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It’s 8:40 AM on the first Monday morning back at work for me after the Christmas New Year break. Whilst I stare at the 2000+ emails requiring my urgent attention, I receive a phone call.

I say to the receptionist ‘can you please take a message and I’ll get back to them later’. She tells me that the caller is in tears and needs to speak with someone urgently.

I take the call. His name is Steve. He told me that he has a young daughter called Amanda and has been married for 10 years. His wife’s name is Tammy. Steve told me that he works away in the mines in Mount Isa on fly in fly out basis. He spends 2 weeks at the mines and then comes back home for a week. He said this was the only job that he could get, and it earns good income for him and his family which is the only reason he took it.

He told me that when arriving back home from his last stint in Mount Isa for the year just prior to Christmas, his wife Tammy, and daughter Amanda, were gone. So was most of the furniture from their house, all Amanda’s and Tammy’s clothes, possessions and beds were gone. Even their king-size matrimonial bed was gone.

He said that he thought he and Tammy had been growing apart and she was becoming more distant from him, however he had no idea at all that this was going to happen.

He told me he spent Christmas on his own in an empty house sleeping on a blow-up bed on the floor. He has been self-medicating with alcohol and he is so depressed that he wants to end his life and for it to be all over. He said the only thing he is living for is to be able to spend time with Amanda again.

I told Steve that ringing me this morning is the best thing that he could have possibly done. I told him that I have been practising family law for over 30 years, that there is a light at the end of the tunnel, and by taking it step-by-step he will get there. I told him that what he’s feeling now is a completely normal reaction but will be nothing but a distant memory in the future.

I arranged an appointment for Steve to come and see me that afternoon. I referred him to a good counsellor to deal with his depression issues and explained to him that in a marriage of that length with a 5-year-old daughter are you not only grow up together, you grow together and become one. You’re like a nice big ripe watermelon until someone pulls out a cane knife and slices you write down the middle. Now one half of you is gone and where it was is very raw. You need time to heal and grow a scab over that cut which takes time.

Steve said to me he does not know where Amanda or his wife would have gone to, or why she left without giving him notice or reason.

Steve was concerned because he was a fly in fly out worker and wanted to know how we can find Amanda and Tammy, what his rights are as a parent post separation with respect to his children. He said, “now that she has done this and has taken Amanda away from me, there is no prospect of reconciliation between us whatsoever”.

He then turned to the family law questions that I knew were coming. I knew they were coming because these are the most common family law questions that I am asked following the separation of two parents with young children, particularly where one parent has taken the children away from the other and/or will not let the children spend time with the other parent.

Question 1: Steve asked, “what rights do I have with respect to my daughter Amanda?”

I told Steve that under the guiding principles of the Family Law Act 1975 (“the Act”), which is the main piece of legislation dealing with family law in Australia, there is a presumption that following separation both parents will continue to have equal shared parental responsibility for any children of the relationship.

I explained to him what equal shared parental responsibility means. It means that both parents have an equal parental right or ability to play a primary role in decision-making for any major issues for the children, such as schooling and medical issues, where the children will live, what the children’s names will be, and overseas travel until the children turn 18.

I told Steve that both he and his Tammy will continue to have joint parental responsibility for his daughter Amanda unless that is altered by the court which in his circumstances is not likely at this time.

Question 2: Steve then said, “if I have equal shared parental responsibility, does that also mean I am entitled to equal time with Amanda?”

The Act says if the parents have equal parental responsibility, the child’s parents are to consider firstly whether an order that the child spend equal time with the parents. Equal parental responsibility and equal time with both parents are very different things.

I explained to Steve that with respect to equal time, that is 50-50 or one week on one week off type arrangements, the court has recognised that such an arrangement can only work in limited circumstances.

• The parents should be living close to each other and to the child’s school;
• there must be no ongoing domestic violence issues between the parents and the child (particularly at changeovers) must not be subject to domestic violence;
• there must be no risks of child abuse, alcohol or illicit substance abuse in the presence of the child,
• there must be no emotional or other physical abuse to the child;
• the parents must be able to communicate with each other regarding the child’s schooling and parenting without arguing after every second sentence;
• it must be otherwise “reasonably practicable” for equal time to work;
• most importantly (and this is a paramount consideration) the proposed equal care arrangement must be in the best interests of the child; and
• (also, a paramount consideration) the child must be protected from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence.

My advice to Steve was that in his case, if he continues to be a FIFO worker, equal time will simply not be practicable because of his work commitments. He then said to me ‘I would be prepared to leave that job move close to where Amanda is, if we can find her. Even if it’s in Timbuktu. She means that much to me.”

I said in that case, he will need to establish good communication with Tammy about parenting decisions, he should be close to Amanda’s school and Tammy’s new residence for practical reasons, and most importantly Amanda must not be subjected to or exposed to any domestic violence.

The domestic violence Steve told me about that did take place, particularly when his wife had been drinking had been exposed to Amanda. I told him that this must never happen again. There must also be good communication at changeover and no arguing or pushing each other swearing at each other or any emotional abuse.

It may turn out that his wife continues to drink and become violent, Amanda are may be safer living with Steve. I told him that the court would appoint a family report writer to prepare a family report to make recommendations to the judge as to what is in his daughter’s best interests.

I also told Steve that if Tammy and Amanda have moved out of the area to make it extremely difficult for Steve to spend any time with Amanda, we can ask the court for an order that they be relocated back to this area to maintain the status quo until the court can determine what is in the best interests of Amanda.

Question 3: What is substantial and significant time?

If equal time is not possible, then the court must consider the importance of the child having a meaningful relationship with both of the child’s parents and giving substantial and significant time to the parent with whom the child does not live. The old regime where the father would only get to spend time with his child every second weekend and half the school holidays is not considered to be substantial and significant time.

I explained to Steve that there is also an obligation on both parents to facilitate (make possible) and encourage the children to spend meaningful and significant time with the other parent. I told Steve that if it is at all possible, equal time should be considered.

Additionally, and particularly relevant in Steve’s case, is the fact that because Steve is a fly in fly out worker, a 50-50 equal shared care arrangement would not be possible because of his work commitments. Practicality needs to be considered as well.

I asked Steve if there had been any issues of domestic violence, alcohol abuse or illicit substance abuse by Tammy against him. He told me that Tammy was the heavy drinker, and after a few drinks she would become violent and occasionally would strike out and on one occasion she kicked him in the head. Steve denied that he provoked her to do this. He said she was psychopathic and out-of-control when she had drunk too much. Steve said that he is a mine worker and he drinks heavily himself, however he does not become violent like Tammy does. I asked him why he thought Tammy left, and he said that he suspects she is having an affair because he is hardly ever at home.

I told Steve that while many parents might think that think equal time is the best arrangement post separation, most of the time that does not turn out to be the case.

Equal parenting or week about arrangements can sometimes lead to extra pressure on the children, particularly once you factor in the children’s schooling and extra-curricular commitments, age, and any health issues.

Parents also need to factor in their own lifestyle, financial means and commitments which may impact on their ability to spend meaningful time with the child while in their care.

