Jul 4, 2022 | Family Law
In family law, one issue which may arise following a relationship separation where children are involved is ‘relocation’. Relocation is the legal term for moving with your child to another town, state or country after a divorce or separation. Relocation may raise issues in relation to parenting arrangements if the moving interferes with the ability of the non-relocating parent to live with or spend time with their child.
It is best that parties try to amicably resolve all issues that will arise as a result of a planned relocation. This agreement can then be formalised in court through the filing of consent orders. If this is not possible, parties may apply to the Federal Circuit and Family Court of Australia for a judicial determination. However, if you relocate without a court order or without the consent of the non-relocating parent, a court may require you and your child to return to your previous location.
The Law on Relocation
Issues around relocation are not explicitly referred to in the Family Law Act 1975. However, the overriding consideration of the Family Court in all matters concerning children, including variations to living arrangements, is determining what is in the best interests of the child. While the issue of relocation is not mentioned in legislation, there are countless court cases which provide guidance.
Factors Considered
There are a variety of factors that the Family Court may consider when determining an application for relocation. Below is a list of potential considerations:
- Reasons or interests of the parent proposing the relocation
- The reality of the parents’ circumstances such as the availability of affordable and appropriate housing, employment and family support
- The impact of the proposed orders on the mental health and wellbeing of each parent
- The effect the relocation would have on the non-relocating parent’s ability to see their child
- The nature of the relationship between the child and each parent, as well as any other significant people in the child’s life such as grandparents and extended family
- The impact the proposed relocation would have on the child’s relationships with their parents and significant people in their life
- Travel costs of the non-relocating parent to see and spend time with their child
- Proposals for how the non-relocating parent will be able to spend time with and communicate with their child
The outcome of each case is unique and based on its facts. Therefore, it is difficult to predict the outcome of cases without consulting a legal professional for advice.
Seek Legal Advice
If you have any questions or concerns regarding relocation, we can provide additional information and advice to you regarding your situation. If you would like to discuss your concerns with a legal professional please contact us on (02) 9963 9800 or via our contact form.
Jun 12, 2022 | Family Law
The Legal Implications of Partner Separation
When a relationship breaks down, there are significant legal implications to consider. The legal consequences of a partner separation differ from divorce to de facto relationships, and are impacted by your living circumstances.
What is the definition of ‘separation’?
‘Separation’ in family law is defined as the bringing to an end of a marriage or de facto relationship. There is no requirement to register a relationship separation under Australian law. However, separation is a fact which must be proven if it is disputed by one party in legal proceedings.
In the case of a divorce, the date of separation is recorded on the application for divorce and is sworn or affirmed to be true and correct by the applicant. If you cannot prove you separated from your spouse at least 12 months before you file your application for divorce, the court will not grant the divorce.
Therefore, it is a good idea to confirm the separation in writing, even if this is via text message or email that can be saved. Often divorce cases and cases for property settlement in de facto relationships can turn upon whether or not a party can prove that separation occurred on a particular date.
What about de facto relationships?
In the case of a de facto relationship, whether or not a property settlement is available can depend on whether the relationship lasted for two years or longer. If the de facto relationship was less than two years long the court may have no jurisdiction under the Family Law Act to provide a property settlement. There may be alternate remedies available or another basis other than the two year requirement to show that a de facto relationship existed.
In addition, there is also a two year limitation period in which to commence the application, from the time of separation. In such cases, again, the date of separation in evidence can be significant.
What about if you still live together?
Separation can take place even if the parties still live in the same property. In these cases, the court will need to examine a number of factors to determine when and if a separation has taken place. Those factors can include whether the parties:
- Slept in separate rooms or together after the alleged date of separation;
- Performed domestic duties such as cooking and washing for each other after the alleged date of separation;
- Separated their financial affairs to any extent after the date of separation;
- Lodged or signed any documents informing government agencies of the separation, such as applications for Centrelink or ATO documents as a single person, as opposed to a person in a relationship;
- Continued to be intimate after the date of alleged separation; and
- Made it publicly known (such as by telling friends and family), that they had separated.
