Family Law issues

Divorce, Property and Parenting

What Do They Involve?

In Australia, the Family Law Act 1975 is the main source of family law legislation. As per the legislation, family law cases can generally be divided into three parts that involve:

Divorce and separation-related matters,
Financial and property-related matters, and
Parental matters

The law attempts to assist in resolving civil disputes between married and de-facto couples who are moving towards or have reached the end of their relationship. Most disputes revolve around the custody of the child and division of property.

What is the Law Regarding Divorce and Separation?

Generally speaking, a married and de-facto couple can apply for divorce after a twelve-month separation period. To ensure that a person isn't being forced into staying in a relationship, any one of the partners can apply for a divorce.

In Australia, a no-fault divorce category was created to reduce conflict in concluding divorce and separation cases. Here, the court does not look for a ‘fault’ that lead to the breakdown of the relationship. Instead, it focuses on the irretrievability of such a breakdown. This is demonstrated by the twelve-month separation period demonstrated prior to the divorce application.

Jurisdiction To (can be replaced with – “Who Can”) Commence Divorce Proceedings

To file an application for divorce, Section 39(3) of the Family Law Act 1975 (Cth), the applicant or respondent must be:

An Australian citizen, by either birth, descent or by grant of citizenship;
Ordinarily domiciled in Australia; or
Ordinarily resident in Australia and has been so resident for one year immediately preceding that date.
Since 2003, all applications for divorce (except in Western Australia) are filed under the Federal Circuit Court. A person who has a valid marriage in another country can obtain an Australian divorce by supplying the court with a certified copy of their marriage certificate. A person can also apply for a decree of nullity instead of a divorce order by alleging that the marrier between the parties was invalid.

Grounds For Divorce

Fault need not be proved by an applicant to be entitled to a divorce in Australia. It can be granted once the applicant proves that the marriage broke down irretrievably and that the parties have been separated for a period of 12 months with no reasonable likelihood of resuming cohabitation. When the parties involved have children under the age of 18 years, the court needs to be satisfied that proper arrangements have been made for their welfare.

In situations where parties have been separated but continue to live under the same roof, the court requires evidence by way of affidavit. Here, such parties need to provide evidence of change in domestic arrangements since separation.

Although rarely applied, the two main grounds for opposing an application for divorce are:

No 12 months separation as alleged in the application; or
The court does not have jurisdiction.

Filing A Divorce Application

A party to apply for a divorce either by filing hard copy documents or by electronically filing their application via the Commonwealth Courts Portal. It should be noted that whilst most applications can be done electronically, same sex applications cannot and must be done in hard copy. An application for divorce must include the following documents:

a completed Application for Divorce (online application form on the Portal);
a copy of the Marriage Certificate;
the filing fee or an application for a reduced filing fee; and
any additional documents which may be required in certain circumstances.

What is the Law Regarding Property Distribution?

Dividing property in a marital or de-facto relationship dispute tends to get complicated. The major considerations while dividing such property include evaluating:

The value of the property owned by each party
The direct and indirect contributions made by each party
The income of each party, including superannuation
The debt owed by either party
The expenditure on the welfare of dependants

Property Settlement Approach

Section 79 of the Family Law Act 1975 (Cth) allows the Family Law Courts to make orders that alter alters the property or financial interests of parties where it is just and equitable to do so. Proceedings initiated to receive such orders are often called property settlement matters. As per this section, the court has the power to:

Make a declaration as to the title or rights a party has in respect of a property;
Make orders as to the sale or partition and interim or permanent orders as to possession;
Alter the interest of parties in a property;
Make orders affecting the interests of third parties; and
Alter the interest of a bankrupt in the vested bankruptcy property

Court Procedure Concerning Family Proceedings

Over 80% of all family law matters commence before the Federal Circuit Court. Whereas in Western Australia, all applications are made to the Family Court of Western Australia (WA).

