Family Law Seminar

Riverland Community Legal Service8 Wilson Street, Berri SA 5343

Phone: 08 8582 2255Fax: 08 8582 2266

Divorce

Ground for divorce: Irretrievable breakdown of marriage No likelihood of reconciliation Living in Australia 12 months prior to seeking divorce

Separation must be clearly expressed and articulated

Fault is not an issue with divorce in Australia

Requirements – for application in Federal Magistrates Court: Marriage Certificate –Certified copy not the original

Application – original and two copies Self addressed stamped envelope Payment for lodging - $550 approx or a reduction of payment

form – will need a concession card to aid exemption

Divorce

Marriage certificates not in English additional requirements Translated by an authorised translator There is a fee involved in this Riverland Community Legal Service can find a translator

but we are not liable to any costs involved The authorised translator need to sign a supporting

affidavit stating who they are, and that they are an authorised translator

Need a certified copy of the marriage certificate The affidavit needs to state what foreign language it is

translated from

Divorce – Separation Under One Roof This can occur under the Family Law Act 1975 section

Need to present reasons to the Court why this is occurring

Financial reasons are generally main reason as to why this is occurring

Needs to be confirmed by an independent witness affidavit who can state the parties have:

Separate domestic lives No sexual relationship Separate rooms Not socialising together Individual chores around the house

Divorce – Resuming Cohabitation

If the parties to a divorce resume cohabitation on one occasion but within a period of 3 months they separate again and have thereafter lived separately and apart, these time periods may be calculated together for the purposes of 12 months separation.

Divorce – Short Marriages

Parties to a short marriages of under two years under the Family Law Act must attend counseling to attempt or look at reconciliation with the assistance of a specified person or organisation before they can file for divorce

This requirement for counseling can be waived under special circumstances

For an application to waiver, decided by the Court from evidence in a supporting affidavit

Divorce – Service

Service is the process of sending or giving court documents to a party after they have been filed, in accordance with the Rules of Court

Service ensures that all parties have received the documents filed with the Court and are aware of the Court date and time

Court requires proof of service through their own forms

Divorce – Time Limits for Serving If your spouse is in Australia, the documents must be

served at least 28 days before the Court hearing If not the matter will be adjourned

If your spouse is overseas, the documents must be served at least 42 days before the Court hearing

Divorce – Your responsibilities to serve the application on ex If you have made a sole application you must arrange to

serve the following documents on your spouse:

A sealed copy of the Application for divorce A copy of the Marriage, Families and Separation brochure Any other documents filed with the Court, except original of your

marriage certificate

Acknowledgement of service – must be signed and dated by ex Self addressed stamped envelope Covering letter stating please sign, date, put in envelope and send

back the Acknowledgement of Service

Divorce – How to serve?

Service by Post You should only attempt this if you are certain that your spouse

will return the signed and dated Acknowledgement of Service (Divorce) to you

Without this the Court cannot be sure your spouse has received the documents and will adjourn the matter

Service by Hand YOU CANNOT SERVE THE DOCUMENTS ON YOUR SPOUSE

YOURSELF You must arrange for a person over 18 years of age to serve

the documents on your spouse

Divorce – How to serve?

The server can be: A family member A friend A professional process server such as the Sheriffs Officer of

Court (a fee is involved with the Sheriffs Officer)

If a family member or a friend serves the documents they must complete a supporting affidavit detailing all that they did, that they identified who the person is or how they know that person they are serving the documents on, how they identified them, etc

There are specific forms for this

Divorce – How to serve?

Serving your spouse’s lawyer If your spouse has a lawyer and they are willing to accept

service, you can serve the documents on your spouse’s lawyer A signed Acknowledgment of Service from your spouse’s lawyer

is proof of service This Acknowledgement must be filed with the Court

Divorce – Filing after service

After the documents have been served on your spouse you need to make a copy of the service forms and file the original at the Family Law Registry

If you attend the Court hearing , take the copy of your service forms with you

Divorce – What if you cannot serve your spouse?

