Supposedly, Christmas is the most wonderful time of the year. We should deck the halls with boughs of holly, sneak kisses under mistletoe and feel alive with the glorious twin spirits of love and kindness. It’s the time to remember how lucky we are, a time to spend with loved ones, a time to see the good in everyone.

However, statistically, Christmas is also the time most likely to herald separations. Family law practices all over Australia report a dramatic increase in divorce proceedings every January; approximately ten-thousand couples file for divorce at the end of the festive season.

So, what makes the merry yuletide such a minefield for relationships?

Great Expectations

We know we are meant to be having a great time around Christmas and New Year; and this kind of knowledge tends to make us extra critical. By the time the silly season actually rolls around, we have been steamrolled by ads for the perfect gift, endlessly looped tunes proclaiming merry brightness and countless posts on social media reporting the great time everyone else is having; there is very little chance for reality to measure up. If your marriage is already a little rocky, adding extended family get-togethers, mandatory presents and celebratory drinks into the mix is unlikely to do you any favours.

Celebratory Drinks

Most Australians love to party… even without a special occasion. Give them an actual reason – like Christmas lunch at Mum and Dad’s or Auntie Beryl’s Boxing Day BBQ – and they will rise to the occasion with glee. Unfortunately, especially in a setting as emotionally complex as a family gathering, this is often a recipe for conflict. According to Australian Emergency Services, incidents of domestic violence increase by 157% on New Year’s Eve/Day, a sad climax after a steady rise of altercations over the Christmas period.

Christmas is Expensive

Over time, the financial strain Christmas means for the average family has become nothing short of ridiculous. Presents for children, partners, extended family and friends, paired with the traditional culinary trappings, beverages and, ideally, a summer holiday getaway around the same time… It is not surprising that tensions in the home are on the rise this time of year. Keeping Christmas within your financial means – unless you are vastly rich – coping with some disappointment or at the very least questions about just how disappointing this is for you, while the consumer-storm rages around you. Disappointment, as we all know, can turn into resentment of your partner very quickly.

The Last Hoorah

Of course, not every couple filing for divorce by January was in a good place in late November; many separations have been long in the making. However, especially when children are involved, many couples opt to see through the festive season together, before going their separate ways in the new year. After all, this will give everyone involved a chance to adjust to the new situation and get used to new arrangements before the next Christmas rolls around.

Moving On

If you are already struggling in your relationship, it is a good idea to remind yourself at the start of the Christmas season, that the next few weeks are unlikely to improve matters, no matter how determined you are to make this the most harmonious, perfect Christmas ever. In fact, it is probably best to enter the celebratory fracas with as little expectation as possible – good or bad.

If you feel there is no better way to start the new year than making a clean break and moving on as far as your relationship is concerned, know that you don’t have to spend the last of your Christmas-battered funds on expensive divorce lawyers.

 

It’s understandable to feel confused by all the technicalities and terminology used in the legal space, especially if your mind is already preoccupied with your separation or divorce.

Usually, two terms many people use interchangeably are ‘property settlement’ and ‘divorce’.

Their meanings get confused because both processes involved negotiating with your former partner and seeking professional guidance from a lawyer. However, there are important differences.

To help you, let’s briefly discuss the difference between divorce and property settlement.

What is property settlement?

Property settlement refers to the division of assets and debts between parties and is usually negotiated shortly after a separation, as there are time limits imposed.

For instance, you and your partner decide to get a divorce or undergo legal separation. Either the two of you or the Court will then work on splitting your combined net assets through a property settlement process.

Married couples can apply to the Court for property settlement for up to a year after an official divorce has become final, while de facto couples can do so for up to 2 years from the date of separation.

What is a divorce, then?

A divorce is a legally recognised Order made by the Court that you are no longer married. However, a legal divorce does not deal with the division of your assets or parenting arrangements.

Keep in mind, too, that the Court isn’t concerned with whether any party may be at fault for the marriage breaking down.

To obtain a divorce, what you need to show is that you have been separated from your spouse for 12 months and 1 day and that your marriage has broken down irretrievably with no prospects of reconciling.

You can also obtain a divorce if you and your partner have separated but been living under the same roof for this time too.

How to apply for divorce in Australia

In order to apply for divorce in Australia, either you or your spouse must meet one of the following criteria:

  • Born in Australia or have become an Australian citizen by descent (born outside Australia and at least one parent was an Australian citizen and your birth is registered in Australia)
  • An Australian citizen by grant of Australian citizenship (If so, you will need your citizenship certificate when filing your application)
  • Lawfully present in Australia and intend to continue living in Australia. (You must have been living in Australia for at least the last 12 months. In some cases, you may need to present your passport showing the date of arrival at least one year prior and/or a valid or current visa)

You might have heard about spousal maintenance when discussing property settlement arrangements or divorce in general.

Spousal maintenance can either make you responsible for financially supporting your former partner, or ensuring you receive financial assistance from your ex-partner.

This is a complex situation. So, to understand how it works, here is some important information about spousal maintenance.

What is spousal maintenance?

The Family Court of Australia defines spousal maintenance as “financial support paid by a party to a marriage to their former husband or wife, or 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.”

In short, spousal maintenance is like child support – but for adults.

It works by giving your former spouse or partner the means to maintain their needs: either by providing periodic payments for an amount of time, a lump-sum payment or a transfer of assets.

How to know if you are entitled to spousal maintenance?

Spousal maintenance only occurs if the paying spouse or partner is reasonably able to do so and only if their former spouse or partner is unable to support themselves for any of the following reasons:

  • Having the care of a child (who is not yet 18 years old) of the marriage or de facto relationship
  • They have an age, physical or mental capacity that hinders the person from obtaining and maintaining meaningful employment
  • Any other adequate reason stated in Section 75(2) of the Family Law Act 1975

For de facto couples, spousal maintenance may be applied for if the relationship broke down after 1 March 2009, provided certain criteria has been met.