Commencing Proceedings

It is mandatory for parties to participate in pre-action alternative dispute resolution in most parenting and financial matters. Reaching an agreeable consent order or written agreement through an alternative dispute resolution process is less lengthy, expensive and predictable than commencing proceedings under a court.

If agreements cannot be reached then proceedings should be commenced at any time after separation, but within 12 months of the date of divorce and within 2 years of the end of a de-facto relationship.

Subpoenas

Subpoenas form a part of case management after the commencement of proceedings. They are issued either to ensure the attendance at court of a witness, to seek the production of documents or both. The Family Court, the Federal Circuit Court and Family Court of WA have different rules in respect of the issue of subpoenas and care must be taken to comply with the relevant rules.

Appointing An Expert Witness

Expert evidence is often required in proceedings in which property and financial orders are sought. In some circumstances, parties will engage their own experts but more commonly a “single expert” will be appointed by the court to provide a report on the issue requiring determination.

Particular rules apply to the appointment of experts, communication with those experts, the form of reports to be provided by those experts and meeting the costs of those experts. The Family Court, the Federal Circuit Court and Family Court of WA have different rules in respect of expert reports and care must be taken to comply with the relevant rules.

Third Parties

Parties who are not parties to the marriage or de-facto relationship may either be joined by a party or may intervene in their own right in property settlement cases where they have an interest in the outcome of the proceedings. Typically, a creditor or trustee in bankruptcy will be joined in an effort to secure repayment of debts to creditors. The court may make orders in their favour or equally, may restrain them from acting against a party.

Superannuation

Superannuation has become a significant element in any property settlement adjustment under Section 79, Family Law Act between separating de facto or married parties and is required to be disclosed during discovery.

Interaction Between Bankruptcy And Family Law

Under Section 35 of the Bankruptcy Act 1966 (Cth) the Family Court is given specific jurisdiction in bankruptcy where the trustee is a party to property settlement or spousal maintenance proceedings. Both the Family Law Act and Bankruptcy Aact refer to a bankrupt as being a person:

Against whose estate a sequestration order has been made; or
Who has become a bankrupt because of a debtor’s petition.

Once a person has been declared a bankrupt, they are required to advise their spouse (married or de facto) and the court within 7 days of their change in status. Once declared bankrupt, their property vests in the appointed trustee in bankruptcy and the bankrupt is no longer able to make separate submissions to the court except in relation to their superannuation assets which are exempted from the vesting.

Usually, a bankruptcy lasts for 3 years and the bankrupt is limited as to how he/she may use any income earned or property that may be obtained during that period.

What is the Law Regarding Parenting?

Child custody and care is one of the most important elements of a dispute resulting from a breakdown of a relationship. It not only requires sensitivity but also a reshuffling of the court's priority to ensure that the children involved are safe and secure. While most parents reach an informal parenting agreement in the best interest of the child, without the intervention of judicial authority- some parents prefer the security of a formal court order. A court order can be reached by agreement of both parties employing a consent order or can be decided by the judge after evaluating the arguments presented by each side.

Parenting Order Principles And Considerations

Parenting orders are made in the best interest of the child and give instructions relating to:

The person with whom the child is to live;
The time a child is to spend with another person;
The allocation of parental responsibility;
The form of communication between persons sharing parental responsibility;
The maintenance of a child;

While giving such orders, the court reflects on the following considerations, keeping the best interest of the child in mind:

How time with the child should be divided between the parties;
How changeover is to be affected;
How special days such as birthdays and public holidays should be divided;
How school holidays should be divided; and
Whether any specific issues (such as schooling or the child’s religion) need to be included in orders.

Dispute Resolution And Settlement

Recording A Settlement

Parties often reach an agreement or “settle” their parenting and financial arrangements before a matter proceeds to the final hearing stage at the Court. Parties need to have a written record reflects the terms of their agreement.