If you are having trouble serving the divorce application on your spouse because you do not know their whereabouts you need to take reasonable steps to find their address

The steps you need to take involve: Reasonable efforts to locate spouse Contact family and friends Contact last known place of employment Contact last know place of accommodation Search electoral role File a supporting affidavit to dispense with normal service this

needs to show the Court what steps you have taken to ensure service

Application in a case Maybe ordered to place an advert in paper

Divorce – What if you cannot serve your spouse?

Court may agree to dispense with normal service, though can order you to serve the documents on the parent’s of your spouse

MUST TAKE REASONABLE EFFORTS

Divorce - Hearing

Attendance in court generally only be required if you have children under the age of 18.

Federal Magistrates Court only

Request permission to appear by phone or electronic communication if over 250 kms away

Need to fax a written application to the Federal Magistrates Court

A form from the Federal Magistrates Court needs to be used

Divorce – Decree Nisi and Decree Absolute

If your application for divorce is approved in Court you will be granted a ‘decree nisi’ on that day

Following this one month later you will receive a ‘decree absolute’ and you will be free to remarry

CHANGE YOUR WILL

Terminology

The terminology in regards to Parenting Orders has changed, it is no longer: Custody Residency

Now it is referred to as: Child lives with Child spends time with Orders made in favour of

Parenting Orders - Obligations On Lawyers Amendments to the Family Law Act in 2006 introduced

greater obligations on lawyers with regards to Parenting Orders

Must give the client information relating to non-Court based family services and Court Processes. The legal and possible social effects of the proposed

proceedings on children The services provided by family counselors and family dispute

resolution The steps in proceedings The role of family consultants Counseling facilities in relation to separation Relationships Australia Costs

Parenting Orders - Obligations On Lawyers The following brochures must be given to clients:

Marriage, Families and Separation Pre-action Procedures for Parenting Orders Family Consultants Costs notice x 2 Relationships Australia for Compulsory Family Dispute

Resolution

Relationships Australia is the place to go in regards to Compulsory Family Dispute Resolution, mediation & parenting plans.

Parenting Orders

Parenting Orders come under the Family Law Act 1975

How Court determines the substance of Parenting Orders: What is in the best interests of the child by examining:

The benefit of the children having a meaningful relationship with both parents

The need to protect the children from physical or psychological harm from being subjected to, exposed to, abuse, neglect or family violence

Any views expressed by the children and any factors that the Court thinks are relevant

The likely effect and change in circumstances will have on the children

Parenting Orders

The willingness and ability of the parents to facilitate and encourage a close and continuing relationship between the children and the other parent

The practical difficulty and expense of the children spending time with and communicating with a parent

To provide for the needs of child including emotional and intellectual needs

The children are of paramount consideration

The maturity, sex, lifestyle and background of the children and of either of the children’s parents

Parenting Orders

This includes Aboriginal and Torres Strait Islander backgrounds

Whether either party has failed to take the opportunity to participate in making decisions about major long-term issues in relation to the children, spending time with the children and communication

Under the Family Law Act there is a presumption of: Equal and shared parental responsibility for the child or

children’s long-term welfare, care and development That both parents spend significant and substantial time with

the children – unless not practicable. That both parents have involvement in the children’s day to

day routine unless not practicable.

If equal and shared responsibility for the child is found the Court will then assess if it is in the best interest of the children that they spend equal and shared time with their parents

Parenting Orders

Examples of what Parenting Orders can be comprised of:

Equal and shared responsibility for the child or children’s long-term welfare, care and development

The children live with the mother or father

The children spend time with the mother or father

Alternative weeks living with the mother or father (50/50)

The children spend time with the mother or father on a particular week night

Children spend time with mother or father on alternate Thurs/Fri/Sat/Sun

Parenting Orders

Regular weekly phone communication

Alternative or shared Easter

Alternative or shared Christmas

Shared school holidays

That the children spend time with the father on Father’s Day, and same with the mother

That the children spend time with both parents on their birthdays, and the parents birthdays as well

Any special/religious days at any other time as agreed

Parenting Orders

That both parents notify the other of any emergency involving the children

That both parents be able to access and speak to the Doctors about children’s health

Neither parent denigrate the other parent in front of the children

Neither parent can consume illegal substances while having responsibility for the children

Pick up and drop off place for the facilitation of parents spending time with children

Injunctions restraining parents from leaving the state or area

Compulsory Family Dispute Resolution

The Family Law Act 1975 as amended in 2006 requires parents to obtain a certificate from a registered Family Dispute Resolution practitioner before you file an application for an order in relation to a child.

