|
|
|
|
|
|
|
Family Law: Frequently Asked Questions Copyright NSW Legal Aid Commission 1999. The information below provides basic information about family law in Australia only. It is not a substitute for legal advice. If you are likely to be involved in court proceedings or legal action, you should obtain advice from a lawyer. This information has recently been translated into four community languages. It is now available in Arabic, (118 KB) Chinese, (2 MB) Spanish (73 KB) and Vietnamese (104 KB) in Portable Document Format (PDF). Click here to read about using PDF to view and print documents. We also have Arabic, Chinese, Vietnamese and Spanish versions available in Unicode format. Click here to read about using Unicode to view documents from your browser.
Indroduction Family law is the area of law that deals with particular family matters like divorce, your children and your property. The whole area of family law in Australia is covered by the Family Law Act. Even if you are not married, the Family Law Act still covers any disagreements you have in relation to your children, like for example where they will live. There are three courts that deal with family law matters: the Family Court, the Federal Magistrates Court and the Local Court. The Family Court resolves disputes arising from family breakdown through mediation services or court hearings. Visit the Family Court website for more information: www. familycourt.gov.au The Federal Magistrates Court deals with less complex family law and child support matters. The Commonwealth Government set up the Federal Magistrates Court in July 2000 as an alternative to the Family Court. For more information about the Federal Magistrates Court call 1300 367 110. You can also obtain more information about their services and locations from the website: www.fms.gov.au The Local Court also deals with some family law matters. In many cases you can file your matter at the Local Court and it will be transferred to the Family Court or the Federal Magistrates Court. Visit the Local Courts website at: www.lawlink.nsw.gov.au/lc.nsf/pages/index Instead of referring to all of these courts throughout the booklet we will only refer to the Family Court. You should talk to a lawyer to work out whether it is best for you to lodge your application in the Local Court, Federal Magistrates Court or the Family Court. LawAccess NSW (a legal information, referral and advice service) can also assist you. Call 1300 888 529 9am to 5pm Monday–Friday.We have just separated. Do I need to get orders made about the arrangements for the children (e.g. saying with whom they will live)? Informal Agreements: You don't have to get formal orders made about the arrangements for the children. This is only necessary if you and the other parent can't agree. Many separated parents have informal agreements in place about parenting of their children. Court orders are not involved in this arrangement. Agreement is usually reached through personal negotiation between the parents with or without the help of mediation or counselling services. (See further help at the end of this material). Neither parent can make the other adhere to an informal agreement. Formal Agreements: Some parents prefer to make formal agreements through a court, either the Family Court or Local Court. There are two ways of doing this: Consent Orders: After negotiating with the other parent and the help of a lawyer and/or mediator, you can file an agreement called Consent Orders with the Family Court. It sets out the arrangements for the care of the children and is binding for both parties. Parenting Plans: With the help from a lawyer you can both make and register a Parenting Plan with the Family Court. A Parenting Plan sets out all the parenting arrangements for the children and is binding on both parties. Both Parenting Plan and Consent Order kits are available from the Family Court. Unable to Agree? If you cannot agree on arrangements for the children, you can apply to the Family Court to make a decision. The Court will decide on the basis of what is in the best interests of the children. This is called a Parenting Order and sets out the arrangements for the care of the children. Do grandparents have a right to see their grandchildren? Grandparents (or anyone who wants an ongoing relationship with a child) can apply for a contact order. Children have a right of contact with both parents and other significant people in their lives unless it is contrary to their best interests. Grandparents must therefore establish that an order for contact will best serve the welfare of the child/children. The other parent has taken the children and is refusing to return them. What should I do? If you have a court order which says you are the resident parent (i.e. the children live with you), you need to apply to the Family Court or Local Court for a recovery order. This order allows the police (both state and federal) to find and return your children to you. If you do not have a residence order then you need to apply to the Family Court for this as well as an order for daily care of the children and a recovery order. Sometimes in an emergency the court may give these orders ex parte, that is without the other parent being at court. If you are worried that the children might be taken out of Australia you should put the children's names on the Airport Watch List. You do this through the Federal Police. Note: You can only place children on the List once Family Court proceedings have started or an order about the children has been made. Can a child make their own decision about where they want to live? There is no particular age when the Family Court will listen only to what a child