When making decisions for spousal maintenance, the Court takes into consideration the matters discussed in Section 75(2) of the Family Law Act 1975 (“the Act”) for married couples and Section 90SF of the Act for de facto couples.

Generally speaking, these are the key criteria for both married and de facto couples that the Court uses when assessing a person’s entitlement for spousal maintenance:

  • The age and state of health of each person
  • The income, property and financial resources of each person
  • the physical and mental capacity of each person to gain appropriate employment
  • Whether either person has care or control of a child of the relationship
  • The commitments of each person that are necessary to enable that person to support either themselves, a child or another person they have a duty to maintain
  • The responsibilities of either person to support any other person
  • The eligibility of either person for a pension, allowance or benefit
  • A standard of living that is reasonable in the circumstances
  • The extent to which payment of maintenance would increase the earning capacity of the payee spouse or partner by enabling that person to undertake a course of education, training, establish themselves in a business or obtain an adequate income
  • The effect of any proposed Order on the ability of a creditor to recover a debt from a person of the marriage or de facto relationship
  • The extent to which the payee spouse or partner has contributed to the income, earning capacity, property and financial resources of the other person
  • The duration of the relationship and the extent to which it affected the payee spouse or partner’s earning capacity
  • The need to protect a person who wishes to continue that person’s role as a parent
  • Financial circumstances relating to cohabitation with another person
  • The terms of any Court Order made or proposed to be made concerning the property of the couple, including any child support that a person has provided, is to provide, or might be liable to provide in the future for a child of the relationship
  • Any fact or circumstance which, in the opinion of the Court, the justice of the case requires to be considered
  • The terms of any financial agreement that is binding on a person of the marriage or de facto relationship

Keep in mind that the former couple’s standard of living is not an obligatory factor, but just more of a consideration.

It’s actually a misconception to assume that both people are entitled to the same standard of living as when they were together.

What are the 3 types of spousal maintenance?

There are 3 types of spousal maintenance which a separated person can apply for:

Urgent maintenance

The Court can make an Order for urgent maintenance pending the finalisation of the proceedings if:

  • A person is in immediate need of financial assistance; and
  • if it is not practicable in the circumstances to determine immediately what Court Order, if any, should be made.

Interim Order for maintenance

This is a Court Order that obliges the payee to pay spousal maintenance to the other person until a further Order is made or final settlement has been achieved.

Final Order for maintenance

This is a Court Order for spousal maintenance which forms part of the final settlement and is generally for a specified time or a lump sum amount.

When do maintenance orders become terminated?

In the case of married couples, Section 82 of the Family Law Act 1975 states that an Order for spousal maintenance will end during any of these situations:

  • The person receiving maintenance dies
  • The person liable to make payments under the Order dies (unless in certain circumstances where the Order is expressed to be binding upon the personal representative of the deceased)
  • The person receiving maintenance becomes married again (unless in special circumstances)

These factors are also the same for de facto couples, as detailed in Section 90SJ of the Family Law Act 1975.

Are there time limitations in the application for spousal maintenance?

For married couples, the application must be brought to the Family Court or Federal Circuit Court within 12 months of the date of a divorce order becoming final. For de facto couples, on the other hand, the application for spousal maintenance must be brought before the Court within 2 years of the date of separation.

The Court has the right to refuse the spousal maintenance application if this time has passed.

However, it is possible to permit an application for spousal maintenance to proceed out of time – given, of course, the Court is satisfied that:

  • One partner or the child would suffer hardship
  • If the applicant would have been unable to support themselves without an income-tested pension, allowance or benefit at the time of making the application

On application by a person, the Court has the power to modify spousal maintenance orders at any given time.

To make amendments in a Spousal Maintenance Order, the following conditions must be met since the order was made or last varied:

  • The circumstances of one or both persons have changed
  • At least 12 months has elapsed since the Order was made or last varied and the cost of living has changed enough to justify modifying the Order
  • Where the Order was made by consent, the amount payable under the Order is not proper or adequate
  • For an Order binding on a personal representative of a deceased estate, the circumstances of the estate justify modifying the Order
  • Material facts were withheld from the Court, or false material was given to the Court when the Order was made or last varied

If in doubt, always seek legal advice about spousal maintenance.

What happens to your kids after a divorce or separation? Who bears the responsibility of making important decisions in their lives?

Well, in many cases, it’s actually the Family Court that decides if it’s best for your children to have both parents share parental responsibility or whether just one parent have sole parental responsibility.

Let’s define parental responsibility first.

Parental responsibility refers to all the duties, powers and authority the law gives parents to make long-term decisions for your children.

These laws take into account considerations such as plans and actions regarding each child’s well-being including their education, medical treatment, lifestyle and home life.

What is considered a major long-term decision?

A long-term decision regarding children includes essential issues that have a significant influence on the life of children such as their care, welfare, upbringing and development.

Often, such major long-term decision regarding parental responsibility involves:

  • Name – What will the child be called? Who gets to register their name?
  • Education – Where will the child  go to school? What kind of education is best?
  • Religion – What kind of beliefs should the child be exposed to?
  • Health – The child having an operation or significant medical treatment?
  • Home and relocation? – Where will the child  live? Can the child will leave the country or not?

This list can extend as your children grow.

For instance, other decisions which parents like you might need to address in the future include recreational activities or psychiatric or psychological treatment.

What happens when you and your former partner have equal shared parental responsibility?

For equal shared parental responsibility, both parents have a say in making major long-term decisions. It means you and your former partner need to consult each other and make a genuine effort to arrive at a joint or mutual decision.

In other words, you have a joint parental responsibility to care for your children.

How about sole parental responsibility?

