Frequently Asked Questions on Family Law

Commonly asked questions on separation and divorce

CHILDREN

What if I leave home without the children?

No-one can force you to stay at home. If you have to leave home because of factors such as violence or you are otherwise prevented from taking your children with you, you should immediately seek legal advice. In some circumstances urgent Applicants can be made to a Court seeking Orders that you be allowed to return to your home. Leaving the home without taking the children with you can lead some disadvantages at a future Court hearing. Leaving the children with the other partner effectively concedes that they have the capacity to care for the children. You are always entitled to apply to a Court for an Order that the children live with you but finalising those Court proceedings can take many months. In general, if you consider it to be in the children’s best interests that they stay in your care you should take the children with you when you leave home. Ideally you will have been able to reach agreement with your partner that he or she leave the children’s home instead.

When can I see the children?

A Courts principle obligation is to the children. In making a determination as to were the children may live will Court will always make a decision which it considers to be in the best interests of the children. In most cases, the children will end up living with that parent who has been the primary care giver. That person can obtain a residence Order for the children. The other parent will seek an Order that he or she spends time with the children. Most of the Orders dealing with time spent by a parent with children evolve around considerations of the children’s routine. The law recognises that it is the children’s right to have a sound and meaningful relationship with both parents. Often, simple agreements are reached so that the non-care parent sees the children each alternate weekend, for one night each week, for one half of the school term holidays and at various times through the Christmas school vacation. There is no set formula and parties are encouraged to mediate these arrangements and try and reach agreement which suits the parties and is in the best interests of the children. Counselling services sometimes assist separated parents to focus on developing a program of contact with the children’s best interests in mind.

What if one party moves away interstate or overseas?

Australian law allows adults to live wherever they like. The real question in family law proceedings is whether or not any party has the right to relocate with children away from the family home. If one party relocates without your permission you should immediately make Application to the Court for the return of the children. A Court will very often make Orders that the children return to their place of residence prior to the move until the living arrangements of the children are finally determined. These Interim Orders of the Court assist all parties and the children in maintaining what is known as the “status quo” until all matters have been properly considered by the Court or agreement otherwise reached between the parents. If one party relocates with the children overseas then similar considerations apply. If the move overseas has been made without your permission then urgent Application can be made to the Court seeking International cooperation for the return of the children pending a final hearing of the issues between the parties. These overseas situations are covered by the Hague Convention. Often there are genuine reasons for people wishing to relocate, for example, interstate. Those reasons may include remarriage, interstate family support or employment opportunities. A Court sometimes allow a party to relocate interstate with the children notwithstanding that relocation will substantially affect the time the children are able to spend with the other parent. Courts work hard to ensure that the other parent is not significantly disadvantaged by the move. Sometimes a Court will not allow the children to relocate with the other parent and may reverse a previous residence Order. If you wish to relocate it is best to seek the other parents permission before you do so.

Are you financially disadvantaged by leaving the home?

Generally, that is not the case although there will be initial set up costs, rent and other expenses arising from the move. You do not lose any entitlement to a property settlement simply by leaving the home. The law recognises that in unhappy circumstances parties must separate. This invariably involves one party leaving the home. However if you do leave the home it is important that steps are taken quickly to claim entitlements to a share of property accumulated by you and your partner during the course of your relationship. If you are considering leaving the home try and speak to your partner about your separation and reach agreement as to those items of furniture and other personal effects that you can take with you. In our experience if you do not take your share of household contents with you it is likely that you will not receive them in the future. These will need to be replaced at your cost. The contents of a home a valued at their second hand value that the purpose of assessing a party’s entitlement to the value of joint property. The second hand value is much less than the replacement cost of most items. If you have to separate our advice is to take with you what you reasonably can, always bearing in mind that a party and children will require a greater share of normal household contents than an individual. It is also fair to say that Courts have regularly expressed their disapproval of people who take everything they can get there hands on. If you have concerns about furniture “going missing”, being sold or destroyed, take photographs of all of the furniture before you leave.

If I leave the house will I have to pay the mortgage?

In most cases this does not happen. You will have the costs of alternatively accommodation. The partner in the house will have exclusive occupation of that property. Often mortgage payments amount to weekly rental and in those circumstances it is likely to be a rough equality of weekly expense or accommodation. Sometimes if the mother and children are left in the family home the father may choose to pay maintain for the children by continuing contributions to the household mortgage.