wants to do. The Court must look at a child's wishes, but the importance placed on those wishes will depend on the child's maturity and level of understanding. Other factors the Court will look at to decide where children will live include: Above all else, the paramount consideration will always be what is in the best interests of the child. The children have been living with me since separation and I want to move out of the local area. Can I just go with the children or do I need the other parent's permission? The Family Law Act states that children have a right to know and to be cared for by both parents. However when a parent needs to move away and that move will effect the child's ability to see the other parent on a regular basis, a number of factors need to be considered. When there is a court order about contact: You will need to look at the order to see whether the move will breach the order. For example, if the order says your children have contact with the other parent each alternate weekend and you plan to move from Sydney to Perth, you would probably be in breach if you moved. You would then need to have the orders varied either with the other parent's consent or by the family court before you move. When there is no court order about contact: You will not be breaching any orders by moving. However, if there is an informal agreement for your children to have contact with the other parent, then the other parent can ask the Family Court for an order which stops you from leaving the area with the children. The Court will consider such things as: why you are moving (is there a good reason?), the current relationship the children have with the other parent (how often does the other parent see the children?) and how the new location compares with the current environment. Above all, the Court will look at what is in the best interests of the child. The Court must carefully evaluate each parent's proposed arrangements for the children's future residence and contact. It will also consider such things as: If you take the children out of Australia without permission and there are court proceedings or orders, you could be committing a criminal offence. Australia has an agreement with many countries (the Hague Convention) which requires these countries to send the children back. I want to end my relationship but my spouse won't move out of the house. What can I do? Both you and your spouse are entitled to live in your home after separation regardless of whose name is on the title of the property. Your spouse cannot force you to leave just because the property is not in your name, unless a court orders it. If you have to move out, it will not affect your rights in the property. Any rights you have built up during the relationship will remain even if you leave. If you fear violence you should seek advice immediately (see contact points). The Family Court can make an exclusive occupancy order of the house for either spouse. That means you can live in the house, without your spouse living there until the property has been divided. When the Court considers an application for exclusive occupancy it looks at the needs of both parties and the children. These orders are very hard to obtain. Usually such an order is made only in situations where there is violence and threats being made by one spouse against the other, or the house has been adjusted because of disability. I have a contact order to see the children but my ex partner won't let me see them. What can I do? If the other parent is in breach of an order affecting your children, you can either: OR The Court takes breaches of its orders very seriously. Depending on the circumstances, the non-complying parent can be referred to a parenting program, fined, made to provide compensatory (or "catch up" contact) or face gaol. When a breach occurs, the non-complying parent must show a reasonable excuse. For example, a very sick child (supported by proper medical evidence) is generally considered a legitimate reason for a parent breaching an order. If the orders breached are no longer workable, the Court may order that both parents attend a parenting program, or adjourn the case to consider varying the orders. The children live with my ex partner who is in a new relationship. Do I have to pay child support? The parent who doesn't live full time with the children of the relationship has an obligation to financially support their children until they are18 years of age, or become self- supporting. Whether your partner remarries or enters a new relationship will generally not reduce your liability to support the children financially. If you and your partner separated after 1 October 1989, the Child Support Agency formula will apply to you. If you separated before that date and can't come to an agreement about the level of financial support, either person can apply to the Local Court for an order. How do we settle our property? In NSW, if you lived together and were not married you may be able to ask a state court to divide your property under the Property (Relationships) Act if you are unable to reach an agreement. The Act includes same sex couples and other domestic relationships. You need to have: OR OR The State Court in making its decision will consider the contribution you have each made towards the property or other financial resources. Contributions can be financial or non-financial such as the contributions as a homemaker/parent. The Property (Relationships) Act does not allow courts to make adjustments for the future needs of the parties. This is the major difference between property in de facto relationships and property in marriage. Which court? The Local Court considers matters where