Sole parental responsibility, on the other hand, is a parental responsibility order that allows for only one parent to make major long-term decisions for children.

Sole parental responsibility may be considered appropriate in situations where:

  • There has been abuse or there is a risk of abuse to the children
  • A parent has perpetrated family violence against the children, or the children have been exposed to family violence
  • There is a risk of harm to the children
  • It is impractical for both parents to share decision-making for the children
  • There is an inability of the parents to communicate to such an extent that the children would be affected because decisions would likely to be unable to be made when necessary
  • A parent is not contactable
  • A parent has chosen to be absent from the children’s life or chosen not to consult with the other parent in making decisions

What is the common presumption about equal shared parental responsibility you should know?

In cases where there are no parenting orders or plans in place, it is presumed to be in the best interests of your children for both their parents to have equal shared parental responsibility.

If a parenting matter is brought before the Court, the presumption is also applicable unless the Court orders otherwise.

Such presumption stands to encourage positive co-parenting – allowing you and your former partner the ability to be involved together, consult with each other and have an equal contribution in the long-term decision making of your children.

Take note, however, that this presumption of equal shared parental responsibility only works for the direct parents of the children. Nevertheless, a person who is not a parent of a child can still apply to the Court for parenting orders.

When is the presumption of equal shared parental responsibility not applicable?

The presumption of equal shared parental responsibility comes with exceptions. It can’t be implemented if there are reasonable grounds to believe that a parent (or person who lives with a parent) has:

  • engaged in abuse of the child or another child who was a member of the parent’s family
  • engaged in family violence
  • when making an Interim Order, the Court considers it would not be appropriate to apply the presumption
  • the Court is satisfied it is not in the best interests of the child

What about equal care arrangement?

Once a Court Order has been made for equal shared parental responsibility, you must keep in mind that the presumption of equal shared parental responsibility relates only to the allocation of parental responsibility – not the amount of time the children should spend with each parent.

A Court will not issue a Parenting Order for the children to spend equal time with both parents or have an equal care arrangement, simply because they have made a Court Order for equal shared parental responsibility.

However, if an Order is made for equal shared parental responsibility, the Court must consider these factors:

  • Whether the children spending equal time with each parent is in their best interests
  • Whether the children spending equal time with each of the parents is reasonably practicable
  • Whether the children spending substantial and significant time with each parent would be in their best interests
  • Whether the child spending substantial and significant time with each parent is reasonably practicable

If in doubt, always seek legal advice about parental responsibility.

Separation and divorce can be a confusing time for everyone. Emotions are running high and the stress can make it a tough time to make decisions, especially when it comes to parenting arrangements.

During times like this, it’s easy for parents to get caught up in negotiating the terms involved in parenting plans and parenting arrangements; but at the end of the day, the most important thing to consider is what’s in the best interests of a child.

The Family Court system defines two types of parenting arrangement considerations to factor in when it comes to a child’s best interest: primary considerations and additional considerations.

What are the primary considerations in parenting arrangements?

  • the benefit of the child having a meaningful relationship with both parents; and
  • the need to protect the child from physical or psychological harm or being subjected or exposed to abuse, neglect or family violence.

As you can see, the wellbeing and protection of the child’s immediate needs are the primary considerations the Court will consider when they are making decisions around parenting arrangements and Court Orders.

Because of this, the Court places greater emphasis on primary considerations.

What are additional considerations in parenting arrangements?

The Family Court has additional considerations that it takes into account, such as the child’s personal preferences and relationships as well as emotional, intellectual and physical needs.

As the name implies, these are additional considerations to a child’s immediate well-being – however, they’re still relevant in Parenting Agreements and Court Orders.

These can include:

  • any views and wishes of the child that the Court believes are relevant in a separation, such as a child’s maturity and level of understanding of the situation
  • the relationship between the child and each individual parent
  • the relationship between the child and other significant people in their family life (such as grandparents, step-parents or relatives)
  • each parent taking up the opportunity to: participate in making major long-term decisions about the child, spending time with the child and communicating with the child
  • each parenting fulfilling their obligations to nurture and look after the child
  • the likely effect of any changes in the child’s circumstances, including separating the child from: either parent, and any other significant person (such as grandparents, step-parents or relatives)
  • the Court must also consider whether the practical difficulty and expense will significantly impact the child’s right to maintain a relationship with both parents regularly
  • the Court will also consider the capacity of each parent or other significant person in their life, in their ability to provide for the physical, emotional and intellectual needs of the child
  • the child’s maturity, gender, lifestyle and background
  • the parents’ maturity, gender, lifestyle and background
  • if the child is of Aboriginal or Torres Strait Islander: the child’s right to enjoy their culture; and the likely impact any parenting orders will have on that right
  • the parent’s attitude to the child and responsibilities of parenthood
  • any family violence involving the child or a member of the child’s family
  • if there is, or has been a family violence order: the nature of the order, the circumstances in which the order was made, any evidence in those proceedings, any findings made by the Court in those proceedings; and any other relevant matter
  • making an order that would be least likely to lead to further Court proceedings; and
  • any other fact or circumstance that the Court thinks is relevant.

These factors are relevant when determining a child’s best interests in a separation.

While the Court places more weight on primary considerations, these additional considerations are still important in Court Orders and Parenting Arrangements.

Everyone’s situation is unique, which is why the Court tailors its decisions around these factors based on individual circumstances. However, the child’s best interests will always be the main focus during a separation.

If you’re unsure, seek legal advice about your parenting arrangement, separation or divorce.

In this day and age, shared parenting has become more common than ever, and sorting out parenting arrangements for your children in combination with parental conflict can take a huge toll on both parents and children alike. During these times, it’s understandable for parents to become preoccupied with the emotional stresses of the split, that they may forget to focus on the needs of their children.

