Below we have included some answers to some of the most commonly asked questions about Family Law matters. If your question has not been addressed here, please feel free to call us on 07 5503 0233 and book an initial Family Law case assessment consultation with one of our Family Lawyers.
At separation, what happens to money gifted to me by my parents?
In Australia, anything given to a child by a parent is considered to be a gift until proven otherwise.
Inn family law property matters, a gift from parent to child is treated as a contribution to the relationship by the person who received it. The more recent the gift, the more likely it is that the whole of it, or most of it will remain the sole property of the party whose relative provided it. For example, if the money provided by the parent(s) was less than a year before final separation, then there is a good chance that almost all of it will be retained by the receiving party. In contrast, if the gift was made 25 years ago, then it is far more likely that the Court would consider it to be a part of the asset pool for distribution between the parties. This diminution of a contribution over a long period of time is often referred to in family law as “erosion”.
In some cases, and in order to avoid the effects of the erosion principle (described above), a party may claim that the monies received from their parent(s) was not a gift at all but rather a loan. In order to prove such an assertion, there must be real evidence that this was the case such as:
A registered mortgage;
Evidence of other loans by the same parents having been repaid by the parties;
A duly executed loan contract dated at the time of the gift specifying the terms of the loan;
Evidence that interest payments have been made since the loan date;
A valid Financial Agreement made pursuant to the Family Law Act, either before or during the relationship, wherein the parties agree that the monies loaned by the parents shall be excluded from the property pool in the event of separation.
What is the difference between a Parenting Plan and a Consent Order?
If both parents reach agreement after the mediation or at any stage during court proceedings, there are 2 types of formal arrangements that can be made about parenting:
A parenting plan; or
A consent order.
A parenting plan is a document about the child’s welfare, signed by both parents and free from threat, duress or coercion. It is not filed in the court and is not binding or enforceable by the court.
The Court must have regard to the terms of the latest parenting plan when making a parenting order, but will not necessarily enforce the agreement if contested. The Court may find the parenting plan is not appropriate because it is not in the child’s best interests or reasonably practical. The Court has the power to make whatever orders are appropriate in the circumstances.
This is an agreement that has been drafted in the form of an order, signed by the parties and filed in the Court. A Judge or Registrar of the Court will consider the document and make the order in terms of the agreement if satisfied the arrangement is in the best interests of the children. The order is binding and enforceable.
We can assist you in navigating your children’s matter by providing advice in relation to your legal rights and obligations which promote the best interests of your children.
What are the grounds for divorce?
Broadly the technical criteria required for a divorce to be granted is that:
The parties have separated and have lived separately (even if still cohabitating at the same residence) for a continuous period of 12 months; and
There is no reasonable likelihood of cohabitation
In determining the above criteria, the Court may consider such factors as:
Whether the parties continue to cohabitate;
Whether the parties continue to engage in sexual relations;
Whether the parties present themselves in public as a couple;
Whether they care jointly for any children; and
Whether they still support and protect one another.
What is a de facto relationship?
To determine whether parties to a de facto relationship can be considered as a ‘couple’ under the law the following factors may be considered:
The length of the relationship;
The nature and extent of the parties who were living together;
If the parties were engaged in a sexual relationship;
The type of financial arrangements between the parties;
The type of property arrangements between the parties;
The degree of mutual commitment of a shared life between the parties;
Whether the relationship was registered in either State or Territory law;
The care and support of any children;
The reputation and the public aspects of the relationship.
The above factors are considered on an individual basis and there is no obligation to prove each and every of the above factors when establishing the existence of a de facto relationship.
It is important to note that the law is designed to expressly include both heterosexual and same sex relationships.
What are the circumstances which require mandatory notification to child welfare authorities?
A number of professions carry mandatory notification requirements where there is a reasonable concern that a child may be suffering abuse. Some of the professions include teachers, doctors and other medical or mental health professionals, and community service workers.
The Family Law Act 1975 (Cth), compels court staff members, family and child counsellors and dispute resolution practitioners to report any information or suspicions of child abuse to the relevant child welfare authority.
Each party to Court proceedings concerning parenting matters is required to file a Notice of Risk that sets out any allegations of child abuse or family violence.
Do I have a right to have equal time with my child?
