FAQ

Kirra Legal understands that for some clients and even some lawyers, the use of certain language, as well as uncertainty about how the law will impact on their particular circumstances can be complex and confusing.

Many family law clients have never seen a lawyer before and have little knowledge of the law, let alone family law or the family law process, or what options are available to them.

Kirra Legal hopes that these frequently asked questions; while not exhaustive will assist you to expand your understanding and knowledge of family law and most importantly reduce stress.

Questions are divided into relevant sections: if you have a question that we have not answered here, please ask us through our contact us online or call us today on (07) 5536 53 13 and one of our family and relationship lawyers will get back to you.

Is there a time limit to apply for financial or parenting orders?

Yes, married couples must commence court action for redistribution of property of the marriage within one (1) year of divorce becoming final unless, the court gives permission to file an ‘out of time’ application.  Note, there is no time limitation in respect of applications for parenting Orders.

 A party to a de facto relationship must commence an action for redistribution of property of the marriage within two (2) years of separation, unless the Court gives permission to file an ‘out of time’ application.  Note, there is no time limitation in respect of applications for parenting Orders.

Is my relationship a defacto Relationship?

People who were living in a de facto relationship which has broken down may have property and financial matters determined in the same way as married couples.  You are in a de facto relationship with another person if you are not legally married, not related by family and living together as a couple on a genuine domestic basis.  A de facto relationship may be between same or opposite sex couples

In determining if you are living together on a genuine domestic basis, the Court will look at all the following factors:

  • how long you have been living together (the duration of the relationship);
  • whether a sexual relationship exists;
  • whether you share a common residence;
  • the ownership, use and acquisition of your property;
  • the degree of a mutual commitment you have to a shared life together;
  • whether your relationship has been registered;
  • the care and support of children;
  • the reputation and public aspects of your relationship (how you are viewed by others).

You must demonstrate you have been in a de facto relationship for at least two years, unless there is a child of the relationship; or you have made a significant contribution to the other person’s property.

Whether a de facto relationship exists, and questions as to when you separated, and what contribution either of you had made to the other person’s property may create complex issues.

Most importantly, if you consider you are or have been in a de facto relationship and you may have some entitlement to a financial settlement or a claim arising from that relationship, you need to take action within two years of separation.

What is the process for redistribution of financial interests following relationship breakdown?

The threshold question whether any adjustment of property interests is ‘just and equitable’ must be addressed first.  This question will be answered in the affirmative in most cases.  Then property of each party and both of them must be identified and valued.  The contributions made to the acquisition, preservation and maintenance of property must be assessed, at the commencement of the relationship, during the relationship and post separation.  Then the future prospects of each of the parties including age, health, parenting arrangements of any children must be considered.  Finally, an assessment is made to determine whether this process has produced an outcome that is fair and reasonable in the circumstances. Kirra Legal can assist clients seeking financial settlement.

To Leave or Not to Leave the Family Home?

After separation, it often becomes difficult and strained for a couple to live under one roof. A dilemma may arise when it is time for one party to leave the home. The decision as to which party remains in the family home is not a legal issue but a practical one. Whether a party remains in, or leaves, the family home does not affect their entitlements in an eventual property settlement.

The first consideration must be what arrangements will be in the best interests of the children (if any). If it is clear that the children will live primarily with one party, then to avoid disruption to the children’s routine, it is best if the children and their main carer remain in the family home.

If there are no children, then the parties should consider who is most likely to retain the property in an overall settlement, and who can best maintain that property, both financially and otherwise.

Household Items

The party leaving the family home can take their share of the household items. They should also take all of their financial records, such as tax returns, superannuation statements and bank records. These documents will be useful at a later stage when negotiating a property settlement. Remember that financial records may be difficult to obtain once one party leaves the family home.

“Exclusive Occupation” of the Family Home

Once a party leaves the family home, then that party should not re-enter the home uninvited. In other words, the party remaining in the family home should have what is called “exclusive occupation” of the home.

Again, this is not a legal rule – however, it is a good practice in the interests of preventing unnecessary disputes.  For example, it reduces the possibility of the party who has left the home being accused of removing items from the home after they have moved out. It also means that the party remaining in the home is less likely to attempt to change the locks.

Financial Outgoings

The party remaining in the family home (if they have an income) is likely to be responsible for the following types of expenses, without contribution from the other party:

a) rent (if applicable);

b) utilities;

c) groceries and household supplies; or

d) general household maintenance.

If the party leaving the family home is one of the registered proprietors of the property then they will generally have to meet their commitments as a property owner, namely contributing to outgoings such as council rates and land tax.

If a party’s name is on the mortgage, then they are likely to continue to be responsible for contributing to the mortgage instalments, regardless of whether they are living at the property or not.

Overall Property Settlement

For the purposes of an overall property settlement, it is irrelevant whether a party has remained in the family home or moved out.

Ultimately, the overall property settlement must be fair and equitable. Possession of particular items of property at a point in time will not stop the Court from adjusting property interests differently and allocating that item to the other party.

This is general information only, and does not constitute specific legal advice. If you would like further information in relation to this matter or other legal matters please contact Kirra Legal.

What is the process for deciding parenting arrangements for children following separation?

The legal framework for parenting arrangements was laid out in the case of Goode and Goode, and we provide the following summary. The starting point is a rebuttable presumption that it is in the children’s best interest that both parents have equal shared responsibility for long term decisions affecting the children.  The court must then go on and consider whether equal time with each parent is in the children’s best interest, and whether this is reasonably practicable; and if not the court must consider whether  substantial and significant time with each parent is in the children’s best interests.