Ten things to consider if a marriage or de facto relationship has just ended:
- Contact your bank or financial institution in writing (in person or email- with your signature appearing) to separate or freeze joint funds.
- If your ex-partner has your power of attorney, ensure it is revoked, and have a new one drafted.
- Consider whether your nominated death beneficiary for your superannuation entitlements is appropriate.
- Photocopy all of your and your ex’s financial documents and put them in a secure location (this should not be at your home or in your motor vehicle).
- Look at your will and consider if it is still what is appropriate.
- If you have children, contact the Child Support Agency and find out how much is to be paid or is payable for child support and what impact that will have on any pension.
- Do title searches on your If your home is not in your name or is in joint names consider placing caveats over the properties. If your property is held as a joint tenant, consider severing the joint tenancy.
- If there has been family violence in the relationship you may need to seek an Apprehended Violence Order (AVO).
- Start a diary which keeps track of time your partner has with the children and any adverse behaviour they display.
- Seek advice from an experienced lawyer.
Contact Us
There are many legal considerations that arise following a relationship breakdown. If you need more information, or if someone you know needs help, please contact Etheringtons Solicitors to speak to one of our experienced solicitors on (02) 9963 9800 or contact us via our form here.
Jun 7, 2022 | Family Law
Understanding Australian Child Custody Laws
Australian child custody laws recognise that fathers have an important role in the caretaking of children by the creation of an equitable agreement between parents that is first and foremost in the best interests of the child. There is a common misconception that mothers retain primary custody of children because they are traditionally viewed as more suitable for the role of primary carer. On the other hand, fathers were considered less likely to retain custody because they were considered more likely to be employed and have a better overall earning potential.
In Australia, child custody laws provide the equitable foundations for a fair child custody split between parents, however there may be many equitable reasons as to why an even split is unattainable.
Research from the Australian Institute of Family Studies
The Australian Institute of Family Studies has recently found that approximately half of mothers would prefer to see increased paternal involvement in their children’s lives. In the same study, a majority of fathers also expressed a preference for increased involvement. Interestingly, the fathers cite the following most common factors that prevent such involvement:
- Work commitments;
- Belief that the child’s mother would oppose more involvement;
- and Physical distance/travel costs.
Child Custody Laws
Australian child custody laws have been reformed in this area to make it clear that there are no specific parents’ rights and that there is no legal distinction between fathers and mothers in terms of child custody. The Court is instead governed by, and legally obliged to consider, the child’s rights and best interests above all else.
The Family Law Act 1975 (Cth) covers diverse matters such as divorce and separation, parenting arrangements, property settlement and financial maintenance of one party by the other.
With respect to parenting matters, the Act states that a “child has a right to be known and cared for by both parents”, without prioritising either the rights of the father or mother. Unless there are allegations of domestic violence or abuse, the Court typically adopt a view that it is in the child’s best interests to spend as much time as reasonably and practically possible with both parents.
How the Family Law Act Applies to Child Custody
When considering parenting arrangements following separation, the court has to determine who the child will live with and spend time with. Both parents have a responsibility for the care of their children, including their financial support. Despite this, the law does not guarantee an equal-shared parenting arrangement in all matters.
If the court does decide that an equal-shared-care regime is not in the best interests of the child, they will try to allocate substantial or significant time to the non-resident parent. The exception is in a case where there is a history of domestic violence or abuse. In the latter case, the Court will prioritise the child’s safety and wellbeing and make appropriate parenting orders.
Further Considerations for Child Custody Rights for Fathers
In determining what is in the best interests of a child, the court will consider the wishes of the child, as well as the nature and history of the relationship the child has with each parent. There might be practical difficulties of long- distance parenting and specific emotional or intellectual needs to consider, as well. Communication between both parents and availability of either parent will also be taken into account.
Conclusion
The family law legislation does not enable the court to take into consideration stereotypical gender roles. Rather, the court’s decisions are strictly governed by the principle of the children’s best interests. If you have any questions with respect to parenting arrangements of your children, please contact Etheringtons Solicitors for advice on (02) 9963 9800 or contact us via our contact form.