Week about arrangements, of their nature, may place too much of a burden on the child’s psychological state and ability to be apart from one parent more than the other. This is particularly the case for younger children who may still be dependent on their primary carer. Amanda falls just within this category, and I told Steve that if Amanda is safe living with her mother and she is not exposed to or neglected by excessive alcohol use and associated violence, then she will most likely remain living with mum. However, if Amanda is not safe in that environment, it may be turned out to be in Amanda’s best interests for her to live with Steve. I told Steve depending on how things go, in a year or so they made look at trying and equal shared care arrangement if the circumstances allow.

Both parents must also have the ability and capacity to properly care for the child and meet the child’s before equal time is simply assumed.

Question 4: how do I find Amanda and Tammy?

I told Steve that in these circumstances, where Tammy has left with the child she must perceive some conflict, threat or an emotional need to be away from him. Tammy will be likely even if we find her, to resist or restrict Amanda spending time with him.

Steve said he still has an email address for Tammy, although he doesn’t know if she still uses it. I said the best thing we should do immediately is to write to her in a civil and polite manner and ask her why she has left, where she has gone to, and what proposals she has for Steve to spend time with Tammy.

If there is no response to that letter (which will give a very short timeframe for a response), then we will have to issue legal proceedings for a location order and a recovery order (to force Tammy to relocate back to the area to maintain the status quo) and some interim parenting orders. We will also ask for the court to appoint a family consultant to prepare a report once Tammy and Amanda have been found.

Question 5: if we find Amanda and Tammy before issuing Court proceedings, what should we do next?

I told Steve that if we happen to find Tammy and Amanda’s whereabouts from communicating to her through her email or by other means, the first sensible step is to try to organise a mediation with Tammy. Mediation (referred to in the Act as “family dispute resolution conference”) this can be done through either government mediation services or private mediators. A mediation is required before court proceedings are issued, unless there are circumstances of extreme urgency or there is a risk of harm to the child being exposed to family violence or child abuse.

The benefit of mediation is that it provides both parties with the ability to discuss their concerns about parenting matters with an independent mediator, which may provide them with a better perspective on what is in the best interests of Amanda.

Amanda will not be included in the mediation, and I told Steve that when he starts communicating with Tammy it is very important for him and Tammy to not put Amanda in the middle of any parenting discussions where arrangements for Amanda are being discussed. This will put uncalled for emotional pressure on Amanda.

Question 6: Steve then asked me “what if mediation fails and I still cannot see Amanda?

I told Steve that if he fails to reach an agreement at mediation, the mediator will give him what’s called a section 60 I certificate authorising him to commence legal proceedings. I did say that in the circumstances of his case where Tammy took Amanda away without any notice or informed consent, and due to the domestic violence and alcohol issues, he probably falls within an exception to having to file a section 60 I certificate to get court proceedings underway. However, if there is a possibility that mediation might have worked, I always recommend trying that first.

Question 7: What are the benefits of issuing Court proceedings? Will I get Orders in place quickly?

Issuing Court proceedings in the family law courts can be an expensive and drawn out process, both financially and emotionally. Generally, at the 1^st return date, which in urgent circumstances may be as quick as in one week, but in normal circumstances is probably 2 to 3 months away we can ask for some interim parenting orders and for a family report to be prepared. The matter is then generally adjourned for 6 to 8 months to enable the family report to be prepared. The family report writer will make recommendations to the judges to what is in Amanda’s best interests. 9 times out of 10 the judge will make orders along those lines. However, if he or Tammy disputes the recommendations the matter will be set down for trial which could be another 6 to 12 months away, or longer if the proceedings are in the family Court of Australia.

I have written another article which is on our website called “What if mediation fails”. In that article I explained the court process in more detail. I suggested that Steve read that article and all the other articles of our website dealing with the family courts and parenting matters, so he can get a good grasp of how everything works.

Question 8: How can I safely communicate with Amanda’s mother about Amanda?

Steve asked me what will be the best to communicate with Tammy about Amanda in circumstances where there will most likely be hostility. Phone calls can readily get out of control, and text messages can be misinterpreted.

I suggested to Steve that he and Tammy communicate by email only in what is known as the FYO RR method as follows:

I said to Steve “, so you wish to inform Tammy that Amanda now knows how to do backstroke, that her homework for the week has been finished, or that she has found a good friend next door to your house. But you also need ask Amanda if she knows what happened at school on Thursday because when you picked Amanda up from school she had a scratch on her face. You also want to know what her test results were. You also wish to enquire about the roommate she has, and if Amanda is safe around him.”

I said “using the FYO RR method you will communicate this by email in short bullet points under 2 headings, the 1^st being FYO (for your information) and the second heading will be RR (response required). You will give her a week to respond. If Tammy is caught up with something and cannot respond within that week, Tammy will email you during that week to tell you that she needs an extension of time and will give you a time by which she can reasonably respond. If that time is reasonable you will allow it.

So, your email will look as follows:

Dear Tammy

RE AMANDA

FYO

• Amanda has learnt how to do backstroke and did it well today. She is excited about that;

• Amanda’s homework for the week has been completed;

• Amanda has made friends with the girl next door. She is one year older than Amanda and her name is Vicky. They enjoy spending time together.

RR

• do you know what happened at school on Thursday because when I picked Amanda up she had a scratch on her face. It’s not too deep but it looks like a nail scratch.

• Can you please let me know the results of Amanda’s blood tests? I would appreciate it if you could send me a copy and let me know what the doctor said.

• Amanda has informed me that you now have another person living in your house. Can you please tell me a bit about him to help satisfy me that Amanda, being only a young girl, is safe around him?

 You have one week to reply to the RR questions, which means that the deadline is 5 PM on Monday, 12 September 2019.”

Steve said he thought that was a great idea, and he would try down the track.

What was the result?

I took down all of Steve’s details and then prepared a letter to Tammy setting out a brief history of the relationship, the circumstances that Steve now finds himself in, and his proposals with respect to be able to spend time with Amanda. I won’t tell you what happened from here. I won’t tell you if we found Tammy and Amanda through that letter or if Steve had to go through the lengthy process of court proceedings. I also won’t tell you why Tammy left with Amanda, but I will tell you that she returned to rent a house near his. I also won’t tell you if she was forced to return by order of the court or if she did it voluntarily. No

I will however tell you that Steve now has a fantastic relationship with Amanda, and they get to spend a lot of fun time together. Steve takes Amanda to her swimming lessons, they go Kayaking together he assists her with her homework during the time that he has with her.

Steve and Tammy communicate very effectively about Amanda using the FYO RR method and Amanda is doing very well at school as a result.

Please contact our family lawyers Gold Coast at OMB Solicitors if you find yourself in circumstances like any of the above so that we can assist you to find yourself enjoying a happy relationship and spending meaningful time with your child, like Steve and Amanda now enjoy.

Please note that the names and circumstances in this article are completely fictitious, and every individual’s circumstances will differ. However, I have over my career found myself acting for people in very similar circumstances to Steve and in all cases a good outcome was achieved in the end for the child and her father.

The Effect of Marriage on your Will

Marriage is a time of joy and commitment. However, by saying the words “I do”, you are also inadvertently saying the words “I do hereby revoke my Will“. For those who are preparing vows to be together until “death do us part”, you do need to think about what happen when death does, in fact, part you.

In Queensland, section 14 of the Succession Act 1981 (Qld) provides that Marriage automatically revokes a Will, unless the Will was expressly made in contemplation of the marriage.

