family law
The Family Law Act 1975 is the legislation in Australia governing divorce, spousal maintenance, parenting disputes and property disputes including the splitting of superannuation entitlements. The court which usually hears these matters is the Federal Circuit and Family Court of Australia. Local Magistrates courts are also able to hear some family law applications.
Family law disputes and proceedings arise in numerous ways and the type of help you need, or questions you have, may vary. You may simply require some assistance in communicating with the other party to negotiate some arrangements in relation to property or children, or you might be served with court documents requiring you to prepare urgent documentation in response and appear at court. You may have resolved children’s and property issues, but want help with a divorce application. You might wish to apply for spousal maintenance. You might need Consent Orders prepared and filed because you and the other party have reached your own agreement which you would like formalised into a court order.
Requesting an appointment with a solicitor does not necessarily mean you will have to go to court. In fact, seeking legal advice early on can help demystify the process and lead to an earlier resolution. In the aftermath of a separation, it can often be of great benefit to simply have a professional to communicate on your behalf with the other party or their solicitor whilst emotions are raw.
Personal safety intervention orders (ivo)
The Personal Safety Intervention Orders Act 2010 is the legislation governing this area. In many ways the legislation operates similarly to the Family Violence Protection Act 2008, the main difference being - to obtain a family violence intervention order against someone. The main difference is that to obtain a Family Violence Intervention Order, an applicant must consider that person to be a family member (definition of family member - http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/fvpa2008283/s8.html) or domestic partner. The Personal Safety Intervention Order Act 2010 exists for people who have no such relationship with the person from whom they feel they need protection.
property
As with children’s issues, many couples, once they decide to separate, are able to reach an agreement between themselves about how to fairly distribute assets, liabilities and superannuation between them. If that is the case, it is still prudent to have that agreement formalised into an order of the court, so that the agreement is enforceable and so that there is an order of the court evidencing that the financial relationship between the parties is ended. Having that order of the court can be important so that neither party is able, at a later stage, to come back and claim that they are entitled to something more. In these situations, an order of the court can be obtained without the parties having to attend court. That is done via an "Application for Consent Orders". A person or couple is able to complete and file an Application for Consent orders themselves, without a solicitor. You will then only need to pay the court’s filing fee. It is worth knowing however that the particular wording that is used in orders is extremely important in ensuring that the orders are effective and enforceable. For that reason, it is recommended that a person engage the services of a solicitor to assist with drafting and filing the Application for Consent Orders on their behalf.
If you are unable to reach an agreement with the other party about a property distribution, then it is important that you seek legal advice. It is common that one party in the relationship has more knowledge of the parties’ past and present financial situation and it can be very difficult for the other party to know and enforce their rights without seeking legal advice first. Additionally, assets are often held in the name of only one of the parties, making it possible for that party to deal with those assets without the consent or knowledge of the other party. It is much easier for a solicitor to be able to assist you if you seek their advice sooner after separation, than later. When you have sought legal advice, your solicitor will write to the other party requesting full financial disclosure, which is when the parties exchange values and valuations of the assets and liabilities of the relationship/marriage. If, after that, the parties are still unable to reach an agreement, then your solicitor will file an application in the Federal Circuit Court of Australia or Family Court of Australia, asking a judge to make a decision. Even after that application has been filed, most matters still resolve without the matter having to proceed to a final hearing.
The Family Law Act 1975 says, at s79(4), that in considering what order (if any) should be made under this section in property settlement proceedings, the court shall take certain factors into account. Those factors are listed here: http://www5.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s79.html. In summary, the court will look at:
The combined asset pool of the parties (assets minus liabilities);
The contributions – direct and indirect - that each of the parties has made to that asset pool (contributions include financial and non-financial contributions);
The needs of the parties going forward (eg. is one party having the primary care of the children? / does one party's earning potential far exceed the other party's? / does one party have a disability that will affect their earning potential? etc); and
What will a just and equitable outcome look like in this situation?
The court is also able to make an order in relation to superannuation to alter the parties entitlements in a way that the court sees as just and equitable.
The Family Law Act 1975 applies to both married and de-facto couples. For a definition of ‘de-facto’ under this legislation, click on this link - http://www5.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s4aa.html.