Jun 2, 2022 | Family Law
Spousal maintenance is a responsibility you or your former partner might have to financially support the other person after separation or divorce. Spousal maintenance is not automatic and, in most cases, is only payable where one partner cannot reasonably support themselves and the other person has the capacity to pay maintenance. It may be a series of regular payments or it can be paid in one lump sum.
Parties should attempt to reach an agreement out of court, or negotiate a formal property settlement, before commencing legal proceedings. If an agreement cannot be reached, an application can be made for a maintenance order.
Court Order for Spousal Maintenance
Parties to a marriage have the right to make an application for Spousal Maintenance (section 72 of the Family Law Act), and similar provisions enable parties to a de facto relationship to apply (section 90SE). When assessing an application for spousal maintenance, the court will take into account numerous factors outlined in section 75(2) which include:
- Income, property, debts and financial resources;
- Age;
- Health;
- Ability to earn an income;
- A suitable standard of living;
- Children living with you or your former partner.
Common situations that result in spousal maintenance include when a spouse:
- Had to give up work to care for young children and it is either unreasonable for them to obtain work or they do not have necessary skills enabling them to re-enter the workforce;
- Is unable to work due to health issues or because they are suffering with a mental or physical disability;
- Is responsible for taking care of children under 18 years or adult children who are disabled.
When to apply for a Spousal Maintenance order?
There is a strict time limit if you are applying for spousal maintenance for the first time, but once an order has previously been made, time limits do not apply. If applying for the first time, an application must be made to the court within:
- One year of a divorce being finalised for married couples (when a Certificate of Divorce is actually issued by the Court);
- Two years of separation for de facto couples.
An application to the court outside the time limit will be granted in limited circumstances.
Contact us
We know that the divorce process can be strenuous for both parties. If you would like more information regarding a property settlement matter or any other family law matter, do not hesitate to contact Etheringtons Family Lawyers in North Sydney on (02) 9963 9800.
May 19, 2022 | Family Law
The breakdown of a relationship or marriage can be emotionally daunting, especially when children are involved. It is not uncommon for parents to be confused when determining child support. According to the Child Support (Assessment) Act 1989 (Cth), parents have a duty to maintain their children in the form of child support payments.
What is Child Support?
Child support is a term used to describe the payment of money from one parent to the other for the purpose of helping that parent raise children who are under 18 years of age. Child support is designed to help cover the expenses involved with raising children, such as food, clothing, medical costs, housing, school costs and costs related to other activities. All children in Australia involved in family separations, whether or not the parents were married to each other, are eligible for child support payments.
How is Child Support Calculated?
The Department of Human Services is an Australian Government Agency who have authority to determine child support matters. They are required to follow steps to calculate the amount of child support payable. In calculating how much child support is to be paid, there are various factors which are generally taken into account:
- The age of the child
- The income of both parents
- The amount of time that the child spends with each parent
- The level of care that each parent provides
- Costs of raising the child based on independent research
You can use the Department of Human Services’ calculator to estimate child support payments here.
What If the Calculation is Unfair?
There may be circumstances where you may believe that the child support payments assessed are unfair to you. This can occur in situations where one parent has arranged to minimise their taxable income, lost their job since an assessment was made, or a child has special needs.
In these circumstances, you may apply to the Child Support Agency to change the assessment. The Department of Human Services will consider the unique circumstances before amending any calculations.
What If the Other Parent Doesn’t Pay?
The Child Support Agency has the power to recover unpaid child support. They can do this through:
- Income payment deductions
- Enforcing tax return lodgement or intercepting tax refunds
- Working with third parties
- Employer or bank account deductions
- Issuing overseas travel bans
- Litigation
- Prosecution
Can I Organise Child Support Myself?
It is possible for parents to organise and manage child support themselves. This can happen when parents reach an agreement and mutually decide upon the amount of child support they will pay to the other parent. This can involve making cash payments to one another or meeting payments of expected expenses directly. This arrangement can be entered into by way of a binding child support agreement, which is subsequently lodged with the Department of Human Services.
Contact Us
If you would like to discuss your family law matter with a legal professional please contact us on (02) 9963 9800 or via our contact form.