In parenting matters, parents often work together informally and negotiate parenting plans agreements amongst themselves or by using the services of a family dispute resolution practitioner. Such parenting plans are not enforceable, and should a dispute arise later, the plan may itself be admissible in court proceedings. Where parties are seeking an enforceable agreement, the terms agreed to in the dispute resolution process will be recorded as consent orders that are filed in the Family Court. Consent orders may be filed both in respect of parenting and property matters, either on a final or an interim basis.

Consent orders are most often used in relation to property settlements as an alternative to financial agreements. Unlike private agreements, consent orders are subject to the scrutiny of the court that must be satisfied that the orders agreed to, are just and equitable.

Consent Orders

For both parenting and financial matters, parties can reach an agreement outside the court yet still wish for their agreement to be enforceable. In these circumstances, the parties will make an application to the court for orders that they have agreed. Assuming the court agrees to the proposed orders, it will make consent that will be legally binding.

Parenting Plans

For children's matters, parents often work together informally and negotiate agreements amongst themselves or through a family dispute resolution service. Any written agreement that is signed by the parties can become a parenting plan without legal assistance. Parenting plans tend to only be used if legal proceedings have not commenced as they are not enforceable.

Financial Agreements

Statutory Requirements For All Financial Agreements

Financial agreements are frequently known as binding financial agreements. Although there are many instances of courts setting aside agreements, parties signing such a private financial agreement should understand that they will be bound by the terms of their agreement.

Definitions and Recitals

Every financial agreement should include definitions of the key concepts that form the basis of the agreement and the recitals, that is, the circumstances that have led to the parties wishing to enter the agreement.

Married Parties' Agreements

The purpose of a financial agreement is to enable parties to decide how their assets are to be divided in the event of a separation of divorce without the intervention of a court. Each party to an agreement must receive independent legal advice prior to signing. That advice by a legal practitioner should refer to the effect, advantages and disadvantages of the agreement on the rights of that party at the time of making the agreement.

Before Marriage

When two people contemplate entering marriage, they may wish to set out how their property and financial resources will be divided in the event of a breakdown of that marriage. This agreement is known by many clients as a “pre-nuptial agreement”, however, that terminology isn’t used in the legal field in Australia.

During marriage and after separation

Parties who are married but wish to secure their separate financial positions should their marriage breakdown can do so by entering into an agreement pursuant to s 90C of the FLA. Parties who are separated but not divorced are also able to make an agreement under this provision in order to reduce prospects of future litigation, particularly in relation to any transfer of real property and the distribution of the assets, liabilities and financial resources of the marriage. An agreement under this section may be made before or after the marriage has broken down.

To make a valid agreement, it must be in writing in identical terms to both parties and independent legal advice be provided to each party about the effect of the agreement on the rights of that party and about its advantages and disadvantages. The legal advisor for each party must certify that legal advice has been provided to their client and a certificate to such effect provided to the other party.

After divorce

Parties who have already divorced may enter a financial agreement to adjust their property interests. Practitioners should consider whether consent orders may be appropriate in such cases. Such an agreement can include transfers of real property as well as spousal maintenance, but a separate child support agreement may also be appropriate. Parties who have been divorced and wish to reach an amicable agreement in relation to the division of their assets may also enter into an agreement pursuant to s 90D, FLA. Like other agreements, the parties are required to obtain independent legal advice as to the terms of the agreement before signing. Full financial disclosure is required as to assets owned both before and after divorce. A separation declaration is required prior to this agreement taking effect. Such an agreement has the advantage of enabling property transfers to be made between the parties without payment of stamp duty. However, such agreements will be set aside if it can be shown that they were made with the intention of defeating the interests of third parties, such as the trustee in bankruptcy

Appeals

Types of Appeal

The guidance in this subtopic dealing with appeals from courts of summary jurisdiction, the Federal Circuit Court, appeals from interlocutory decrees and orders and appeals to the Full Court of the Family Court of Australia.