This can lead to mistakes which can have a detrimental impact on the outcome of your case or work against you when it comes to parenting arrangements and Court Orders.

Because of this, it’s important to be prepared with the likely obstacles you will face – not only legally, but emotionally and financially as well.

Below is a list of the frequent mistakes parents can make when involved in parenting separation matters, so you know what to avoid for the good of everyone.

Criticising the other parent to the child

This is, unfortunately, the most common mistake parents make and can be displayed by both mothers and fathers alike in many cases.

For most parents, the reality is that their child is very aware of the conflict that goes on between both sides of the separation, as well as the interactions between both parents. This leads to the child acting as a ‘neutral listening post’.

What many parents fail to realise is that, amid their heightened emotions, the child can suffer in many different ways. A child’s emotional wellbeing can be impacted by the negative views of one parent towards the other, making them feel pressured to take sides.

It is important to remember that children are often curious and will likely overhear your conversations with friends and family. Bearing this in mind, be cautious of how you speak about your spouse when your child is around, as it can undermine the relationship that your child has with the other parent.

As children grow older, even into adulthood, they tend to look at their parent’s behaviour and may judge you if they perceive you have undermined their relationship with the other parent.

Apart from the impact on your children, denigrating the other parent may also cause the Family Court to look unfavourably upon you as Judges are very aware of the impact this has on children. Such behaviour can see parenting arrangements and Court Orders change drastically, simply due to how one parent refers to the other.

The most effective way to combat this mistake is to ensure that you have proper channels of stress relief.

Speaking to a Psychologist, a Psychiatrist or a GP is a good way to ensure you have the emotional support necessary to cope with your concerns over your separation by providing you with assistance.

Trying to make your child feel sorry for you, even if unintentional

This issue is referred to by the Family Law Courts as “attempting to align a child’s views to those of a parent”, or parental alienation.

This is a particularly harmful act, as it has the same consequences upon your child as discussed in item 1 above. It can also demonstrate to the Court you are not child-focused and suggests an issue of your inability to co-parent and act in the child’s best interests.

It’s also not helpful for your own relationship with the child as it effectively reverses the parent/child role, with your child taking on the role of the protective parent. Children require your guidance, and not the other way around.

Such behaviour can be seen as malicious, with a deliberate intention to hurt the other parent – such as telling the child that the other parent doesn’t pay for anything and to ask them for money, or telling the child that the other parent is a bad person for whatever reason.

However, subtler, unintentional forms of drawing sympathy can also cause harm, such as crying in front of the child, telling the child that the other parent is taking you to Court and expressing distress over the family breakdown such as providing details about not being given any money or being ‘kicked out’ of the family home.

The potential impact your sub-conscious behaviour can have on your child can be significant and, in most cases, cannot be undone. So, you must always be mindful of your actions and behaviour around your child during a separation or divorce.

Not trying to communicate with the other parent

This is a major issue for two reasons, the most important of which is that your children need to see their parents communicating for the good of their well-being. Failure to communicate with the other parent can be extremely detrimental to many aspects of your child’s life, including medical care, education and social development.

Children miss out on things when their parents can’t communicate. They also learn to play one parent off against the other, trying to get what they want.

The second reason is that the Family Court may take a negative view against you if you fail to try to communicate with the other parent.

In parenting matters, the Court’s primary concern is the best interests of the child – which is what its decisions will be based on. Failure to communicate will appear to that Court as if you’re not willing to promote the relationship between the child and the other parent, which is an essential part of parental bonding and social development.

You don’t need to be best friends. But you chose to have a child together, so the Court expects that you behave in a child-focused manner and exchange important information for the sake of your child. If you find it difficult to talk with the other parent, you may want to agree on one medium of communication that will minimise conflict. Many separated parents prefer to email, text, or use a communication platform, as they find that written communication elicits less emotion and keeps conversations more child-focused and appropriate.

If the Court considers that you are genuinely not willing to promote a relationship between the child and the other parent without good reason, there is a risk that the Family Court will say a shared care relationship can’t work and the other parent may become the primary carer. In some cases, they may even be given sole responsibility for major long-term decisions.

Preventing Access to a Child

While many parents believe they may be doing the right thing by withholding the child from contacting the other parent, it’s often one of the worst things a parent could do.

There are some cases where there is a need to protect a child from being physically or emotionally harmed. However, if there is no risk to the child, then the Court expects to see both parents are open and keen to demonstrate that they are willing to co-parent and promote a relationship between the child and the other parent. If you withhold a child from the other parent without a good and justifiable reason, you could find yourself losing primary care of your children for your failure to show a willingness to encourage the children’s relationship with the other parent.

Having said that, there are some circumstances where it is essential for a parent to withhold the child from access by the other parent. These are when serious situations arise where the child is at risk of harm, be it emotional or physical, and in need of protection from the other parent.

Some instances where this is deemed necessary can include:

  • The other parent is violent towards the child
  • The other parent is taking drugs in the presence of the child
  • The other parent is the victim of domestic violence and the child may be exposed to this behaviour
  • There is a risk of the child being exposed or subjected to sexual abuse
  • The other parent may potentially expose the child to harm
  • The other parent has done or said something to make you believe that they will not return the child at the end of their access visit.

If your concern for the child’s well-being is so serious that it causes you to prevent access to the other parent, we strongly recommend attempting to maintain some form of contact with the child and the other parent (perhaps by phone or video link such as Facebook Messenger or Facetime) or arranging supervised visits (if appropriate) until Court Orders are made by the local Family Court. This will show the Court that you are serious about attempting to maintain a relationship between the child and the other parent, while maintaining the safety and well-being of the child.

Remember, withholding access to a child without any justification can have serious ramifications for you in Court proceedings. So, you may wish to seek legal advice as to possible alternate measures and if your actions are reasonable before denying access.