If a Will is made in contemplation of marriage, the contemplation must clearly state the testator (Will maker) expected to marry the particular person and intended that the Will should not be revoked.

The effect of Divorce (or separation from a Civil Partnership / de facto relationship) on your Will

In Queensland section 15, 15A & 15B of the Succession Act 1981 (Qld) sets out the effect that divorce (or separation from a Civil Partnership / de facto relationship) has on a Will.

Unless a contrary intention is shown in the Will, a testator’s divorce (or separation from a Civil Partnership / de facto relationship) revokes the following:-

1. Any beneficial interest the testator’s former spouse/civil partner/de facto partner had under the Will;
2. Any appointment the former spouse/civil partner/de facto partner has as an executor, trustee, advisory trustee or guardian under the Will; and
3. Any grant, made by the will, of a power of appointment exercisable by or in favour of the Will maker’s former spouse/civil partner/de facto partner.

The Will of the testator then takes effect as if the former spouse/civil partner/de facto partner had died before the testator.

However, in Queensland, a testator’s divorce (or separation from a Civil Partnership / de facto relationship) does not revoke—

1. the appointment of the testator’s former spouse/civil partner/de facto partner as trustee of property left by the Will on trust for beneficiaries that include the former spouse’s/civil partner’s/de facto partner’s children; or
2. the grant of a power of appointment exercisable by the testator’s former spouse/civil partner/de facto partner only in favour of children of whom both the testator and the former spouse/civil partner/de facto partner are parents.

Conclusion

Marriage and divorce/separation can have unknown and unintended consequences on your Will. The next document that you should sign after your Marriage Certificate, should be a new Will.

Similarly, if your marriage/relationship doesn’t turn out to be “happily ever after”, you need to give consideration to updating your Will.

Whether you are getting married or divorcing/separating, we recommend you contact our experienced Gold Coast lawyers team to discuss the legal implications and effects on your Will.

Firstly, give yourself a pat on the back! It is great that you have reached agreement, as you will save the considerable legal costs involved in arguing over who gets what and ending up in court.

Once an agreement has been reached between you as to how you wish to divide your assets and liabilities in a family law settlement, you have the option of entering into a financial agreement or consent orders to formalise and finalise your agreement.

You will need to have either consent orders made or a financial agreement in place, to legally resolve the dispute once and for all (so that it can be used in resisting a court application in the future with respect to the same issues).

Consent orders or a financial agreement will also be required to obtain the stamp duty exemption for the transfer of any interest in property pursuant to your agreement.

Consent orders are often preferred over financial agreements, where a potential future breach of the terms of the agreement by one party is sensed as a serious likelihood by the other party. It is easier and less expensive to enforce compliance with consent orders than it is with financial agreements.

It is also often less expensive to both parties to formalise their agreement with consent orders, and consent orders are harder to set aside than a financial agreement.

I will explain both options to you further below:

Consent Orders

We will draft any agreement reached in the form of consent orders, and file those orders in the Family Court with an Application for consent orders. It will be necessary for both parties to sign. Your spouse will not need a lawyer (if he or she chooses not to) for this process.

If the consent orders contain a superannuation split, flag or otherwise impose an obligation on the trustee of a superannuation plan, we must first serve written notice of the terms of the order on the Trustee of the superannuation plan in which the interest is held.

After the application for consent orders is filed, a Registrar of the Family Court will consider the application. If the Registrar is satisfied that the orders should be made, the Registrar will sign the proposed orders and sealed copies will be sent to us. Your court appearance for this process is not required, as the Registrar will decide the application in chambers in the absence of the parties.

If the Registrar is not satisfied that it is just and equitable for the orders to be made on the information before the court, a notice will be sent to us with a brief explanation as to what further information or evidence is required.

It may be necessary for the application to be ultimately heard in court, however this generally only occurs in rare cases where the orders appear to be grossly unfair to one party.

In a best-case scenario, the Registrar will make the consent orders, and sealed copies will be returned to us within 1-3 months of filing.

Financial Agreement

It may be preferable or necessary to prepare a financial agreement in certain circumstances instead of consent orders. These circumstances include:

1. where the parties cannot wait for consent orders to be made (a financial agreement is binding as soon as it is signed by both parties);
2. if the property settlement is unfair to one party, or
3. assets or businesses are to be continued be jointly owned by the parties.

If a financial agreement is preferred, then we will draw up the required agreement. Once the terms are approved by you, we will send it to your spouse (or their lawyer) to review and settle the terms by negotiation.

A financial agreement aims to oust (remove) the jurisdiction and power of the family law courts in relation to all financial matters to which the financial agreement applies. The financial agreement is not filed in the court.

The financial agreement can deal with all or some of your property, and spousal maintenance and superannuation.

To be binding the financial agreement:

1. Must be in writing;
2. Must specify which section of the Act it is made in accordance with;
3. Must be signed by both of you;
4. There must be a Statement of Independent Legal Advice for each of you from a qualified legal practitioner setting out the matters referred to in the Family Law Act (“the Act”), and confirming that the advice was given to you each before you signed the financial agreement;
5. The Statements of Independent Legal Advice must be exchanged;
6. One party will retain the original financial agreement and the other will be given a copy;
7. There should have been full and frank disclosure of all financial matters between both of you (however this is not strictly necessary under the Act); and
8. All of the technical requirements set out in the Act must be complied with.

A financial agreement is a complex and technical document and takes a lot of time to prepare. There are schedules with all assets and liabilities. A comprehensive letter of advice to you is also required.

Your spouse will need a solicitor to advise him or her on the financial agreement and sign a certificate of advice, otherwise it will not be binding.

If either of the parties breach a term of the financial agreement, the other party can apply to a family law court to enforce the financial agreement. If the financial agreement is held to be valid and enforceable, the court can enforce the terms of the financial agreement as though those terms were orders of the court.

The Advantages and Disadvantages of a Financial Agreement Compared with Court Orders

The advantages to you of making a financial agreement may be summarised as follows:

• Entering into a financial agreement brings certainty to the outcome of the division of your property. This also applies to consent orders.
• Entering into a financial agreement also brings certainty to the payment of spousal maintenance, and unlike consent orders made by the court, the spousal maintenance clauses in the financial agreement (if binding) can be used to resist an application being made to the court for spousal maintenance by either party in the future.
• The terms of a financial agreement are generally not construed by the court to see if they are “fair” or “just and equitable”, unless they are grossly unfair to one party and that party was unduly influenced or coerced (forced) into signing the financial agreement by the other party directly or through some unconscionable (unreasonable or unacceptable) conduct, or duress.
• Because the agreement is not filed in the court unless one party wants to enforce it or set it aside, the court does not have the opportunity to see if the financial agreement effects a “once and for all” division of assets. A financial agreement therefore gives you more flexibility than a court order, as the court requires a final division of the party’s assets and looks to sever all financial ties between the parties.
• You will avoid the costs of protracted court litigation over a property settlement following separation, which in some instances can cost up to $120,000 (or more).