The right to appeal is very limited and should not be seen as a rehearing of the original evidence. The application for an appellate hearing requires demonstrating that the primary judge made an error either in the manner that the hearing was conducted, in the finding of facts, in the exercise of their discretion, or in the application of an incorrect principle of law.

An appeal lies against final decisions made by a judge of the Family Court or Federal Circuit Court of Australia or in limited cases, against interim orders. An application for a stated case is also a form of appeal.

Appeals From The Federal Circuit Court

An appeal from the Federal Circuit Court is an appeal to the Family Court and is instituted by the lodgment of a Notice of Appeal with the appeals registry of the Family Court. The appeals registry is generally situated in the Family Court Registry in the capital city of each state of Australia and correspondence should be addressed to the Regional Appeals Registrar.

Appeals To The Full Court Of The Family Court

An appeal to the Full Court of the Family Court lies against a decision made by a single judge of the Family Court. An appeal is instituted by the lodgment of a Notice of Appeal. The Notice of Appeal must be lodged within 28 days of the date of the order appealed from. Once a Notice of Appeal has been filed, the appeals registrar in chambers will make directions as to the running of the appeal, including the preparation of appeal books and the filing of a summary of argument and list of authorities. Failure to comply with directions may have the appeal abandoned and a costs order awarded against the appellant.

FAMILY LAW RULES 2004- CHAPTER 13 - Disclosure

General duty of disclosure

Subject to subrule (3), each party to a case has a duty to the court and to each other party to give full and frank disclosure of all information relevant to the case, in a timely manner.

: Failure to comply with the duty may result in the court excluding evidence that is not disclosed or imposing a consequence, including punishment for contempt of court. This Chapter sets out a number of ways that a party is either required, or can be called upon, to discharge the party's duty of disclosure, including:
- disclosure of financial circumstances (see Division 13.1.2);
- disclosure and production of documents (see Division 13.2.1); and
- disclosure by answering specific questions in certain circumstances (see Part 13.3).
The duty of disclosure starts with the pre-action procedure for a case and continues until the case is finalised.
This rule does not apply to a respondent in an application alleging contravention or contempt.

Consequence of non-disclosure

If a party does not disclose a document as required under these Rules:

the party must not offer the document, or present evidence of its contents, at a hearing or trial without the other party's consent or the court's permission; may be guilty of contempt for not disclosing the document; and may be ordered to pay costs; and the court may stay or dismiss all or part of the party's case.

Penalties for non- full and frank disclosure

If you fail to disclose or file an undertaking or file a false undertaking, the Court may refuse to allow you to use that information or document as evidence in your case

CASLEY & CASLEY (COSTS) [2010] FamCAFC 189

The husband failed to satisfy his obligation to make full and frank disclosure of his financial circumstances including undisclosed income Motor vehicle expenses, telephone and other expenses, depreciation expenses and the income and earning capacity of the Husband were all related to the Husband’s undisclosed earnings that were required to be produced as a relevant documentary or other evidence. This has resulted in a costly and protracted court case and appeal process. Thus, the husband was wholly unsuccessful in his proceedings

STAY OR DISMISS ALL OR PART OF YOUR CASE

HACKSHAW & HACKSHAW (COSTS) [2011] FamCA 570
- The husband’s application for the wife to pay his court costs was dismissed as the husband failed to satisfy his role of full and frank disclosure in litigation. The husband was involved in admitting an altered cheque as evidence and was in an inaccurate position to the court
CASLEY & CASLEY (COSTS) [2010] FamCAFC 189
- The husband’s application for the costs order was dismissed as he failed to satisfy his obligation to make a full and frank disclosure of his financial circumstances including undisclosed income, thus, the husband was ordered to pay the wife’s court proceedings
STONE & STONE [2013] FamCA 270
- The husband failed his full and frank disclosure as he declined to submit documents that enabled the Court to speedily come to conclusions. The husband made obstructive attempts to hide information of the parties’ financial history in the marriage.
- The court held as the husband has failed to disclose, the Court is in doubt on whether there are other undisclosed assets. As a result the court held there would be an adjustment of 8% in favour of the wife. Thus, the wife’s entitlement will be increased from by 8%