Relationships Australia provide mediation

Compulsory Family Dispute Resolution

Exclusions to Compulsory Family Dispute Resolution include: Those lacking the capacity to contribute to Compulsory Family

Dispute Resolution

Urgent applications e.g. when a child or children are at risk and their health and wellbeing is going to be or is undermined, parent threatening to take the child interstate or overseas

Applications to the Family Court for Consent Orders

If it is not practicable, for example there is not facilities available to one of the parties

Known family violence

Placing any party in mediation which would put one them at risk

Compulsory Family Dispute Resolution

Certificates that can be awarded are: To the effect that the person did not attend Family Dispute

Resolution with the other party, and this was due to: Refusal The counselor deems it not appropriate to attend Family Dispute

Resolution

Person attended Family Dispute Resolution but did not make a genuine effort to resolve the issue or issues

Parents can get a certificate stating mediation can’t take place or in the application have a supporting affidavit of evidence as to how you meet the exceptions criteria

Compulsory Family Dispute Resolution

If there is known family violence a further form also needs to be submitted to the Court stating that they have attended Relationships Australia and know of the services available to them

If you make a knowingly false accusation of family violence costs may be awarded against you

Urgent Applications

When matters are urgent area:

Child at risk

Parent is threatening to take the child out of the state or country

Apply for legal aid straight away to have proceedings initiated as quickly as possible, and in the case of urgent applications legal aid can be approved within 24 hours and then the application can me made

Forms and processes

Child Recovery Orders

Child Recovery Order is a made by the Court requiring the return of a child

Parent refuses to return child

Child at risk

Child Location Orders

Child Location Orders can be gained through the Family Court to ascertain the whereabouts of the mother/father and the children

An example would be a Commonwealth Information Order seeking Orders for Centrelink to provide contact details to the parent’s lawyer

Complex application must seek legal advice

Child Relocation Orders

Changes to the Family Law Act in 2006 have made it harder to seek Relocation Orders

Those who seek a Relocation Order need to show: Why in best interest to relocate

Based on the principles of Equal and shared parental responsibility for the child or children’s

long-term welfare, care and development That both parents spend significant and substantial time with the

children That both parents have involvement in the children’s day to day

routine unless not practicable The Family Court has a duty solicitor available but will mostly likely not take on your case, or fill out forms for you

To relocate may effectively undermine the Family Law Act and the best interests of the children

Injunctions Restraining Parents Movement

The following is taken into account one parent wants to move away with the children from the other parent:

Equal and shared Parenting Orders under the Family Law Act Involvement in day to day routine Significant and substantial time to spend with children Best interest of the children principles make it

When one parent is intending to relocate with the children and without the other parents consent then an urgent application in the form of an injunction should be made to prevent the other party from leaving with the children

Especially if satisfactory arrangements cannot be agreed as to the other parent spending time with the children

Contravention Of Family Court Orders

A person will have contravened an Order under the Family Law Act if:

Intentionally failed to comply with the Order

Made no reasonable attempt to comply with the Order

Intentionally prevented compliance with the Order by a person who is bound

Aided or abetted a contravention of the Order by a person who is bound by it

Contravention Of Family Court Orders

Consequences can be exposed to: Vary the primary order Order attendance at a post separation parenting program Compensate for time lost with a child as a result of the

contravention Require you to enter into a bond Order you to pay all or some of the legal costs of the other

parties Order you to pay compensation for reasonable expenses lost

as a result of the contravention Require you to participate in community service Order you to pay a fine Order you to a sentence of imprisonment

Contravention Of Family Court Orders

When you are alleging a contravention you need to file: An application alleging contravention A supporting affidavit

Parenting Plans

Parenting Plan scenario’s Informal agreement is not a Court Order, and not binding You do not have to see a lawyer, or have a Court Order but it is

always advised especially if there is a disagreement and potential for future arguements

It produces stability and clear understanding as to who will have the children and when

It reduces disagreement if a written document exists Parenting Plan formulated in consultation with Relationships

