What considerations does the court take into account when making an order for a family provision?
When making a determination for an order for a family provision, the courts will look into the totality of the relationship between the person making the application and the deceased, in order to establish what amounts to a proper provision, and whether a proper provision has been made according to the law.
One important thing to note, is that case law has stated that the mere existence of a particular relationship, or evidence of a close and loving relationship, does not amount to enough of a justification for the courts to award a provision, as Windeyer J found in Blore v Lang (1960) 104 CLR 124; [1960] HCA 73 at 137:
“The jurisdiction under the Testator’s Family Maintenance Act is to provide for deserving persons according to their requirements, not to reward past services. This is sometimes overlooked and evidence concerning the present and probably future requirements of the applicant is subordinated to or submerged in evidence of past services to the testator. Allegations and denials concerning episodes in the past are then likely to become emphasised at the expense of evidence directed to the central issues in the case.”
Can there be a legal way in which one parent can still take a child overseas, despite objections from the other parent?
A parent who wishes to take their child overseas, can file an Application in a Case with an affidavit, if they are unable to gain the permission of the other parent if proceedings are already on foot. In instances where there is no case running, then a parent can file an Initiating Application in the Federal Magistrates Court, in which an affidavit must also be affixed.
When one parent is seeking a draft order to take a child overseas, they may do so if the orders specify the country of destination, and a date of return. Further conditions which relate to communication with the parent in Australia, or any other pertinent requirements may also be attached to the order as well. Additionally, the parent travelling overseas may be also required to lodge a bond in a neutral trust fund, as a guarantee that they will return to Australia with the child.
Can parties to a marriage of less than two years in duration apply for divorce?
In instances where parties to a marriage have been together for less than two years, they must meet the mandatory counselling requirement, and a counselling certificate is to be accompanied with the application for divorce. Only after fulfilling the necessary obligations under the Act, will the court then grant a divorce.
The reason behind the compulsory requirement to seek counselling via an approved counsellor under s 44(1B) of the Act, is to ensure that the couple have considered reconciliation before taking divorce proceedings further.
Although, if the court is satisfied that there were “special circumstances” in regards to the divorce application, then the counselling and the attempt at reconciliation requirements, may be put aside as outlined in s 44(1C) of the Family Law Act.
What is the effect of the presumption of equal shared parental responsibility?
The effect of an order made by the courts, will impose obligations on the parents (or any other party who shares parental responsibilities under the court order), mandating that the parties must consult with one another, and make a genuine effort in their attempts when making decisions relating to any major, long-term issues that involve their child.
Under the Family Law Act, major long term issues relates to the care, welfare and development of the child of a long-term nature, and can include – but is not limited to – issues that involve the child’s:
• education
• religious and cultural upbringing
• health
• the child’s name
• changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
If a parent fails to consult the other in regards to a major, long-term issue, they may find themselves to be in breach of the court order, and may lead to contravention proceedings, if no genuine effort was made to either consult, or attempt to reach a joint decision regarding major, long-term issues regarding their child.
The Family Assistance Office is claiming that they overpaid my benefits and i now owe them money. What do i do?
My husband and I are separated with children under 18. I was not working when we were together and we received Family Assistance payments. I have now received a letter from the Family Assistance Office claiming I was overpaid and that I now owe them a substantial amount of money. I have told my husband who has said that because the payments were in my name then the debt is my problem. Is this correct?
No. Even though the debt is in your name it would be considered a "matrimonial debt"; Financial losses incurred by parties to a marriage or by either of them in the course of a marriage, whether the loss arose from a joint or several liability, are shared except in the following circumstances:
-Where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets; or
-Where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which had reduced or minimised their value.
What are the penalties for breaching a parenting order?
Where a court has found that someone did not comply with a parenting order, there are a wide range of penalties. The court will consider all of the facts of the case, including the seriousness of the contravention. Depending on the circumstances, the Court may:
- order attendance at a post separation parenting program;
- compensate for time lost with a child as a result of the contravention;
- require the person to enter into a bond;
- order the person to pay all or some of the legal costs of the other party;
- require the person to participate in community service;
- order that a fine be paid; or
- order imprisonment.
In addition to the aforementioned penalties, the Court also has the power to make changes to the original parenting order.
How do I protect my assets if i am remarrying?
I am remarrying and I have two children from my previous marriage. I own my own home and I want to make sure that I don't lose this house in the event that the marriage doesn't work out. What can I do to protect myself and my children?
Under the Family Law Act parties considering marriage can enter into a binding financial agreement that sets out their respective entitlements on the breakdown of the marriage. To make a binding financial agreement both parties are required to seek independent legal advice and obtain a certificate from their solicitor stating that they have received this advice.
A binding financial agreement is the best way to protect yourself and your children. To ensure that the agreement is binding you need to get the best legal advice possible because Courts have the power to set aside binding financial agreements in certain circumstances.
I live in Western Australia and I want to adopt my 19-year-old step-son. Is it too late to do this since he is no longer a child?
Adult adoption is an available service in Western Australia so long as the prospective adoptive parents were step-parents to the prospective adoptee prior to the prospective adoptee turning 18 years of age.
Section 69 of the Adoption Act 1994 (WA) provides that the Family Court of Western Australia may make an adoption order in relation to a person who is 18 or more years of age if it is satisfied that:
- the prospective adoptee and prospective adoptive parents received counselling specified by the legislation and consent to the proposed adoption;
- the welfare and interest of the prospective adoptee will be promoted by the proposed adoption; and
- written notice of the intention to file the application is given to each of the prospective adoptee’s birth parents.