The disadvantages of making a financial agreement or consent orders include:

• You are contracting out of your right to have a court determine a just and equitable division of your assets and assess your entitlement to property and/or spousal maintenance following separation;
• The terms of the financial agreement might not be within the range of your likely entitlement, depending on the date of separation, your future needs at the time, the size of the asset pool at that time, and the contributions (both financial and non-financial) that you have made. At least with consent orders you have the security of a court registrar reviewing the terms and being satisfied that they are within your likely range of entitlements.
• Financial agreements are able to be set aside by a court if they are not drafted and executed in compliance with the Act, and for a number of other reasons including non-disclosure of a substantial asset, fraud, undue influence, unconscionable conduct, duress, mistake and where it is no longer possible or it is impracticable to carry out the terms of the financial agreement.

For any further advice and assistance discuss all the details of your matter with our specialist family lawyers for your family law property settlement matter, or which is the best way to proceed when you have reached an agreement, please contact our Gold Coast lawyers team at OMB Solicitors.

Divorces can be an emotionally tough time for both partners, as well as affected third parties such as children, parents, in-laws and even friends. Unfortunately, divorces can also be a lengthy and tiring process.

Eligibility for divorce

Before a spouse can apply for a divorce, there are specific eligibility requirements that must be met. Either spouse must have been born in Australia or be an Australian citizen by grant or descent. They must otherwise be lawfully present in Australia and intend to continue live in Australia and have been in Australia for a period of at least 12 months.

The marriage between the spouses must be ‘broken down irretrievably’ and the applying spouse must consider that there is no reasonable likelihood of reconciliation and resumption. The spouses must also have been separated for at least 12 months and one day.

If the spouses have been married for less than two years, evidence of a counselling certificate, or evidence saying why this could not be provided, must also be filed.

If the spouses have, at any time, lived with one another during the 12-month period, extra evidence will need to be given to prove that there has been a change in the marriage.

Initiating an application

Once these requirements are met, an Application for Divorce form must be completed, either joint or sole. The application will be joint if both spouses involved in the divorce wish to mutually make the application. If the application is sole, one spouse is making the application and the other spouse is the respondent. The application must then be sworn or affirmed in the presence of family lawyers, a Justice of the Peace, or another who is authorised to witness your signature on the document.

It is advisable that the laws governing the State or Territory in which the application is being made are reviewed, to determine that the witness of the document is authorised to do so. If the applicant is overseas at the time he or she wishes to have the document witnessed, the document can be witnessed by Notary Public, an Australian Diplomatic Officer or Australian Consular Officer, or an employee of the Australian Trade Commission.

Filing and serving documents

Once the application has been completed, the past procedure was to the mail the application to the Family Law Registry along with two photocopies of the document and also a photocopy of your marriage certificate (though this does not need to be sworn, affirmed or certified). Once the Family Law Registry received the application, the court would then file it, and forward sealed copies of the application with a file number, along with a time and date of the scheduled hearing.

However, as our firm is registered with the Family Court portal, we are able to file the application online, and we will obtain a hearing date at the time of fling. We then print sealed copies of the divorce application to serve (with an information brochure from the court) on the other spouse.

The application must be served to the other spouse either by mail or by a third party within a time period of 28 days before the scheduled hearing date, if the spouse lives in Australia, or 42 days if the spouse lives overseas. If the other spouse’s residential address is unknown, an order to either dispense with service or enable substituted service can be applied for by the applicant spouse.

With a joint application, there is no need for service as both parties are applying together for the divorce.

Costs to file for divorce

The average cost of the filing fee for a divorce application in the Federal Circuit Court is usually $900. If financial hardship is an issue, the spouse applying can also apply for a reduction in the filing fee. In this case, the spouse must provide to the Court specific documents such as Centrelink income statements, health care cards, earlier government grants such as Legal Aid, payments for Austudy, or evidence that the applying spouse is a prison inmate or held in legal detention (if that is the case).  This evidence would need to be provided by both spouses in a joint application, or solely by the spouse initiating the application if a sole applicant.

Children and previous names

If there are children of the marriage, the applying spouse must provide to the court the current particulars of the children and care arrangements. Children of the marriage include step, fostered, adopted or biological children, and the details for all such children must be included. This information would include whether the child or children were born before or after the separation, and/or whether the non-biological children were a part of the family before the separation. The particulars and arrangements of the children would include anything from where they primarily live; their contact with each parent or reasons explaining why contact is limited or no contact with a parent; which school they attend; any current arrangements involved, as well as their health.

The financial positions of each parent also must be provided to the court, and if applicable, details of non-provision of financial support by a parent. Additionally, if a spouse in the divorce has a different name to both the married or maiden name, an affidavit will need to be filed with the court, explaining the difference.

Granting of a divorce

Following the granting of a divorce, the divorce will take one month and one day to finalise unless the court makes a special order to shorten this time frame.

As described, a divorce is a long and tiring process, and legal assistance is advisable throughout the process.

Independent legal advice will assist a spouse to understand their rights and responsibilities, how the law both works and applies to their individual cases.

Please contact the Gold Coast Lawyers at OMB Solicitors for assistance and advise for divorce and any other family law issues that are causing you concern. There are often strict time limits involved to do certain acts and file certain documents, and failure to obtain legal advice is not an excuse readily accepted by the Court for missing these time limits.

To learn more about how we can help you advise for divorce, contact our Gold Coast Divorce lawyers today.

One of the first things to become clear when you are going through separation and divorce is that there is a lot of confusing legal jargon. There are technical terms about the property, financial and even parenting matters that inevitably surface as your relationship officially ends. For example, you may have heard of a ‘Conciliation Conference’ but can be forgiven for not knowing exactly what that means.

Also known as a ‘Property Settlement Conference’, this is simply a meeting where you and your former spouse or partner have a chance to reach consensus about the distribution of your property before going to court.

Unfortunately, you cannot schedule this meeting yourselves. Instead, the Court will schedule it for you, though this will only happen if you have not resolved your differences during or following a preliminary meeting with a Registrar of the Family Court in what is called a ‘Case Assessment Conference’.

Preparing for the Property Settlement Conference

If you cannot resolve your disagreement during the Case Assessment Conference, the registrar will let you know what you must do prior to the Property Settlement/Conciliation Conference.

After the Case Assessment Conference, you will usually have 28 days to exchange relevant information following the Registrar’s instructions. Along with new material relevant to your case, this may also include documents that were not shared prior to the Case Assessment Conference. Here is what you will need:

• Paperwork about any financial matters referenced in your respective financial statements;
• proof of joint and individual financial contributions made when cohabitation began;
• documentation of any inheritances, gifts or compensation payments received during cohabitation;
• documentation about the purchase or sale of property in the year before or since the separation, and any increase or reduction of liabilities since separation;
• detailed documents about superannuation.

Depending on the specific nature of your dispute, you may also need to complete a financial questionnaire and balance sheet as directed.

Within this context, it is crucial that you share all the facts and documents about any aspect of your application. Failure to do so can have grave consequences, including delays, added costs or even an order mandating that you pay any costs incurred by your former partner or spouse. At its discretion, the Court may also issue a greater order for a property settlement favouring the other person.

Understanding the process

Even with the proper legal, financial, and emotional support, preparing for a Property Settlement Conference can be stressful. But knowing what to expect at the meeting can help lessen your anxiety.

One of the first questions you may have is how long the meeting will take. The answer is based on the unique circumstances of your case, but you should be prepared to spend one to two hours in conference.