Lying About Drug Use or Alcohol

Drug and alcohol abuse is not uncommon in family law situations or parental separations. What is also common is the frequency of parents who try to hide or deny the use of drugs or alcohol.

Many parents with a history of drug and alcohol consumption understandably believe that their use of such substances will impede upon their chances of gaining parental responsibilities in parenting arrangements.

This can be the case, however, it is important to recognise that the Family Law Courts are not as concerned about drug or alcohol use as much as they are concerned about how use may impact your children and your ability to be a good parent.

Taking steps to minimise substance abuse, such as counselling or rehabilitation, and making an effort to stay away from drugs and alcohol during visits with the child can show the Court that you can maintain self-control and will improve your chances of having further contact with your children.

Remember the Court is more concerned with your future ability to care for your children appropriately, rather than your past.

Splitting up the children

It is becoming more and more common to see blended families today. The Court will take into account the relationships between all types of siblings, including half-siblings and step-siblings – not just biological siblings.

In the instance that parents with blended families separate, it is important to consider the impact on the children if they are split up. People tend to focus on only the biological children of the parents and fail to accommodate for the other children involved.

Seeking to separate the children may suggest to the Court that the parent is not child-focused. The Family Court does not usually like to separate children unless they have no other option.

It may be wise not to ask the Court that children be separated and consider alternative measures instead. However, on occasion, the Court may decide that the best option to accommodate all of the children’s best interests and their well-being is for them to be separated.

We recommend you seek legal advice in this regard, as it applies to your individual circumstances.

Not Being Properly Prepared for Court Specialists and Court Experts

Family report writers are called on to be impartial and provide recommendations based on the best interests of the child.  The Court places a high level of trust in family report writers’ observations of the parents and interactions with the children.

Although it is a common part of many family law matters, people tend to underestimate the importance of family reports and the interviews conducted with all parties during the separation process.

Many Judges rely heavily on the recommendations of the family report writer or psychologist, giving great weight to the analysis of these experts having interviewed all relevant parties and the children, before giving their independent opinion.

While decisions aren’t always made solely based on family reports by court experts, they weigh heavily on the decisions made by the Court (such as Court Orders).

You must let your children speak for themselves as children will normally be quite honest, or are bad liars when questioned during family report interviews. It will be obvious to the report writer when a parent has tried to coach the child for the interview. Children do not like to be made to choose one parent over the other and any manipulation by one parent will display unfavourably in the written report.

To prepare for a family report interview, you should practice refraining from saying anything negative about the other parent. This will help you to be more balanced and child-focused during the interview process.

Remember, from the moment you speak to the family report writer or their secretary on the phone to arrange interviews, through to arriving in the reception area, interacting with your children and speaking to the other parent, right up until when you leave the interviews, everything you say and do is being observed.

Allowing Children to Play Parents off Against Each Other

When parents fail to communicate or are competing for the affection of their children, children tend to play one parent off against the other – which then causes parents to lose their ability to co-parent effectively.

Rules and structure are vital to the growth of a child. So, when this is lacking, it tends to encourage children to test the boundaries of both parents, often seeing an opportunity by making one – or both – parents feel guilty.

While children may test the boundaries from time to time, they need their parents to make decisions for them.  If you cave in to your child’s demands, it can lead to bad parenting decisions and increasing parental conflict.

A good way to avoid this happening is to ensure communication between parents relating to the separation is not in the presence of the child.

Involving Children in Adult Conflict and Legal Proceedings

As far as Judges are concerned, family law proceedings are for the involvement of the parents only and children should not be involved in any aspect of the case. A courtroom is no place for a child and anyone under 18 years is not permitted in the family law courtrooms without the Judge’s permission.

There are many reasons why your child should not be involved in the court proceedings and this includes showing your child court documents. It is considered extremely inappropriate because you are involving your child in adult issues that children should not be privy to. Your child may not be aware of various matters, such as drug use, an affair or instances of poor parenting.

Children often see their parents as heroes, and information that may be exchanged through family law proceedings is not something your child needs to know. You may hinder a child’s view of the other parent, or even their view of you in some cases and undermine the relationship between the child and parent.

If deemed necessary, the appropriate way to include a child’s wishes is by arranging a family report.

Not putting the children’s best interests ahead of your own decision making

Understandably, people can often become completely consumed by their separation. But when parents are completely entrenched in parenting separation matters, it can often lead to them focusing on their own interests and the negative things about the other parent, over and above what is best for their children.

A common example is living arrangements. For example, wanting to live somewhere that is close to work, wanting your children to live with you to minimise child support, or not agreeing to the other parent’s parenting plan because you don’t want them to dictate when you see the children.

It’s common for parents to put forward their own agendas to be portrayed as if it is about the interests of the children. The Family Court sees this time and time again and can easily identify when parents aren’t being child-focused.

Before you make a decision that concerns your child, it is best to ask yourself if what you are about to do is truly in the best interests of your child. If the answer is no, then it should be avoided as the Court will likely see it as you putting your needs ahead of your child.

The ultimate decision of the Court will always reflect the best interests of the children.

While Judges will investigate the many factors involved in determining their decision, they are human, so they will still be influenced by their own opinions. This means it is incredibly important to act in a way that will not leave them questioning your judgement.

If you aren’t sure you’re doing the right thing, it’s important to seek legal advice.

Going through a divorce or legal separation is already an overwhelmingly emotional experience. You also need to deal with negotiations regarding property settlement.

However, one of the most difficult parts of this process is trying to settle on the ideal parenting arrangements for your children.

It’s easy to get confused or feel discouraged due to unreliable myths you often hear people say about parenting arrangements and parenting orders.

To help provide some clarity, here are the 10 common myths around parenting agreements during a separation or divorce.