Important: A person may make an application under the Family Law Act 1975 for a division of property only within the following time frames:
Where the parties are married, within 1 year after a divorce is finalised;
Where the parties are in a de-facto relationship, within 2 years after separation.
Once that period has expired, a person may NOT make an application to the court for property distribution without seeking leave from the court and explaining the reasons they want to make the application ‘out of time’.
mediation
In most family law disputes, whether they be in relation to children, property or both, mediation can be of huge benefit to the parties, their finances and their children. In any event, the Family Law Act says that except for in certain circumstances (described below), the parties are required to attempt mediation prior to them being permitted to file an application with the court asking for family law orders. A formal mediation with a qualified and accredited family dispute resolution practitioner, will often facilitate an agreement between the parties which keeps the matter out of court and spares the parties and the children much heartache and expense. Litigation (court proceedings) can be a very expensive process. It pits one party against the other in a process which is inherently adversarial and requires each party to give evidence to the court about the other party which is hurtful and from which it may be hard to recover. In most cases, children benefit enormously from seeing that while their parents no longer wish to remain together, they are willing to discuss arrangements and come to an agreement between themselves which is in the children’s best interests.
There are some matters however, such as those involving allegations of serious family violence, child abuse, an intractable dispute or urgency, which are not suitable for mediation. In these situations, a matter must often go straight to court without the parties attempting mediation. When you have an appointment with your lawyer, whether it be as a legal aid client or a private client, your lawyer will discuss your matter with you and make a decision with you about whether your matter is suitable for mediation. If you and your lawyer decide you will not attempt mediation, you must file an affidavit with the court explaining why.
For legal aid clients, Victoria Legal Aid has an in-house mediation program called FDRS (Family Dispute Resolution Service). To be represented on a legal aid basis, a legal aid client must, except in circumstances as described above, attempt a mediation through FDRS. Private clients on the other hand must attempt a mediation through an independent, accredited organisation such as the Family Mediation Centre (or Family Relationship Centre) or Relationships Australia. In any of these mediation with an accredited family dispute resolution practitioner, the parties may be able to reach an agreement which is formalised into a Parenting Plan (a written agreement between the parties which is not a court order) or into Consent Orders which are enforceable by the court. If the parties are unable to reach an agreement, but do ‘make a genuine effort to resolve the matter’ they will each be issued with a certificate called a s60I certificate. That certificate remains valid for 12 months and within that time, any party with a certificate may make an application to a court for family law orders.
family violence intervention orders
The Family Violence Protection Act 2008 is the legislation that governs Family Violence Intervention Orders (IVO’s). Applications for Family Violence Intervention Orders are made in the Magistrate’s Court of Victoria. The definition of family violence under this legislation, is here: http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/fvpa2008283/s5.html. You do not need a lawyer to apply for an IVO. If you have fears about your safety or that of a family member, you may attend at the registry of your local Magistrates Court and complete and file an application there. There is a box on the form you complete which you tick if you feel that you need the immediate protection of an IVO. In that case, you may be asked to give sworn evidence at court that day, explaining the reasons you feel that way. A Magistrate will make a decision about whether they are willing to make an ‘interim’ (temporary) IVO immediately, which will remain in place for your protection until the matter returns to court. You will be given a date on which you must come back to court. Your application, and any interim order that is made on that day, will be served on the respondent (the other party). If, when completing your application, you feel you can wait for the matter to be listed at a hearing within the next week or two, then you will simply be given that court date and you must attend on that date.
An IVO contains certain conditions which can be very limited, or very extensive. If you and the other party are not able to resolve the matter via negotiations at the early court hearings, the matter will be listed for a final contested hearing. If that happens, you should seek legal advice immediately about preparing for and appearing at that contested hearing. If you are a respondent in an application (the person against whom the application has been made), then it is compulsory that you obtain legal representation for that contested hearing. The law does not permit a respondent to directly cross-examine the applicant, or ‘protected person’ – a solicitor must do that on your behalf. If you do not have a solicitor, the Magistrate may make a final IVO made against you without the contest proceeding. Most IVO’s last for around 12 months. Some however may be shorter and some are even made ‘indefinitely’.