The meeting format depends upon the Registrar’s preferences. He or she will usually begin by speaking with each of your lawyers to confirm the specific nature of the disagreement. Based on this information and material submitted prior to the meeting, the Registrar will frame the ensuing conversation with your lawyers in a manner designed to achieve consensus. However, you should not be surprised if the Registrar also asks to speak with each of you directly.

You should be aware that in most cases, both you and your ex-partner or spouse must both attend this conference. If either you are worried about this for any reason, you should let your lawyer know so he or she can relay your concerns to the Registrar, who will make arrangements to address this issue.

You should also be aware that anything said during a Property Settlement Conference or Conciliation Conference is usually confidential. This means that you cannot refer to these conversations in any ensuing Court hearings if the matter is not resolved.

The three parts of the Property Settlement Conference

A Property Settlement or Conciliation Conference is usually a three-step process. These steps are the introduction, the settlement discussions, and the conclusion. Below is a simple description of each stage:

• Introduction: The Registrar will explain the general format for the meeting and lead a brief discussion about any points of contention. He or she will also give guidance for ensuing negotiations based on the specific circumstances of your case.
• Settlement discussions: This is when the Registrar will facilitate the actual conversation about how to resolve your disagreement(s).
• Conclusion: At the end of the meeting, the Registrar summarises everything that has happened and reviews any agreements. If all the issues have been successfully addressed, your lawyer will put the agreement(s) in writing so that the Court can issue consent orders accordingly.

What if we still do not agree?

In a perfect world, everything will settle at the Property Settlement or Conciliation Conference. If not, the only alternative is court intervention. In this case, you will have to attend a pre-hearing conference, which is usually held within six to 12 months, and a pre-trial conference.

You should be aware that you and your former partner or spouse (and your lawyers) can keep trying to reach a settlement until the final hearing. If you still have not been able to resolve the issues by that time, the Court will evaluate all relevant material and testimony. After it does so, it will issue an immediate ruling or announcement that it will issue its decision later.

If you and your partner and spouse are going through separation or divorce and cannot agree on property, financial or parenting matters, it is essential to get the proper legal advice. Contact our Gold Coast Family Lawyers today.

Bob and Betty have both had terrible experiences in property settlement matters with their prior spouses. They are now in their 50’s and have been ‘going out’ for about 8 years. They have both sworn that they will never get involved in a de facto relationship or marriage again!

The facts

Bob and Betty do not live together. They have their own separate houses over an hour’s travel apart, and Betty still has 2 adult children from her earlier relationship still living with her.

They see each other 3 weekends a month. On 2 of those weekends Bob stays at Betty’s house for the weekend (2 nights) and on another weekend Betty similarly comes to stay with Bob. The reaming weekend they each stay at their respective homes and do not see each other. They ring each other once or twice during the week.

Bob and Betty do not have any joint accounts, nor do they share finances. They have their own assets and liabilities and do now own anything jointly. They have separate credit cards and neither of them is authorised to use the others card.

When they go out to dinner together, Bob, being the gentleman that he is, usually pays. They regularly go on overseas holidays together and pay their own way, though Bob again will pay for meals and drinks.

They have a sexual relationship but have no children together.

They are known as a couple to close friends and family, and when they are out together in public on weekends or on holidays they would be seen as a couple. However, on all other occasions during the week and on one weekend a month, they will be seen living their own separate lives, paying their own bills, buying their own groceries, doing their own washing, and cleaning, and maintaining their own homes, gardens, and lawns.

On the weekends that they are at either party’s property, they both make contributions to their food, groceries, and cleaning. Bob will ‘wipper snip’ while Betty is on the ride on mower, and so on. They both shared in the repainting the inside of Betty’s house.

Have Bob and Betty fallen into the trap. Are they in a de facto relationship, even though they do not live together?

What constitutes a de facto relationship?

Every person’s circumstances will be different to that of Bob and Betty, and each case will be decided by scrutinising all aspects of each relationship.

The Family Law Act 1975 (“the Act”) is a Commonwealth Act, so the same de facto laws apply throughout Australia. The Act deals with what factors a court must consider when deciding if a de facto relationship exists or not.

If (god forbid) Bob and Betty broke up, and Betty ‘turned nasty’ and wanted to file proceedings in the court for a property settlement alleging a de facto relationship, she would have to satisfy the Court that all the following circumstances exit:

1. That she was in a genuine de facto relationship with Bob, which has broken down irretrievably; (can Betty prove this?)
2. That the relationship meets one of the following four gateway criteria:
   1. That the period for the de facto relationship is at least 2 years (Betty could show this);
   2. That there is a child of the de facto relationship (not applicable in Betty’s case);
   3. That the relationship is or was registered under a prescribed law of a State or Territory (again not applicable in Betty’s case); or
   4. When assessing property or custodial claims in cases of a breakdown of a relationship, it is recognised that significant contributions were being made by one party and the failure to issue an order would result in a serious injustice (it would appear that neither Bob nor Betty made a significant financial or non-financial contribution that deserves an adjustment to solve any injustice).
3. That Bob and Betty have a geographical connection to a participating jurisdiction (both Bob and Betty are Australian citizens and live in Queensland, so this is satisfied);
4. That their relationship broke down after 1 March 2009 (Bob and Betty only recently separated, so this requirement is satisfied).

Having satisfied all the other gateway requirements, whether Betty is successful will depend upon her proving that they were in a genuine de facto relationship.

What makes a genuine defacto relationship?

In deciding whether Bob and Betty were in a genuine de facto relationship for the first gateway criteria, the court will have regard to the following matters.

Section 4AA of the Act defines a de facto relationship. The Act requires that Bob and Betty must have had a relationship as a couple living together on a genuine domestic basis for a defacto relationship to exist.

The Act then gives a list of factors to consider in deciding if Bob and Betty had a relationship as a couple living together on a genuine domestic basis.

Those factors are:

• the duration of the relationship (8 years – this is good for Betty);
• the nature and extent of common residence; (the parties lived separately and only spent holidays and 6 nights a month together – this is not good for Betty’s prospects);
• whether a sexual relationship exists or existed (it did – again this good for Betty);
• the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties; (Bob and Betty were financially independent of each other – this is not good for Betty);
• the ownership, use and acquisition of their property (Bob and Betty did not buy any assets together, and they owned their own homes and vehicles. Again, this is not looking good for Betty);
• the degree of mutual commitment to a shared life (this appeared to be in existence, however Bob says they were just taking one day at a time and if the relationship did not last, then so be it. Bob says Betty was of the same view, but non-surprisingly in her affidavit she claims that this commitment to a shared life existed. The Judge may need to decide based on credit, who is telling the truth in a “he said she said” argument, and objectively it is difficult to figure out from the facts, which are (like every case) so unique. Given that Betty has the onus of proving the facts I will give her a fail on being able to prove this joint commitment);
• whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship (this relationship was not so registered, and this issue is really for same sex relationships before amendments were made to the Marriage Act to allow same sex couples to marry – this is not relevant to Bob and Betty who were very much male and female);
• the care and support of children; (there are no children together, another blow for Betty) and;
• the reputation and public aspects of the relationship (I will give this one to Betty because all their family and close friends knew them as a couple, and when in public together they acted as couple).

No one factor is more important than any other. However, the more factors from this list that Betty can prove will aid her in convincing the Court that there was a de facto relationship. Likewise, the more factors that Bob can disprove will help show that there was not a defacto relationship in existence.