Australia, Riverland Community Legal Service or private lawyers

Minutes of Consent mirror Parenting Plan Application in Family Court or Federal Magistrates Court:

Consent Orders Binding, Formal and consequences for breach of contravention

Role Of Family Consultant

If no agreement, no consent, no parenting plan or certificate gained – then the application to Court for Orders follows the following process: Forms Affidavits Hearings Docket system Family Conference

Family Consultants are psychologists or social workers who specialise in child and family issues after separation and divorce

Role Of Family Consultant

They can: Help you and the other party resolve your dispute Assist and advice the Courts and give evidence about your case Write and provide a report to the Courts about your family Advise the Courts about the services provided to families by

government, community and other agencies

Independent Child Representative

The Court may make an Order for an independent representative for the child

If you have money you will have to pay for this.

If not, the Court can make orders for the Legal Service Commission to represent the child

Property Division

Property Division: The property settlement must be just and equitable

You do not have to see a lawyer, or have a Court Order but it is always advised especially if there is a disagreement

It is best to ensure that property division matters are formally finalised preventing either of the parties from coming back at a later date

Encourage pre-action procedures and strong efforts to reach a resolution is best for both parties it saves the parties time and money if they can come to an agreement without going to Court

If agreement can be reached then a Binding Financial Agreement or Consent Orders can be obtained without either party attending Court

In both situations independent legal advice is imperative

Property Division

What the Court takes into account when dividing a property:

Future earning capacitiesNeeds to be taken into consideration if one party is

going to earn substantially more than another

Non-financial contributions of both parties to the acquisition, maintenance of the property of the marriage

Financial contributions of both parties to the acquisition, maintenance of the property of the marriage

Who the children are living with generally get a ruling of 60/40 (rule of thumb)

Property Division

The Court will take into account for the division of property under the Family Law Act 1975:Assets

What did you have at the commencement of the relationship

What do you have at separationWhat property was purchased during the marriage

What is included in assets? House and contents Vehicles Investments, stocks, shares, bonds Furniture, jewelry, art, china, silver, antiques, heirlooms Books, cameras, wine collection, stamp collection Electronic equipment, appliances Records, CD’s, DVD’s etc Superannuation

Property Division

If assets valuation can’t be agreed upon independent valuation will need to be organised at a cost to the parties

Capital Gains TaxWhere any of the assets acquired after 19 September 1985

as you need to take into account any potential capital gains tax issues

LiabilitiesWhat did you have at the commencement of the

relationshipWhat do you have at separationWhat do you have nowTax debtUnder the Family Law Act 1975 you can seek orders

binding third parties eg creditors from only recouping part of the debt from either or of the parents – complex area seek legal advice

Property Division

SuperannuationSplitting and Flagging Orders may be granted by the Court

Property Division

You will need to take into account who has paid these expenses during the marriage, and after separation: Insurance Mortgages Council rates School fees Utilities Maintenance for the children

Must assess whether there is any danger of: Bank accounts being emptied Overdrafts increased Land sold or mortgaged etc Further debts incurred Exploitative use of credit cards Joint accounts being abused Any other property being sold or disposed of

Property Division

If yes, then apply to the Courts for an urgent application seeking an Injunction restraining the other party from disposing or selling the property, and or preventing access to accounts/investments/superannuation funds

Property Division

Assess if there are any issues regarding: Gifts Inheritances

Property Division

If marriage is less than five years need to take into account that most relationships take out what they brought in

Re-finance Choice if one party seeks to purchase matrimonial

property Need to take into account

How much is to be paid out to the other party Mortgage payments Contributions

If consent orders are being drafted under the Family Law Act financial statements are required: Tax returns last three years Full and frank disclosure

Property Division

Property division can be finalised by:

Applications for Consent Orders Minutes of Consent Full and final satisfaction of property division of the

marriage Clean break principle All property of the marriage must be declared, under the

Family Law Act 1975 you must give FULL AND FRANK DISCLOSURE TO THE COURT

Binding financial agreement – independent legal advice, lawyer has to sign statement etc about advice etc Full and final satisfaction of property division Can be registered in family court

Property Division

Once binding financial agreements are finalised and/or Court Orders made by Consent, overturning such will be a serious challenge