PROPERTY ISSUES

What about the house?

There are a number of different ways of dealing with the former family home. Sometimes the person who remains in the home following separation has the first option to purchase the other’s party’s interest in the property. Sometimes, the parties will reach agreement (or the Court will Order) that the parent and the children move back into the home so that it can continue to be used as the family home for the children. Other times a Court will order (or parties will agree) that the property will be sold. Any decision is largely governed by whether or not the property is mortgaged. In the long run the party who wishes to retain the home will have to take over and refinance the existing mortgage into his or her own name. The property will be transferred to that party and it will be expected that party be solely liable for the existing mortgage. In addition it may be that the party retaining the home will have borrow more money from the bank to pay out the other partner’s interest in the home. This will clearly increase the mortgage balance. The bank is an important third party player in this situation. The bank will have to be satisfied that the party retaining the home has the capacity to meet all mortgage payments on his or her own. Sometimes this is not possible and the home has to be sold. If that is the case, then the nett proceeds of sale are divided between the parties in way in which they agree or which is determined by a Court.

What about my car?

You will usually retain the car that you were driving at the time of your separation. This applies even if the vehicle is registered in the other persons name. A Court will usually Order that the ownership of the vehicle be transferred to the person who is to retain the vehicle. This is particularly so if you need a vehicle to drive the children around.

Can I access joint accounts?

Generally the answer is yes. If you are a signatory to the account you can access the account and remove funds. However, you must remember that whatever you transfer into your own name will be considered to be part of your share of the assets of you and your partner in any final wash up of property matters. This is so even if the funds are used for day to day living expenses and are expended by the time the parties reach agreement or the matter comes before a Court. Any funds received from a joint account will always be taken into account as a part of that party’s share of property.

What about changing the locks?

As a matter of law, both parties have the right to live in property which is jointly owned by them. Regrettably at times of family crisis, parties necessarily separate. Upon separation the other party will establish a separate residence. Both parties should respect the others right to thereafter live in their respective separate residences without interruption. Sometimes however one party continues to visit the other residence uninvited or worse, enters the property and removes personal effects, furniture and the life. In those circumstances it is in our view appropriate to change the locks to prevent access to the property by uninvited guests.

I want financial support for the children?

The provision of financial support for children is calculated and monitored by the Child Support Agency. You should access the Child Support Agency website for more details. In general a calculation of maintenance paid made by reference to the payer’s taxable income. Please note it is not the tax payer’s net income. The Child Support Agency website provides basic calculators to enable you to calculate what maintenance you may be entitled to. Parents can also enter into private maintenance agreements which can be registered with the Child Support Agency rather than rely on any administrative assessment from the agency. These agreements are sometimes useful when parties want to include things such as the payment of school expenses, medical and dental fees and other similar expenses.

How is our property to be divided?

A Court takes into account the respective contributions of both parties. These contributions included the financial and non-financial contributions. The parties make contributions as homemakers and parents. These are often seen as significant and normally equal to financial contributions made by the other party. For example, it may be that in your household the father has been the principal financial contribution while the mother has been the principal homemaker and parent. In most circumstances a Court would start with the assumption that the contributions of both of those parties have been equal. In our example, the father may properly allege that the mother has made no financial contribution to the payment of the mortgage or other household expenses. He may ask “how then can she be equally entitled to a share in the property?”. The rationale is simple—without the mother staying home looking after the property and usually caring for the children the father would not have been able to go out and earn income which has been used to pay the mortgage and other household accounts. It is in this way that parents normally work together for the benefit of the whole of the family. After all, in most cases it is everyone’s expectation that they will jointly benefit from their respective paid and unpaid labours in the future. As stated, Courts usually start with the assumption that the contributions of both parties have been equal. There are however a number of factors that can change this assumption. These include whether there was any significant imbalance in relation to the assets brought to the relationship by the parties at its commencement, gifts or inheritances received by one party during the course of the relationship and other windfall contributions. A Court may take those additional contributions into account to adjust the division of assets in favour of one party or the other. It is fair to say that the more time that has elapsed between those contributions coming to the family the less weight will be given to that as a factor by a Court. There are however further adjustments that a court will make. These adjustments involve the Court making an assessment of the future needs of the parties. The Court is directed by the Family Law Act to take into account a large list of specific factors including things like the age and state of health of the parties, who has care of the children, whether one party can re-establish himself or herself more easily than the other party and the like. The party who has the care of the children would normally expect to receive a significant loading on any division of assets. Particularly if there is a modest asset pool it is likely that the pool will be divided between 60% and 70% in favour of the party who has the ongoing day to day care and principle responsibility for the children. However it is important to remember that there is no set rule and each case depends on its own particular circumstances. If you wish to negotiate directly with your partner about these matters we would strongly recommend that you get legal advice as to your proper entitlements prior to those private negotiations.