Betty is looking good on 3 of the above factors (duration of relationship, a sexual relationship and public perceptions), however Bob is looking much better on 5 of the factors (no common residence, financially independent of each other, property ownership use and acquisition, no mutual commitment to a shared life, and no children together).

There is not a certain number of factors from the list that must exist (or not exist) for a defacto relationship to be proven (or disproved for the absence of a defacto relationship).

There is also no minimum number of nights that the parties must spend together in a common residence, nor is there a need for the parties to have actually lived together at all before a defacto relationship will be found to have existed.

The Family Law Act also recognises that a person who is married, may also possibly be in a defacto relationship with another person at the time. A person can also be in several de facto relationships at the same time if the test is satisfied for each of those relationships.

Does Betty succeed?

If I were acting for either Betty or Bob, I would be able to argue very strongly in either of their cases of the existence or non-existence of a defacto relationship. Who will win will depend on how the evidence falls at the hearing, matters of credit and what factors the Judge considers to be most important in deciding the matter one way of the other. Judges have very wide discretion in deciding these matters, one Judge might say there was a defacto relationship, while another Judge (or the Court of Appeal) may decide that there was not.

If I were a betting man, my money in this case would be on Bob, but I would not put too much money on the bet. This is close to a 50/50 chance. It could go either way.

If I were advising Betty or her prospects of success, I would be telling her that she has a compelling case, but I would be testing her to see if she accepts whether it is worth the risk. If Bob opposes the existence of a defacto relationship (which he will) Betty will have to pay significant legal costs that will be involved if the matter goes ahead all the way to a final hearing. She will need to weigh that up with the amount that she is looking for, and her prospects of success. The normal rule in family law cases is that each party pay their own legal fees.

If I were acting for Bob, again I would be telling him that he also has a compelling case. I would recommend that he strongly oppose Betty’s application on the basis that there was no defacto relationship and gather as much evidence as he can to support this conclusion.

Generally, matters like this will settle at mediation, with both parties accepting that going to Court will be expensive, taxing on their time and their emotions, and involves a serious risk that they each might fail.

Time limit to start proceedings for financial orders

If (despite her legal advice on costs and chances of success) Betty still wishes to try to obtain financial orders, and settlement of the matter at a mediation fails (neither Bob nor Betty will shift from their positions), then Betty must apply to the court within two (2) years of the breakdown of the defacto relationship. After that time, she would need the leave (permission) of the Court to apply, and the Court does not readily give that leave.

For all legal advice on property or parenting issues, please contact our Gold Coast Lawyers firm and make a free first appointment with Gary Mallett.

Sometimes you simply must tell the truth, the whole truth and nothing but the truth. A lie by omission – something you do not mention when you should – is still a lie. Australian law dictates that people seeking resolution of certain issues related to separation or divorce must make certain information available to each other, and to the court. This is called the duty of disclosure.

When it applies

As stipulated in Family Law Rules 2004 (“the Rules”), the duty of disclosure applies to you when you are seeking resolution of financial matters in a separation or divorce. This means you must make certain information available to your former spouse or partner in property settlement, spousal maintenance, and similar cases.

You and your former spouse or partner must also exchange certain information when seeking resolution of parenting matters. This may include but is not limited to: living arrangements, visitation, and child support.

The timing and extent of disclosures

Legally, you must make “full and frank disclosure” of all information that has direct bearing on any point of contention in your case. In other words, you must give any pertinent material that you actually have, or that you have access to or authority over. And you must do so before the case goes to court.

It is best to be aware that both parties have this duty, and that it is ongoing. This means you must report any relevant changes – such as a job change or loss of employment – to the other person, and they must make similar information available to you. Your respective obligations to exchange pertinent information will not end until you reach an agreement, or the court issues a final order.

Finally, it is important to note that there are no legal stipulations about the way in which this material should be given, so it does not matter if you share electronic or paper records. The information you must give will also vary based on case type and your situation.

Your duty of disclosure in financial cases

In these cases, both of you must give comprehensive information about your respective financial circumstances. This usually means you must supply any or all the following:

• Documents reflecting your regular earnings;
• bank statements reflecting deposits and withdrawals from checking accounts, savings accounts and so on;
• tax documents;
• superannuation statements;
• material documenting the valuation and appraisals of assets;
• material about financial resources other than income, along with supporting documentation;
• information about interests in any company and/or trust, along with supporting documentation;
• information about any assets disposed of prior to and since separation.

Please bear in mind that this is not an exhaustive list, and you may need to give different and/or more material given that each case is unique.

Your duty of disclosure in parenting cases

In disputes over parenting matters, both of you must give information the court needs to make decisions about the care and living arrangements for a child. Specifically, you must supply any material relevant to the child’s welfare. As in financial cases, however, the type of information will depend on your unique circumstances.

The following is generally subject to disclosure in parenting cases:

• The child’s (or children’s) school reports;
• relevant assessments about the child/children and/or parents issued by doctors, psychiatrists, psychologists, social workers and so on;
• information about the amount of time the parent spends at work;
• information about the supervision of the child/children when they are not with you;
• information about any issues that affect each parent’s ability to care for the child, such as substance abuse, mental illness, or chronic medical conditions;
• official documents about any family violence, including intervention orders, police reports or relevant statutory body reports.

Penalties for noncompliance and dishonesty

Rule 13.01 of Family Law Rules allows the court to disregard any material that has not been fully and properly disclosed in finance cases. If you do not fulfill your duty of disclosure, the Court may also be reprimand you for contempt of court.

At its discretion, the court may also issue a costs order against you for failure to meet this obligation fully and truthfully. If it does, you will have to pay not only your own legal costs but also those incurred by your former spouse or partner. In the most drastic cases, you may be fined or incarcerated.

If either one of you finds out that the other failed to fulfill the duty of disclosure prior to the issuance of family law final orders, the aggrieved person can ask the court to change the order or set it aside. The court may also vacate or amend a final family law order if either of you have not fulfilled your duty of disclosure before it is issued.

As we have noted, each case is different. If you are going through separation and divorce, and you have questions about the type of information you have to disclose, contact our Gold Coast Lawyers today.

Clarifying Binding Death Nominations in Superannuation

Re Narumon Pty Ltd [2018] QSC 185

A recent decision in the Queensland Supreme Court, Narumon, emphasizes the importance of a valid Binding Death Benefit Nomination (BDBN) within superannuation funds and clarified whether an attorney has the ability to renew BDBN’s.

Summary: In Narumon, the deceased (Mr. Giles) was the sole member of the John Giles Superannuation Fund. Mr. Giles appointed his wife (Mrs. Giles) and his sister (Mrs. Keenan) as his attorneys under an enduring power of attorney (EPOA) for financial and personal/health matters. His attorneys were to begin making financial decisions on his behalf when Mr. Giles had been determined incapable of making his own decisions. In November of 2013, that very situation occurred and Mr. Giles was declared completely incapable of making his own financial, health, and lifestyle decisions. From then on, his wife and sister were authorised to act as attorneys on his behalf.

Mr. Giles made several BDBNs before he lost capacity. The most recently created BDBN was on the 5^th of June 2013, which directed his attorneys to distribute his superannuation death benefits, a portion of which were obviously left to his wife and sister, who just so happened to also be acting as his attorneys. Additionally, 5% of Mr. Giles’ death benefits were to be paid to a non-dependent and non-legal representative. The 2013 BDBN stated that three years after the date it was signed, it would cease to have effect and must be signed within three years of the member’s death.