CLAYDON v CLAYDON [2018] FCCA 1660; BC201805933:
Husband failed to give updated disclosure on the increased offer of the shares which would have been relevant and a requirement for the wife. Thus, the Court held the wife may seek an appeal for the decision

ORDER COSTS AGAINST YOU

CASLEY & CASLEY (COSTS) [2010] FamCAFC 189
- ss 6 and 8 in the Federal Proceedings (Costs) Act 1981 (Cth) was applied for costs in favour of the wife, as the husband failed to satisfy his obligation to make a full and frank disclosure of his financial circumstances
LAMBERT & JACKSON AND ANOR [2011] FamCA 275
- The husband lacked in fully and frankly disclosing his submission on financial situation with his business activities. Thus, the court ordered costs orders against the husband
- Fine you or imprison you on being found guilty of contempt of court for not, or disclosing the document or for breaching your undertaking.
LAMBERT v JACKSON [2010] FAMCA 357; BC201050419
- The court held any breach of undertaking the Disclosure pursuant rule is punishable by a fine or imprisonment for the husband’s failure to disclose business activity

What is family law dispute resolution?

Dispute resolution refers to a range of services designed to help you resolve disputes arising from separation or divorce and improve your relationship with the other party/s.

Family Counselling

A family counsellor will help you and your family deal with personal and interpersonal issues relating to marriage, separation, or divorce; including issues relating to the care of child/ren (see Part II, Division 2 of the Family Law Act 1975).

Family Dispute Resolution

FDR is a process in which a family dispute resolution practitioner (FDRP), independent of the parties, helps people to resolve some or all of their disputes arising from separation or divorce (see Part II, Division 3 of the Family Law Act 1975 (Cth) (‘Family Law Act’)).

FDRPs are trained in assisting people to resolve disputes and FDRP’s external to the Court are accredited by the Commonwealth Attorney-General’s office. FDRPs cannot give legal advice or impose a decision. Persons who have a parenting dispute about matters that may be dealt with by an order under Part VII of the Family Law Act, must make a genuine effort to resolve that dispute by family dispute resolution before filing an application for a Part VII order to the Court (see s. 60I(9) for exceptions to this requirement).

Conciliation

A conciliator, who is independent and impartial, will help you and the other party/s resolve financial issues arising from separation or divorce. Conciliation Conferences within the Court are conducted by a Registrar in financial matters. At the conference, the Registrar will look at the case from both sides and help you explore options for settling your case without any further legal action. A Registrar cannot give legal advice, however they can talk with you about the legal principles that are applied when deciding cases. Agreements reached at a Conciliation Conference can be formalised by the Registrar and made into binding Court Orders.

Mediation

Mediation is a process where the parties involved in a dispute are assisted by an independent third party to help resolve their dispute. Parties may agree to attend mediation with a mediator who can help them resolve financial and/or parenting issues. Mediation can take place before or after court proceedings are commenced. Agreements about the care of children which are reached at mediation can be formalised by way of Parenting Plans and steps can also be taken for mediated agreements to be made binding by the Court.

What are the benefits of dispute resolution?

Dispute resolution provides you with an opportunity to improve your relationship with the other party/ies and reach an agreement without the need for litigation. This allows you to make your own decision and retain control of the outcome. Because all parties are involved in reaching a resolution, it improves the chances that the agreement will last into the future and can cover all of the issues important to you. You may also learn more effective ways to communicate with the other party/ies which may assist you to resolve future disputes.

Dispute resolution is a more affordable, timely, and less stressful means of resolving disputes.