the property is valued up to $40,000. The District Court hears matters for property up to $250,000. If your property is worth more than that, you will need to apply to the Supreme Court. Ideally, you should decide how your property will be divided before you get divorced. You can start negotiations about property as soon as the marriage has broken down. However if you do get divorced first you must start property or spouse maintenance proceedings within 12 months of your divorce becoming final. Property includes all things owned by either one or both partners (in joint or sole names) including: What about superannuation? In 2001, the Federal Government made major changes to the way superannuation is to be dealt with in family law matters. The new laws will come into effect no later than 28 December 2002. They do not apply to people who have never been married. These changes mean that superannuation can be treated as property and be split between married couples after they separate. How a person's superannuation entitlement will be split depends on a variety of matters, including the type of superannuation scheme to which that person belongs. You should consult a lawyer if superannuation is an issue in your matter. What will the Court look at to decide how our property should be divided? There is no formula or rule that determines how the property will be divided. The Court is not required to split the property 50/50. It will consider many things including: The extent to which this is considered the property of an individual partner will depend on the length of the marriage and what contributions the other partner made (if any) towards the accumulation and upkeep of property. This includes direct contributions (e.g. wage earnings, maintaining the property), indirect contributions (e.g. gifts, assistance from family members) and contributions made to the welfare of the family as a caregiver or homemaker. Generally, contributions to the welfare of the family would be considered equal to the contribution of the primary wage earner. It is a good idea to get a lawyer for your property settlement even if only for legal advice and help making consent orders. Otherwise, even if you have settled up in accordance with an informal agreement, there is nothing to stop the other party taking you to court to get more. If you have court orders, you will be exempt from paying stamp duty on any property transfer. How do I get a divorce? When you first separate, there is nothing that you need to do and no document you need to sign to confirm that you are separated. After you have been separated for 12 months you can file for divorce with the Family Court. You can obtain a Divorce Kit by contacting the Family Court. A divorce will only legally end your marriage. It will not decide issues in relation to the child/ren or how the property will be divided. If you get divorced before you and your ex partner have settled your property, you must start property and spouse maintenance proceedings within 12 months of getting divorced. NSW Legal Aid presents free divorce classes in a number of Sydney and regional centres. Contact LawAccess NSW on 1300 888 529 for details. I am divorced. How do I change my child's surname? To formally change a child's name, you must apply to the Births, Deaths and Marriages Registry (NSW) for registration of a name change. Children aged 12 years and over must consent to their change of name. The consent of both parents is required or if this is not possible, a court order. Either parent can apply to the court for an order seeking permission to change the name (if the other parent won't agree) or stop (restrain) a parent from registering a different name for a child. The court will make its decision based on what will be in the best interests of the child. (e.g. the court may look at the embarrassment a child may suffer because s/he has a different name from the parent s/he lives with, or the possibility of the child being confused by the name change etc). The court rarely authorizes a name change however, where both parents have a relationship with the child. A child cannot change their name on their birth certificate themselves until they are 18 years old in New South Wales. Contacts Family Court (in NSW) Albury 6021 8944 Coffs Harbour 6651 5395 Dubbo 6885 8460 Lismore 6621 8977 Newcastle 4926 1255 Parramatta 9893 5555 Sydney 9217 7111 Wollongong 4226 0200 Web Address: www.familycourt.gov.au <a name="legalhelp"> Legal Help Legal Aid Offices Family law advice is free from all our offices. Contact your nearest Legal Aid office (see the White Pages). LawAccess NSW 1300 888 529 for information, referral or advice. Community Legal Centres 9318 2355 or look in the White Pages under Legal Centres for the location of your nearest centre. Domestic Violence Advocacy Service 9637 3741 or 1800 810 784 (toll free) Law Society of NSW Community Assistance Department 9926 0300 or 1300 888 529 for information and referral to private lawyers. Legal Aid Child Support Service 9744 3833 or 1800 451 784 (toll-free country callers only) Womens’ Legal Resources Centre 1800 801 501 (toll free) or 9749 5533 Indigenous Womens Program 1800 639 784 (toll free) Mediation and Councelling Centacare 9725 7077 Community Justice Centres (mediation only) 9218 5955 or 1800 671 964 (toll free) Relationships Australia Mediation Service 9327 1222 Relationships Australia 9418 8800 Unifam 9261 4077 Other Contact Points Centrelink Free call (customer relations) 1800 050 004 Child Support Agency Free call 131 272 Federal Police 6256 7777 Births, Deaths and Marriages Registry (NSW) Sydney 9243 8555 or 1300 655 236 (local call) Newcastle 4929 5936 Wollongong 4223 3724 |
|
|
|