The mother always has more power

The Court will always prioritise what’s best for your children’s interests when it comes to deciding on who they should live with. As such, it’s wrong to assume the Court will place a bias on gender or that mothers have the upper hand in this matter.

Remember – there are no laws that state children should live primarily with the mother rather than the father after a separation.

Parenting plans are binding

Parenting plans refer to the agreements signed off by you and your former partner, but which are not submitted to the Court for approval and formalised into Consent Orders.  These are not legally binding and cannot be enforced by the Court if they are breached.

Parenting Orders, whether made by consent or decided by a Judge, are the only formal document that can be enforced by the Court. Therefore, serious consequences and penalties such as payment of fines, compensation, community service, or imprisonment can be ordered against either parent due to a breach.

Getting a Court Order is the solution if both parents can’t agree

You can’t go straight to Court and demand for the Judge to make an immediate Order just because you and your former partner or spouse can’t reach a compromise for your parenting matters.

There is a significant amount of time and work involved in preparing court documents, and it’s also common to experience delays for several months before your case may even be listed for the first hearing.

Unless it’s urgent or there is a real risk of harm or abuse to the children, parents must focus on a more serious attempt of mediation – making a genuine effort to reach an agreement before court proceedings can be filed.

There is no need to consult with the other parent about decisions affecting the children

If there are Parenting Orders for joint parental responsibility, you are required to consult and negotiate with your former partner or spouse when making major long-term decisions for your children. You also need to disclose important information like your children’s medical appointments, school information and travel plans.

You could be in breach if you do not comply with Parenting Orders that have been made by the Court. The other parent may file a contravention application against you, which could then have serious consequences resulting in penalties being imposed by the Court.  The other parent may also apply to the Court, and be successful, in varying the  existing Parenting Orders, on terms which you may not agree with.

Even if there are no Parenting Orders, the Court may still decide that you should have consulted the other parent about major long-term decisions such as schooling and education, religion, serious medical appointments or relocating with the children.

For example, if you unilaterally change the children’s school or relocate with the children so that it impedes on their relationship with the other parent, the Court may make an Order that the children be returned to their previous school or that the children be returned to live within close proximity to where they were living before.

Your children can make their own decisions about where they want to live once they turn 12 years old

Your children can express where they wish to live, but this is just one factor amongst many things the Court will take into consideration when determining the appropriate parenting arrangements for them.

The law sets no exact age at which children can decide for themselves where they want to live or stay. As such, the Court takes into account their age, maturity and reasons and understanding of the decision when considering their preferences.

Divorce applications deal with parenting arrangements

Your divorce application only deals with obtaining your divorce so that you are no longer legally married. However, it doesn’t automatically put parenting arrangements in place.

Ensuring a Parenting Order is made, either by consent or by a Judge, is the key to formalising your parenting arrangements to make them binding and enforceable.

There is nothing you can do when the other parent is bad-mouthing you

This is not true. You can actually seek orders that prevent your former partner or spouse from denigrating or insulting you or your family members or other significant persons to your children.

It’s not necessary to follow Court Orders

Serious ramifications can result from breaching Court Orders. Since the Court holds the power to issue penalties ranging from fines up to imprisonment, it is not wise for you to breach Court Orders – especially without seeking legal advice first.

A Parenting Order will override any Domestic (Family ) Violence Orders

This is not always the case.  Under Australian domestic violence laws, the local Magistrates Court which deals with family violence matters must consider any existing parenting orders. Nevertheless, it does not mean that the domestic violence Courts will limit their powers so as to make Protection Orders (i.e. Domestic Violence or Family Violence Orders) that are consistent with the existing parenting ones, particularly when the safety of your children is at stake.

The local domestic violence Courts may revive, vary, discharge or suspend parenting orders.

The Family Law Courts must take into account the child’s best interests being the paramount consideration, and to the extent possible ensure the Order is consistent with any Family Violence Order and does not expose a person to an unacceptable risk of family violence.  The Order may include safeguards the Court considers necessary for the safety of the children or persons affected by the Order.

When a Protection Order contradicts a Parenting Order, you may need to apply to the Family Law Courts to obtain a declaration that that the Parenting Order is inconsistent with an existing Family Violence Order and the Family Violence Order is invalid.

Not spending time with children means there’s no need to pay for child support

If you are the biological parent of your children, you bear the duty to maintain and provide financial support to them, regardless of whether you’re spending time with them or not. You  need to offer financial assistance, even if the other parent prevents you from spending time with your children.

The amount you’ll pay is assessed and determined by the Child Support Agency based on factors such as how much overnight time each parent has the children in their care for, the earnings of each parent and the age and needs of each child.

If in doubt, always seek legal advice about parenting matters.

Have you been searching for answers regarding the “divorce property settlement time limit” or the “de facto property settlement time limit” or the “spousal maintenance time limit”?

It’s quite a common question during a separation or a divorce.

One of the most important things you must manage when undergoing a divorce or legal separation is the property settlement process. To make sure you avoid any further difficulties, it’s important to know and abide by the time limit.

You don’t want to miss having claims on your assets just because you missed the deadline required.

So, to help, here are some key points you should remember about time limits for property settlement and spousal maintenance.

What is the property settlement and spousal maintenance time limit after a divorce or separation?

If you are married, the time limit is one year after your divorce becomes final. On the other hand, if you are in a de facto relationship, the time limit is two years from the date of separation.

The property settlement process can begin any time after separation. Commencing property settlement negotiations soon after you and your partner or spouse have separated can help you finalise things without having to go to Court. It can enable each of you to work out if you can afford to adequately support yourself, now living separately, or whether you need any financial support from your former partner or spouse (spousal maintenance).  It also allows property settlement proceedings to begin before the time limit ends, should you not be able to reach an agreement and opt to file for a Court application.