A breach of an IVO is a criminal offence. If a respondent is found guilty of breaching an IVO, the penalties are significant and may include imprisonment.
divorce
To apply for a divorce, you must have been separated from your spouse for 12 months. An application for divorce can be made by one party (a ‘sole’ application) or jointly (a joint application). You can file the application on-line or you can send it to the court for filing. Once an application is filed with the court, the applicant/s will be given a court date. If the parties are amicable and decide to submit their application jointly, then neither is required to ‘serve’ the other and therefore do not have to arrange process servers or file service documents with the court. In that situation neither party needs to attend court on the date provided. If there are no children under the age of 18, then neither party needs to attend court even if you submit a ‘sole application’ (one your own, without the other party signing). If however, there is a child or children of the relationship who are under 18, and you are submitting a sole application, you must attend court on the hearing date. That is so that the court can satisfy itself that appropriate arrangements have been made for the child/ren.
There is a filing fee associated with an application for divorce. For a joint application, the parties decide between themselves whether that fee is shared or not. For a sole application, the applicant must pay the filing fee. In some situations the filing fee may be reduced. See the Federal Circuit Court website for the current fee: http://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/forms-and-fees/fees-and-costs/fees-fl/family-law-fees and for information about reduced fees.
An application for divorce can be completed and filed by the applicant or parties themselves. The law does not require you to have a lawyer. Here is the link to the Application for Divorce Kit. http://www.federalcircuitcourt.gov.au/wps/wcm/connect/d9c6e4be-3288-4fc5-9080-e0ffb759beee/Divorce_Kit_0313_V3a.pdf?MOD=AJPERES&CONVERT_TO=url&CACHEID=d9c6e4be-3288-4fc5-9080-e0ffb759beee. This kit includes the actual application but also includes detailed information about how to complete and file the application with the court. Some applications are more complex than others however and some people would prefer to pay a solicitor to appear on their behalf at court rather than needing to appear themselves. Some people prefer to use a solicitor in any event. In a sole application where parties have been separated for a year but they remained living under the one roof for some of that time, then the applicant is required to file an additional affidavit explaining those circumstances and providing evidence that the parties were in fact separated during that time. For applicants who wish for a solicitor to draft and file their application with the court, they will need to make an appointment with private practitioner and pay their fees. Victoria Legal Aid does not assist with applications for divorces.
One month and one day after your divorce hearing, you will be sent a Certificate of Divorce. You must not arrange to remarry before that time.
In situations where the parties have not made an application to the court for property settlement, you should not apply for divorce until that property dispute has resolved. As long as the parties have not yet divorced, then either of them is still able to make an application to the court for a distribution of property. Once a divorce becomes final however, the parties only have 12 months in which to file any application with the court for a distribution of property. After that time they are prohibited from making that property application without the leave of the court.
spousal maintenance
The Family Law Act 1975 enables a party to make an application to the court for ‘Spousal Maintenance’.
The Family Court or Federal Circuit Court deal with two types of spousal maintenance applications:
Spouse maintenance is financial support paid by a party to a marriage to their former husband or wife in circumstances where they are unable to adequately support themselves.
De facto partner maintenance is financial support paid by a party to a de facto relationship that has broken down to their former de facto partner in circumstances where they are unable to adequately support themselves.
Under the Family Law Act 1975, a person has a responsibility to financially assist their spouse or former de facto partner, if that person cannot meet their own reasonable expenses from their personal income or assets.
Where the need exists, both parties have an equal duty to support and maintain each other as far as they can. This obligation can continue even after separation and divorce. In order to determine the extent of the support paid, a court will look at the needs of the applicant, as well as the amount that the respondent can afford to pay.
Upon separation, one party – generally the party who was not the primary income earner in a relationship - may find themselves in a position where they are unable to meet day to day costs for themselves and/or the children. In this situation, it is possible for that party/their lawyer to make an urgent application for the court for financial assistance from the other party. A court is able to make an order, early in the litigation process, for one party to pay an amount either on a lump sum or on an ongoing basis, so that the other party is able to maintain themselves/and or the children, and/or pay their solicitor fees, while court proceedings are on foot.
You should seek legal advice sooner rather than later to discuss these options.