Issue: 5% benefit to non-dependant and non-legal representative

In order to ensure that the 2013 BDBN and its extension were valid, Mrs. Giles and Mrs. Keenan decided to change the 5% nomination to a non-dependant and distribute it between the dependant’s already nominated. The court, however, confirmed that the original 2013 BDBN was valid, despite the 5% nomination to a non-dependant. The reallocation was found to be a conflict of interest and, since there was no explicit language in the BDBN allowing such a conflict, the new BDBN would not be valid.

Issue: May an attorney make a BDBN?

The court held that, yes, an attorney has the power to make a BDBN on a member’s behalf. His Honour looked closely at the language of the deed. The deed did not prohibit such an act. In fact, another section expressly stated that an attorney would enjoy all of the rights that a member would have. Since there was no restriction under the Superannuation Industry (Supervision) Act of 1993 preventing an attorney from making a nomination, there was nothing to prevent Mr. Giles’ attorneys from making a nomination on his behalf.

Issue: Validity of the 2013 Binding Death Benefit Notice

The issue in question was whether or not Mrs. Giles and Mrs. Keenan would be allowed to renew the 2013 BDBN or make a new one, despite also being recipients. The Court considered whether or not there was a conflict created by the dual interests of Mr. Giles’ attorneys. In the end, the judge ruled that there was no conflict created.

The judge reasoned that because they were merely confirming existing estate planning intentions, there was no conflict. However, it is unclear whether making one from scratch would also be allowed or if that would be considered a conflict. Therefore, it is clear that the individual circumstances for each case will need to be considered in determining whether or not a BDBN renewal is likely to be valid.

“This is the first time it’s been considered as far as I’m aware of, that an attorney subject to the trustees of the super fund is able to renew a binding death benefit nomination for the person for whom they are the attorney,” said Scott Hay-Bartlem of Cooper Grace Ward Lawyers after the judgement.

To learn more about Divorce & Separation, contact our Gold Coast family lawyers at OMB Solicitors today.

For Australians going through divorce and separation, there are plenty of advantages of living in the ‘Information Age’. Now it is easier than ever before to access the court forms and other material you may need.

This makes it possible to do more on your own, so you may save money on legal costs. There are also plenty of disadvantages, however, the most significant of which is the amount of misinformation readily available in the digital world. If you’re getting divorced or separated, following the wrong legal advice – be it from the Internet or even friends, family and workmates – can be costly, especially when you’re trying to figure out who gets what in a settlement. Here’s what you should know.

The first and most important thing to understand is that every case is different. Essentially this means that regardless of what you may have heard, read online or seen on television and films, everything is not always ‘split down the middle’. It also means there is no real basis for the belief that women always benefit from the property settlement, or that you must go to Court in order to get one.  It is true that courts must approve related orders, but they actually intervene in only a small percentage of cases.

Having said that, there is a proven method that is used to ensure that couples going through separation and divorce arrive at fair settlements. It consists of four steps, which we will discuss in detail.

To begin with, you should prepare a comprehensive list of assets and liabilities that will be shared with the other person. By law, each of you must fully disclose all of your assets and liabilities. This means you should be sure to include everything, irrespective of whether the asset or liability is in one person’s name, both of your names, or held by one of you and a third party. Although it is technically considered a different type of property, don’t forget to include your individual or joint superannuation interests on a separate list at this point.

The second step is a little bit trickier because it involves the identification and valuation or assessment of each person’s contributions to the marriage. Contrary to popular belief, this evaluation is not strictly limited to each of your financial contributions. Non-financial contributions, such as home improvements or those you made as a stay-at-home mum are assessed as well. Furthermore, ‘indirect’ contributions to the household – or those made by your relatives – are also considered. Each contribution is then assigned a percentage on a scale specifically created for this purpose.

At the next stage, another set of factors is assessed. These include but are not limited to each person’s health, each person’s ability to make a living, how many kids you have, how old they are, who will have primary custody and the extent to which your ex-spouse will be involved in their lives. Another key factor that will be considered at this stage is whether or not any of your children require special care. If warranted at this point, the determination made in the previous step may be changed.

Finally, in the fourth step, the court takes one more objective look at the division of property to see if the outcome reached through this process is fair and reasonable to everyone involved. This final determination is based on all circumstances of the case. Although the court can make additional changes at this time, it will seldom do so.

The bottom line is that the decision to end a relationship is seldom easy. The prospect of separation and divorce can be intimidating and overwhelming, even when a wealth of information is so readily available. The best way to safeguard your interests and secure a fair outcome for everyone involved is to work with experienced Gold Coast family lawyers. If you are considering separation and have questions or concerns about the process for reaching a settlement, contact our Gold Coast Lawyers today.

Even in a best-case scenario – one in which you and your partner have decided to end the marriage on amicable terms – questions may arise about your legal rights and obligations. For example, you may both have questions and concerns about spousal maintenance. Specifically, you may be wondering if either of you is eligible and if so, how to apply, the deadlines for doing so, whether there are different types of spousal maintenance and so forth. Here are some of the things you need to know.

To begin with, spousal maintenance (known as alimony in America), is simply a legal term for the financial support one former spouse provides for the other following separation or divorce.

Ideally, you and your former spouse are still on good terms and you can agree on all of the issues related to spousal maintenance (such as the amount and a schedule for payment). When this is the case, you can simply put the terms into a legally binding Financial Agreement or Consent Orders that must be filed with and approved by the court.

If, on the other hand, you can’t agree on anything, much less the terms for spousal maintenance, you can apply for Spousal Maintenance through the Federal Circuit Court or Family Court.

Application is irrespective of whether you were in a traditional marriage or a de facto relationship (including a same-sex de facto relationship) but there are different standards of proof you must meet for eligibility.

To be eligible for spousal maintenance if you were in a de facto relationship, you must demonstrate that:

• you were in the relationship for at least two years, or
• you and your former de facto partner have a child together, or
• one of you made substantial monetary contributions to the other’s property, or
• one of you officially registered the relationship (at Registry of Births, Deaths and Marriages, or an interstate/overseas equivalent).

On the other hand, to qualify for spousal maintenance if you were in a traditional marriage, you must prove that:

• you cannot support yourself financially;
• your former spouse has adequate means to do so.

More often than not, the court will award spousal maintenance if you can show that your former spouse earns significantly more than you do and/or that you lack the potential to earn sufficient income based on factors including but not limited to your education and past work experience. For instance, the court may approve your application if you are a ‘stay at home’ parent and cannot secure outside employment. Your application for spousal maintenance may also be approved if you have had a prolonged absence from the workforce and now lack the skills or are too old to secure employment, or if an illness precludes you from working.

Be aware, however, that spousal maintenance is not automatic just because you don’t make any money of your own, or you don’t make very much. In other words, if you are capable of working and simply choose not to do so, the court is likely to deny your application.

You should also be aware that there are different deadlines for applying for spousal maintenance. With certain exceptions, if you were in a traditional marriage, you must apply for spousal maintenance within a year (12 months) after the divorce order is granted. Conversely, if you were in a de facto relationship, you must make this application within two years (24 months) after the relationship officially ends.

