating parents will be required to undertake some form of disputes resolution for parenting disagreements before proceeding to court. Parents will have access to the new family relationship centres or may attend another accredited service or practitioner in this regard.

Q. Will it be compulsory for separating couples to attend a family relationship centre?

A. No, but the law will require separating parents to attempt disputes resolution before taking a parenting dispute to court.

Q. What does the court bear in mind when considering what is in the best interests of the child?

A. That the children know both their parents and to be protected from harm each being given equal weight.

Q. Are there any other considerations which are taken into account?

A. Yes. Additional consideration is given to views expressed by the child, the nature of the child’s relationship with his/her parents and other important persons such as grandparents, relatives and extended family members as well as the practical difficulties of a child having contact with a parent(s).

Q. Are children entitled to independent legal advice where a matter proceeds to court?

A. Yes. The court may order an independent lawyer be engaged to represent the best interests of the child and to inform the court of their independent view in this connection.

Q. What is a parenting plan?

A. A parenting plan is an agreement worked out between a child’s separating parents which can take any form provided it sets out the parenting arrangements for children. It must be produced in writing and dated and signed by both parents.

Q. Can a parenting plan be changed at any time?

A. Yes, as it is voluntary it needs to have the agreement of both parents. It should be borne in mind that parenting plans are not legally enforceable.

Q. Will the court have any regard to parenting plans if they are not legally enforceable?

A. When the court is making a parenting order in relation to a child they are required to consider the terms of the most recent parenting plan and to consider the extent to which both parents have complied with their obligations in relation to the child.

Q. Where a court has made a parenting order with respect to parenting arrangements can the parents change it without having to go back to court?

A. Yes provided the court order does not prohibit this.

Q. Although it is expected that family disputes resolution to new parenting cases will apply from mid-2007 when will it apply to all parenting cases?

A. The final date is expected to be mid-2008 but it will not apply in cases of family violence or child abuse.

Q. Will family disputes resolution apply in all cases?

A. No. It will only apply to parents who want to go to court over a parenting issue where it is compulsory unless they fit within the listed exceptions or where they have already agreed on parenting arrangements.

Q. How does the court know that compulsory family disputes resolution has already taken place?

A. This is because a certificate is required from an accredited family disputes resolution practitioner before the court can hear an application for a parenting order. Basically the certificate states that family disputes resolution did not work for a number of reasons.

Q. How will family violence and child abuse be dealt with under the current changes?

A. Family violence and child abuse will not be tolerated. This is the fundamental principle of the new reforms. Family violence includes actions or threats by a person against any family member or their property including witnessing such actions or threats. Fear and the apprehension of violence are addressed. A person must reasonably fear for or be apprehensive about their personal wellbeing or safety. The courts are required to act promptly in cases of violence or abuse. State and territory agencies are expected to investigate allegations of violence and abuse without delay.

Q. My de-facto partner and I recently separated and it is proposed that we split the assets 50:50. What should I do?

A. If there are no children then it is purely and simply a question of splitting the assets but it should be remembered that de-facto couples are not treated as generously as married couples. It really gets down to taking accounts and the extent of financial contribution made by each partner.

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