Handling your property settlement matters as early as possible will lessen the risk of the negotiations taking longer than you expect.

Keep in mind that when the time limit passes, you can lose your rights to seek a property settlement or payment of spousal maintenance – so it’s best to act sooner than later.

What if the time limit has already passed?

Once the time limit passes and you have not yet filed proceedings for property settlement and/or spousal maintenance, then you need to ask permission from the Court.

This pertains to the process of obtaining “the Leave of the Court” to proceed with Property Settlement or Spousal Maintenance out of the allowed time frames. Leave is usually only granted in exceptional circumstances and there are strict requirements that must be met. It’s best, then, to consult a lawyer to ensure you follow the right guidelines.

What are the grounds for obtaining leave to proceed for property settlement after the time period?

For the Court to grant you with Leave to proceed out of time for a Property Settlement or claim for Spousal Maintenance, you need to satisfy the following:

  • Hardship would be caused to you or a child of the relationship if leave is not granted.
  • You have a real probability of being successful in your property settlement claim.
  • Concerning claims for maintenance, at the end of the period before the time limit expired, your circumstances would have made you unable to support yourself without an income-tested pension, allowance or benefit.

When making decisions regarding granting leave to proceed out of time, the Judge will also examine these factors:

  • Length of the delay outside the limitation period
  • Reasons for the delay
  • Strength of the merits of your case
  • History of the proceedings
  • Conduct of the parties
  • Any likely prejudice and consequences to be caused to the other party or third parties if leave were to now be granted
  • Degree of hardship likely to be suffered if leave is not granted
  • Weighing up the court proceedings being allowed to proceed against the capacity of the parties to proceed with their post-separation lives free of prospective litigation

The Judge will, then, greatly consider whether granting leave will do justice or not between you and the other party. As such, it’s important to note that the onus of proof or the obligation to prove the case lies on you – the applicant party seeking to proceed out of time.

To learn more, here are examples of related legal cases.

Case 1

In Hertwig & Hertwig [2018], leave was sought by the husband to commence property settlement proceedings around four months after the limitation period. The husband had attempted to begin proceedings about two days before the limitation date expired, but encountered difficulties when filing the documents.

The husband cited it was because the wife had diverted a property (a significant asset) to a Trust entity controlled by her parents, whereas before separation, the property had been financially supporting both of them and their children.

What was the judge’s decision?

The Judge considered that if leave was not granted, the husband would lose the opportunity to seek orders in relation to the property.

Recognising the various contributions the husband made during their relationship, the Judge came to the conclusion that the wife had taken the benefit of a significant asset which financially supported both parties and their children before separation – especially because this property was the only asset in the couples’ property pool.

In this case, the parties were still to resolve parenting matters. However, the Judge granted leave for the husband to institute proceedings for a claim for property settlement.

Case 2

In Edmunds & Edmunds [2017], neither party commenced proceedings within the limitation period. The wife, then, sought leave to proceed with a property settlement application 6 years and 9 months after the time limit had expired.

The parties were married for 17 years and had 3 children, with the youngest being 17 at the time the application was made by the wife. When the parties commenced living together, the husband had an interest in 2 properties with his first wife and the wife had little assets of value. During the relationship, the wife’s parents gifted the parties $25,000 which was used towards the purchase of a property that was renovated and later sold. When the parties separated, they owned 2 properties in joint names and had superannuation. The total net value of the asset pool was around $552,000.

By the time the wife’s application for leave was before the Court, the husband’s asset position had become significantly greater than it was at the time of separation. The wife contended there was an informal agreement as to property settlement, but the husband denied this and said there was nothing formally documented.

What is the judge’s decision?

In this case, the Judge considered the following factors:

  • the financial and non-financial contributions of the parties
  • all of the evidence given by the parties
  • the likely percentage division if a Court was to determine a property settlement claim, in comparison to the value of the assets already retained in each party’s name
  • the likely costs to be incurred by each party if leave was granted and property settlement proceedings pursued
  • the significant prejudice to the husband in responding to the wife’s claim for property settlement, including the passage of time on the availability of documents and witnesses and his recollection of relevant matters from 25 years prior
  • the length of the delay, as the limitation period had expired 6 times over
  • the wife’s failure to take any action despite being aware of the time limit and her inadequate explanation for the delay
  • the wife’s actions after separation not raising a reasonable expectation she would later make a claim for property settlement

Taking all of these into account, the Judge refused to grant leave for the wife to proceed with a claim for property settlement on the basis that hardship had not been proved.

Consequently, the parties were left to reach an agreement or seek orders through State-based laws for the properties to be sold – meaning the proceeds would be divided equally as the properties were held in joint names.

If in doubt, always seek legal advice about your property settlement and spousal maintenance rights and entitlements.

Contact a lawyer from our panel of trusted partners to get the advice you need.

Parenting arrangements should always prioritise the best interests of your children. However, this can sometimes seem easier said than done, especially when your children are still quite young and going through a lot of developmental changes over the next few years.

In fact, social science studies show that children who are in the 0 to 5-year old age bracket need stability, routine and consistency to thrive and meet all their developmental milestones.

This is the reason why separation from either parent can be a difficult adjustment for children, especially around these ages. Due to their young age, they may end up just staying with only one parent or spending alternate time with you and your former partner or spouse.

Because of this, it’s necessary to understand the impact of the new family dynamic to your children’s emotional and psychological health. This way, you can build the right parenting arrangements to suit younger children.

What are the right parenting arrangements for overnight stays?

Family law does not state a specific age when your child should commence staying overnight with a particular parent. You may have decided, for stability, that your child remains with you while they’re very young.

So, how do you know if your child is ready to spend time and bond with your former partner or spouse?

Most likely, it will be dependent on your child’s coping ability to be separated from you (assuming you’re the primary parent) and their common environment.