Affidavits will also need to be included with the application, which provide evidence that:
- the prospective adoptee is resident in Western Australia;
- the prospective adoptive parents were carers or step-parents of the prospective adoptee prior to the prospective adoptee attaining 18 years of age;
- notice has been given to the birth parents at least 30 days prior to the filing of the application, or a prior order has been made to dispense with this notice; and
- the welfare and interest of the adoptee would be promoted by the adoption.
If you are considering adoption, it is strongly recommended you seek legal advice from a family law expert who will be able to explain the legislation and guide you through the adoption process.
Do parties have to disclose all of their assets?
Each party is under a legal duty to disclose all information and documents which are relevant to the issues in the case. This is called a duty of disclosure.
The disclosure requirements in financial cases where the parties are disputing property distribution or maintenance are detailed and complex. A lawyer can help you understand your legal rights and responsibilities, including how the law applies to your case. In financial cases, parties are obliged to make full and frank disclosure about their financial circumstances. In general terms, these rules require detailed disclosure about all income, property interests, financial resources, trusts and liabilities. Parties must also identify property disposed of in the 12 months prior to separation of the parties, or since the final separation of the parties.
If a person fails to disclose all information, there may be serious consequences. Among other things, the court may stay or dismiss all or part of your case or order costs against you. Where a finding of contempt of court has been made, in some circumstances a person may be fined or imprisoned.
My husband and I are separated and he has moved out of our house and into a rental property. He is currently paying the mortgage on the house but has told me that he wants to buy his own house and won't be able to continue to make the mortgage payments when he does. The mortgage is in both our names but I can't afford to pay it on my wage. What can I do?
As the mortgage over the marital home is in both of your names you both have a legal obligation for payment of the mortgage. Generally, the party who remains in the marital home will pay the mortgage and they will be reimbursed for these payments when a property settlement is reached.
As you are unable to pay the mortgage on your wage and your husband has indicated that he will soon not be able to pay the mortgage it would be worthwhile to attend a mediation at a family dispute resolution service to attempt to resolve the issue. It may be possible to reach an agreement that your husband continue to make the mortgage payments while the marital home is placed on the market and that you can continue to live there until it is sold.
If no agreement is able to be reached than you should seek expert legal advice on your rights and responsibilities under the family law legislation.
Is it possible to set aside a Pre-Nuptial Agreement that was made in accordance with the binding financial agreement requirements under the Family Law Act?
It is possible to apply to the Court to set aside a binding financial agreement in limited circumstances when the Court is satisfied that:
- The agreement was obtained by fraud including non-disclosure of a material matter;
- A party to the agreement entered into the agreement for the purposes of defrauding creditors or with reckless disregard of the interests of creditors, or defrauding or defeating with reckless disregard of the interests of another party who was in a de facto relationship with one of the spouses;
- The agreement is void, voidable or unenforceable;
- Circumstances have arisen since the agreement was made that makes it impracticable for the agreement to be carried out;
- Since the making of the agreement a material change in circumstance has occurred relating to the care, welfare or development of a child of the marriage and a party to the agreement will suffer hardship if the agreement is not set aside.
- In respect of the making of financial agreement a party to the agreement engaged in conduct that was, in all the circumstances, unconscionable; or
- A payment flag is in operation regarding a superannuation interest.
What is a financial agreement?
Married or de facto couples may make financial agreements about their property. These agreements are legally binding. They can be made before, during or at the end of a relationship. Agreements made before a marriage are sometimes called "pre-nuptial agreements". Agreements made at the end of a relationship often address the division of assets and spousal maintenance.
In order for your financial agreement to be legally binding, certain conditions must be met. Both parties must sign the agreement. Each party must also get independent legal advice regarding how the agreement will affect their rights and whether or not the agreement is to their advantage. The lawyer for each party must provide a signed document saying that independent advice was given.
It is important to understand your rights and the effect of the agreement. Financial agreements can only be changed or cancelled in limited circumstances.
Can I use an injunction to stop my ex-partner taking the children out of the state
If you have reason to believe this will occur you should send a copy of the injunction order to the Federal Police and ask that your child's name be placed on the Airport watch list. Although the Federal Police may not be able to prevent a child going interstate, they can prevent a child on the watch list going overseas and leaving Australia. If you have made an application to the Court but orders have not yet been made you can still send your application and the Federal Police may be able to notify you if they see the children at the airport.
If I have separated from my de facto partner (including same-sex partner), can the Family Court of Western Australia make decisions about our property issues and children?
Yes, the Family Court of Western Australia can make decisions about your children if you have separated. Regarding property, since 1 December 2002, the Family Court of Western Australia can (in certain circumstances) make decisions about property and partner maintenance for de facto couples, including same-sex couples. Where your relationship ended before 1 December 2002, the Family Court of WA cannot make a decision about your property settlement. Please seek legal advice if you think this applies to you, as the law in this area is complicated.
My son's school refuses to register him with my name but his father is estranged from us. What can we do? I don't want to get a new passport for him.
A change of surname require either the father's approval, or court permission, and in your circumstances a court is very likely to give that permission. Because of your son’s age, and the absence of any relationship with his father, a court is likely to see the formal adoption of the surname which has been in use for some time, and which he will recognise, as being in his interest.
The issue of an Australian passport for a child requires parental consent. However, if that consent is not available, as in your case, or is refused, the court does have the power to permit a child to leave Australia.
You will have to seek the Court's approval for both steps you wish to take, but do not expect major problems.