There is no presumption of equal time. The Court will often find that equal time may not be in the best interests of the child, for example, when:
There is evidence of high conflict between the parents;
There is evidence of domestic violence;
There is a significant distance between each of the parent’s residences;
There is a difference between the parenting styles of each parent;
The parents demonstrate in inability to communicate effectively; and
The child concerned is very young.
The Court will only make an order for equal shared time if that arrangement is in the child’s best interests and that the arrangement is reasonably practicable.
Am I eligible for spousal maintenance?
The Family Law Act provides that if a party to a marriage/ de facto relationship is unable to support themselves by reason of:
Having the care and control of a child of the marriage/ de facto relationship under 18 years of age;
Age or physical or mental incapacity for appropriate gainful employment; or
Any other adequate reason.
the other party is liable to maintain that party, to the extent that party is reasonably able to do.
At what age can my child decide where to live?
Client’s often ask, “what age can my children decide where they want to live?”
The answer is that there is no specific age.
While the Court takes the wishes of a child into account it is not bound to make a decision in accordance with those wishes. The weight given to a child’s wishes will depend upon the age and level of maturity of the child. The court is more likely to consider the wishes of an older child but may still make orders contrary to an older child’s wishes if it is in the child’s best interests to do so.
A child cannot give oral evidence in the court proceedings so their wishes are usually presented to the court via a family report.
What can I do if the other parent takes our child?
A Court can issue orders to locate and recover the child and invoke the assistance of the Australian Federal Police in urgent situations. An airport watch can be put in place in some circumstances to prevent the child being taken out of the country. In some cases, an order can be made for publication of the details of the abduction in newspapers or the media.
If the other parent or someone related to the child removes the child from your care you should seek urgent legal advice
Will our child get a say in Court?
The views of the child are usually put before the court after an interview of the child by a court appointed expert, usually a psychologist or social worker, who will provide a report in relation to a variety of matters, including the child’s wishes if they are mature enough to express them.
What are my rights as a Grandparent?
The Family Law Act 1975 recognises the role of extended family members and significant people in the child’s life, along with the benefit to the child of maintaining such relationships. Extended family members can apply for orders under the Family Law Act. It is common for grandparents to take on a larger role on birthdays and special occasions such as Christmas, Easter and holidays. In some circumstances the child may be ordered to live with an extended family member, for example when there is evidence that it is not in the child’s best interests to live with a parent.
How can I pay my legal fees if my partner controls all the money?
It is not unusual for there to be a significant disparity in income between a separating couple. In cases where one party controls the money and the other has no access to money for legal fees, the party without access to funds may be entitled to apply for an order that the other party fund part or all of their reasonable legal costs. .
Whether you are entitled to this type of payment will depend on your own, very specific set of circumstances.
Can I move away with my child?
When a proposal is made for child to move to a location where it will make it more difficult for the child to spend regular time with the other parent, this is referred to as relocation.
Relocation cases are difficult because the court must balance the right of the child to have a close and meaningful relationship with both parents with the possible advantages to the child of allowing the relocation (for example better educational opportunities, financial benefits, job opportunities and the like).
Each case is decided on its own facts. It is for the court to decide which proposal (i.e. the proposal of the relocating parent or the proposal of the parent opposing the relocation) is in the child’s best interests.
You should seek legal advice before moving away with a child without the other parent’s permission.
Can I access the cash in my superannuation splitting Order?
Not unless you meet the usual conditions of release relating to age or are otherwise eligible to access your superannuation. The money transferred to your own superannuation fund will be treated the same as your existing superannuation.
I had my business for years before we met, why is my partner entitled to any of it?
All assets and liabilities of each of the parties at the time of property settlement are generally in the pool available for division after separation including business assets. The court will weigh up your contribution to the value of the business at the commencement of the relationship as well as direct and indirect contributions during the relationship.
I had house when we started living together many years ago and my partner had nothing. Do I get compensation?
The court does not provide compensation but rather looks at the financial and non financial contributions of each party to the assets and to the relationship. The longer the marriage, the more likely that the other party has made other financial and non financial contributions.
My partner is a beneficiary in her family's trust but says that is nothing to do with our settlement.
Much will depend on the nature of the trust and your wife's entitlements but it will be a matter that will be given proper consideration in the property settlement. It will either be taken into account as property available for division or as a financial resource of your partner, possibly leading to an adjustment in your favour depending on the circumstances.