What if a parent wants to relocate children’s’ residence after separation after separation?

Cases involving relocation of a child are difficult for the Court to decide.  The Australian Family Law Act (the legislation) does not have specific provisions which deal specially with relocation.

We have analysed various decisions on relocation to come up with a potted summary of the approaches taken by the Court in deciding relocation cases.  Generally speaking, decisions in relocation cases apply the same criteria as other parenting cases, namely, what is in the best interests of the child.  There are two types of considerations which must be taken into account when determining the “best interests of a child”: primary considerations and additional considerations.

The two Primary considerations are the most important to consider for issues such as relocation.

Firstly, the benefit to the child of having a meaningful relationship with both of the child‘s parents.  This requires the Court to consider whether the proposed relocation will impede the child’s ability to maintain a relationship with the non-relocating parent.  The effect is compounded where the proposed relocation is overseas.  If such a move is permitted to take place then the relocating parent will inevitably assume a greater role and presence in a child’s life.  Conversely, contact between the child and the non-relocating parent will become less frequent and less regular.  Their relationship may suffer because of distance and difficulties in communication and organising direct contact.  As a result, one or other of the parents will understandably feel aggrieved whatever the Court decides.

Secondly, the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.  This is relevant if the relocating parent can show that it is best for the child to live far from the non-relocating parent to protect them particularly in instances of past abuse toward the child from a parent.

The child’s best interests remain the paramount consideration, but they are not the sole consideration and the following 16 factors may be taken into account:

1.  the child’s views and factors which might affect those views, such as the child’s maturity and level of understanding;

2.  the status quo and reasons why the custodial parent wants to relocate.  Note that a parent wishing to move does not need to demonstrate “compelling” reasons.  If the relocating parent can show a good reason, for example, better job prospects in the other location or moving to cement a new relationship, the Court will find this more convincing than if the parent wants to move for a change of scene.  If the relocating parent intends to move because of the actions of the other parent, [s]he will need to show evidence of those actions and their effect on herself, his/her parenting and the children;

3.  the degree of involvement of the non-relocating parent with the child.  The Court may be more inclined to allow relocation where the other parent has little or no contact with the children or there is a history of domestic violence in the relationship.  If the child has regular and frequent contact with both parents and both parents are actively involved with child, it will be more difficult to persuade the Court to allow a long-distance move;

4.  the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent;

5.  technology and phone contact.  In some cases modern technology like Skype can facilitate a meaningful relationship between a child and parent where the parent and child already have a strong bond that can survive the relocation;

6.  the relocating parent’s “freedom of movement.”  A party’s right to freedom of movement is important.  The child’s best interests will be weighed and balanced with the “right” of the proposed relocating parent to freedom of movement.  However, if necessary, the right to freedom of movement can be outweighed by the Court deciding that there is a need to order an arrangement that is inconsistent with that right but is in the best interests of the child;

7.  the happiness of the relocating parent.  The state of mind and mental health of the parent wishing to relocate will be important.  If the relocating parent is the primary carer and has the child residing with them, the Court will consider whether the parent's mental health would negatively affect their ability to parent if their request to relocate was refused;

8.  the competing proposals of the parties.  The Court will evaluate each of the proposals for the children's living arrangements advanced by each parent.  It is not simply a matter of comparing the relocating party’s proposal against the status quo and allowing or denying relocation.  Rather, the Court must consider each party’s proposal on its own merits, in accordance with the legislation.  If there is conflict between these considerations, the Court will prioritise the child’s welfare.  However, the child’s welfare will not be viewed as a separate abstract concept from the circumstances of the parent with whom the child resides;

While the Court must consider the proposals presented by the parties, the Court may also be required to come up with alternative proposals in the child’s best interests.  Although the Court is not bound by the parties’ proposals, it must not order an arrangement that the parties have not sought without giving reasonable notice and giving the parties an opportunity to be heard in relation to the arrangement;

9.  whether the relocating parent has family in the existing location;

10. whether the relocating parent has family and/or a new relationship in the new location;

11. whether the non-relocating parent is able to move.  In an appropriate case, the Court may ask whether the party who opposes the proposed relocation can move to a place which is close (or closer) to where the child will be living if the relocation goes ahead;

12. whether there are other children involved in either current or new location;

13. the financial implications or career implications of a move;

14. the cost and practical difficulty of the non-relocating parent spending time with and communicating with the child;

15. the extent to which each parent has or has not previously met their parental responsibilities (for example, not paying child support);

16. any events or circumstances since separation.

The legislation requires the Court to consider many factors, but does not provide guidance as to the order in which such matters are to be considered, or what weight is to be attached.

Each case is decided based on the unique facts of the particular case. The discretionary nature of determining the child's "best interests" means that it is difficult for a parent seeking relocation to navigate the process on their own.

If you are thinking about relocating with your child intra-state, inter-state or overseas, it is essential that you receive Family Law advice early on to determine the best course of action.

What about the children in the mediation process?

Separation is a difficult time for everyone, especially children. It can be very comforting for children to see their parents working together to resolve issues, rather than fighting and competing over them. Children are not however, involved in the mediation process, except in very rare circumstances.  Before the mediation conference, Kirra Legal family lawyers will discuss the children's needs and what is in their best interests in relation to disputed issues, which will be a topic of discussion at the mediation conference.