To help determine whether it’s fine for your child to spend overnight time away from you, here are some questions to ask yourself:

Is my child breastfed?

Generally, if a child is still breastfeeding, it’s safe to assume he or she is likely too young to spend overnights away from their mother. Nevertheless, arrangements can be made to make this possible, such as the mother expressing and storing breastmilk to bottle feed the child during the time they are away from each other.

In all cases, consider what’s best for your child and make parenting arrangements that will allow him or her to spend meaningful time with the non-primary parent, while still allowing them to be breastfed.

How much time does my child spend away from me (their primary parent)?

If your child is spending 5 days a week in day-care or in the care of a person that is not biologically related to them, then it is likely he or she is used to spending time away from you (considering that you are the primary parent).

It means, your child should be able to transition to overnight stays with their other parent without too much difficulty.

What is my child’s routine when they are with their other parent?

To give your child the best chance of coping well with overnight time, both you and the other parent should be willing to maintain consistency and routine between households.

Communication is key here. While it’s not easy for separated parents to agree on issues such as nap times and a feeding schedule, it is still achievable through the help of methods such as email and texts or other communication apps that are available for separated parents.

Am I available to care for my child during their overnight stay?

The Family Law Courts like to see that the parents are caring for the child overnight.

It is because newborns and toddlers require 24-hour care. This is not to say that you cannot leave your child with a trusted friend or relative, but you have to remember that there is no substitute for the care of the biological parent.

What are the best parenting arrangements for the 0 to 4-year age group, then?

Newborns and toddlers should spend short and regular time with the other parent. The reason for this is that having bonding moments and gaining familiarity with the other parent will help your child not to get stressed when he or she is away from you as the primary parent.

Here’s an example of a parenting arrangement appropriate for a young child.

The child lives with one parent and spends time with the other parent each Monday, Wednesday, and Saturday from 9am to 11am.

Around 3 to 4 years of age, children start to become more resilient and aware of their primary attachments. Obviously, the times and days provided in the example above can be adjusted as the child continues to grow and their needs begin to evolve.

For instance, if we build on the previous example, a suitable parenting arrangement schedule for the child to spend time with the other parent (not the parent they primarily live with) may look like this:

Upon the child turning 1 year old:

(a)  Each week on Monday and Wednesday from 9am to 1pm; and

(b)  Each weekend on Saturday from 9am to 5pm.

Upon the child turning 18 months old:

(a)  Each week on Monday and Wednesday from 9am to 5pm; and

(b)  Each weekend on Saturday from 9am to 5pm.

Upon the child turning 2 ½  years old:

(a)  Each week on Monday from 9am to 5pm; and

(b)  Each alternate weekend on Saturday and Sunday from 9am to 5pm each day.

Upon the child turning 3 years old:

(a)  Each week on Monday and Wednesday from after day-care or 3pm to 6pm; and

(b)  Each alternate weekend from 5pm Friday to 5pm Saturday.

Upon the child turning 4 years old:

(a)  Each week from after day-care or 3pm Monday to 9am Tuesday; and

(b)  Each alternate weekend from 5pm Friday to 5pm Sunday..

Upon the child commencing Kindergarten or Prep:

(a)  Each alternate weekend from after-school Friday to before-school Monday; and

(b)  Each alternate week from after-school Wednesday to before-school Thursday.

As you see, this schedule allows for the gradual progression of time appropriate  with a child’s age and stage of development.

However, this is a general guide only.  Every family is unique and has different factors that are relevant and ought be taken into account. You need to consider what arrangement would be most appropriate and in the best interests of your child based on your individual circumstances.  In your specific case, you may modify the days and times for each stage to suit your child’s needs and routine and both parents’ individual schedules.

Your separation or divorce with your child’s other parent can be traumatic for him or her, especially during their development stage. To reduce this, it’s important for you and your former partner to come up with the appropriate parenting arrangements that will accommodate your child’s welfare. By working together, you can tailor a set-up that will make it easy for your child to adjust and cope with spending time with both parents separately.

If in doubt, seek legal advice about your parenting arrangements.

Refer to the panel of lawyers on our website who are our trusted partners and can give you the advice you need.

If you’re involved in a separation or divorce, the couple often pools their assets to be divided between the both of you.

While assets like a car or a house are simpler, your Superannuation may not be as obvious to determine or calculate. That’s because your Superannuation is an accumulated fund as a part of your salary and wage earnings over time to provide an income stream when you retire. It’s generally inaccessible until you reach 65 years of age.

So, is superannuation classed as an asset in a separation?

In nearly all circumstances, your superannuation is considered an asset which forms part of the property pool and can be divided between the separating parties.

When you separate and you begin to calculate your total assets, you have an obligation to disclose all of your superannuation funds.

How to obtain my superannuation balance

You can obtain the details and valuation information about your superannuation, or your spouse/partner’s superannuation by completing a Form 6 Superannuation Information Request and writing to the superannuation fund.

They will supply the information and amounts you need for your separation.

In some cases, the superannuation fund may not be able to provide you with a value of the fund but will instead provide the information you need to have the fund valued for the separation asset pool.

For example, many defined benefit funds such as those held with the Defence Force, Military Super or Commonwealth Superannuation Scheme (CSS) do not provide you with a valuation. However, the information they do provide will allow you to have the superannuation valued by a specialist Superannuation Valuer – this is a separate service.

However, in most cases, simply submit the Form 6 Superannuation Information Request form above.

When is superannuation not considered an asset?

There are some limited circumstances when your superannuation may be considered a financial resource, not an asset. However, in most circumstances, your superannuation interest will be considered an asset.

How do you determine what your superannuation should be?

If you are unsure if your superannuation interest should be considered an asset or a financial resource for your separation, you should seek legal advice.

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