Is superannuation considered property?

The answer is simply yes. Superannuation can now be divided between the parties and is treated as another asset. That is not to say that dealing with superannuation is easy. Particular care has to be given to Orders that might split superannuation interests between parties.

DIVORCE

What does it mean?

A Divorce is a very simple process which simply results in the Court announcing a Divorce Decree which ends the marriage. The Court does not deal with any other issues at the time of hearing an Application for Divorce. Matters concerning children or property issues need to be commenced by separate Application to the Court. There is only one ground for a divorce—namely, that the parties have been separated for one year. It is not necessary to apply for a Divorce prior to issuing proceedings for Orders concerning children or property matters, maintenance or child support. Once the Divorce Application has been heard by the Court the final Decree of Divorce will issue one month after that date. You cannot remarry until that date has passed. The Court will provide you with a formal Divorce Certificate. A Divorce Application can be made by you personally. Alternatively you may wish to seek legal assistance. Divorce Applications can be obtained by accessing the websites of the Family Court and the Federal Magistrates’ Court. It is a relatively simple process but care needs to be taken in completing the Application. Once the Application has been issued it needs to be personally service on the other party so that party has proper notice that the Application is coming before the Court. There is a fee payable to the Court for the issue of the Application. Other expenses will be incurred in the payment of services fees. If you are the Applicant you will need to attend the hearing to ensure that the Court is satisfied about the form of the Application, that the Application has been properly served on the other party and that a proper arrangement have been made in all of the circumstances for any children of the relationship. There is only one ground for Divorce in Australia—namely that the relationship between the parties has “irretrievably broken down”. This is evidenced by a 12 month separation period. Normally that 12 month period occurs in a continuous period. The Court will occasionally overlook small periods of cohabitation (for example when parties try to reconcile their relationship and again live together for a few weeks). However, usually the separation is permanent and continuous. The Court does not take into account questions of “fault” when considering the break down of the relationship. Overseas marriages are recognised in Australian Courts. You can apply for a Divorce of an overseas marriage. The other party does not even have to be in Australia. However in those circumstances difficulty sometimes arise with the service of the Application on the other party. It will also sometimes be necessary to have foreign language documents property translated.

Separation under the one roof?

Sometimes parties continue to live under the one roof even though their marriage has ended. The Court recognises circumstances where parties can be separated under the one roof. This is somewhat harder to properly establish before the Court and often involves the establishment of separate bedrooms and separating domestic household tasks and activities so as to properly suggest that there is no mutual reliance on each party. You will also have to provide evidence from a third party confirming the nature of your relationship. This evidence is normally provided by Affidavit.

Does a temporary reconciliation stop an Application for Divorce?

As explained above the Court can ignore certain short periods of time where parties may reconcile their relationship and live together again as husband and wife. However if the reconciliation is for a period of longer than 3 months then the 12 month separation period must start again.

Useful address:

Child Support Agency
Level 12, The Tower Melbourne Central
360 Elizabeth Street Melbourne
Tel: 131 272
Web: www.csa.gov.au

Centrelink
298 Maude Street Shepparton
Tel: 136 150
Web: www.centrelink.gov.au

Relationships Australia
634 Wyndham Street Shepparton
Tel: 5820 7444
Web: http://relationshipsvictoria.com.au

Family Care
19 Welsford Street Shepparton
Tel: 5823 7000
Web: http://familycare.net.au

Berry Street
110 Wyndham Street Shepparton
Tel: 5822 8100
Web: www.berrystreet.org.au

Centre Against Sexual Assault (CASA)
130 Nixon Street Shepparton
Tel: 5831 2343
Web: www.gvcasa.com.au