Another thing to keep in mind is, for the most part, spousal maintenance is not a long-term benefit. Usually, it is only in effect until you (the applicant) gain or regain your financial footing by getting a job or receiving the training necessary to find work.

Furthermore, if you were in a conventional marriage, your right to receive spousal maintenance from your ex-husband or wife usually ends when you marry someone else. However, your right to financial support received after the break up of your de facto relationship won’t necessarily end when you start a new one. This is because the court will consider the financial dynamics between yourself and your new de facto partner when determining whether you can support yourself.

The way in which spousal maintenance payments are made will also depend on your unique circumstances.  In some cases, you may prefer one large (‘lump sum’) payment, and in others, you may prefer regular payments once a month, twice a month, weekly or even annually. If need be you can also apply for spousal maintenance on a limited basis. This may be your best option if you know you only need enough financial support to tide you over until your property settlement is finalised.

It should also be noted that spousal maintenance is not limited to monetary payments. Transferring ownership of a motor vehicle, investment property or other assets is also considered as legal payment of spousal maintenance.

Finally, we must also point out that, contrary to popular belief, child support and spousal maintenance are two separate benefits. While spousal maintenance provides financial support for you, child support payments should be used only to meet the children’s needs. This means courts can – and do – issue orders for the payment of both.

Divorce and separation are emotionally trying for anyone. Addressing complex legal matters on your own during times of stress can complicate things even more. For more information about the legal aspects of divorce, separation and related issues, including but not limited to spousal maintenance, contact the Family Lawyers Gold Coast at OMB Solicitors today.

Who gets what will depend on the facts

Australian statistics show that one third of relationships end in separation or divorce. The growing breakdown of relationships caused by divorce or separation has allowed for the distortion and generalisation of what is perceived to be ‘Who Owns What’ in a property settlement. The reason for the misinformation is due to there being no specific rules that indicate which party will retain what in the event of a breakdown in relationship.  Each case is fact specific and will be determinable on those facts, each case differing from the one before and after it.

Property Settlement – the Law

Property settlement after separation is governed by the Family Law Act 1975 (Cth) (‘the Act”) and is applicable to married couples’ and De Facto (same sex and heterosexual) relationships. A property settlement may be applied for any time after the breakdown in relationship occurs and need not wait until divorced.

Get started quickly

Because a property settlement order will deal with assets and liabilities that exist at the time the order is made, it is strongly recommended that negotiations for a property settlement begin as soon as is practicable after separation. If you delay, and in some cases, parties have delayed for ten or more years, then the Court will deal with what property exits then, and not when you separated. One of the parties may have accumulated substantial additional assets since separation, and the other party may have run up substantial debts. The property settlement then (in 10 years) would look completely different to a property settlement reached within a reasonable time of separation.

Time Limits

Where a couple gets divorced they must commence property settlement proceedings (i.e. Bring a Court Application) within twelve months of the divorce. Whereas for a married and De Facto couple the application must be bought forth within two years of the breakdown in relationship. Where proceedings are not bought within these limits, a loss of rights may occur due to being outside the time frame.  The law takes into consideration the below factors and does not considered the way in which the relationship deteriorated.

This the way a Court will tell you “Who Gets What”

Judges have a wide discretion to make orders for property settlement. In some circumstances, a court will not make any order at all dividing the property, if it appears to the judge that it is just and equitable that each party should keep the property they have without making any adjustment.

However, if the judge decides that an order is necessary to adjust property interests, then orders to divide the property on a just and equitable basis will be different in almost every case, as the circumstances of each particular case that comes before the court are all unique and different.

In applying the legislation over the years, the courts have defined a framework within which it must work to achieve what is a fair and equitable division. This framework involves an approach with four or five steps.

The Steps involved in working out “who Gets What”

The steps to working out a property settlement now may be summarized as:

• What are the legal and equitable interests of the parties in their property;
• Should these interests be altered;
• What are the contributions of each party and what weight should be given to the contributions;
• What is the future of each party and should there be any adjustment for that;
• How is the proposed division to be implemented?

Step 1-  What are the legal and equitable interests of the parties in their property

The Court determines what the legal and equitable interests of the parties are in their property.

This will be all assets, liabilities and financial resources in joint names, and in each party’s separate names. Until an order is made, for family law purposes both parties have an interest in each asset in the property regardless of who owns it. The Court will take into account all of the property and financial resources in existence at the time that the order is made. Both parties have an obligation to make full and frank disclosure of all assets and liabilities that exist to each other and to the Court.

The Court then attributes values to each of the parties’ interests. Generally, the court will value the items as at the date that an order is made.

Step 2- Should the parties interests be altered

Once all the property is identified and valued, the Judge will take a step back and look at the length of the relationship, who brought what into the relationship, who owns what now, is there jointly owned property and/or bank accounts or did the parties keep their property separate, and was that their intention or agreement.

If the Judge is of the view that no adjustment in property interests is warranted, then no property settlement order will be made, and each party will keep what they currently own.

However, if relationship circumstances are such that an order is necessary to adjust property interests (and in most cases it will be), the Court proceeds to the next step.

Step 3 – What are the contributions of each party and what weight should be given to the contributions;

The Court determines the contributions that the parties have made to the acquisition, conservation and improvement of the property.  The contributions can be direct and indirect, financial and non-financial as well as relating to a homemaker/parent role and otherwise to the welfare of the family unit.  The Court will take into account the contributions made:

• at the commencement of the relationship,
• during the relationship, and
• since separation.

Some of the general principles that apply to the assessment of contributions are:

• There is no presumption that contributions are equal or that they were made in “partnership”;
• An evaluation must be made of the actual respective contributions of each party;
• Although in many cases the direct financial contributions of one party will equal the indirect contribution of the other as homemaker and parent, that is not necessarily so in every case;
• Care must be taken to recognise and distinguish a windfall gain;
• Whilst decisions in previous cases where special factors were found to exist may provide some guidance to Judges, they are not prescriptive, except to the extent that they purport to lay down general principles;
• It is ultimately the exercise of the Judge’s own discretion on the particular facts of the case that will regulate the outcome; and
• In the exercise of their discretion, the Trial Judge must be satisfied that the actual orders are just and equitable.

In a short relationship (up to seven years) the Court is more likely to adopt an asset by asset or “piecemeal” approach to the assessment. Relationships beyond that time will be regarded as a mid to long term relationship.

In mid to longer range relationships the Court is more likely to adopt a global assessment of contributions.  When taking into account the contributions of the parties the Court will have regard to any period of separation prior to commencement of the relationship.

The assessment of contributions will not be equal in circumstance where:

• One party has made a greater initial contribution than the other; or
• One party has received a significant inheritance (particularly late in the relationship);
• One party has received a significant gift (particularly late in the relationship);

Step 4 – Future Needs

The Court then assesses the future needs of each party, having regard to the various factors set out in the Act. These factors involve looking at and assessing the difference between each of the party’s:

• current income;
• income earning capacity,
• property and resources,
• superannuation entitlements,
• deficits in health,
• ages,
• closeness to retirement; and
• the need for one party to care for children of the relationship.

Step 5 – How is the proposed division to be implemented

The Court will then give consideration on how the proposed division of property is to be implemented. For example, an order may be structured where the wife gets to the retain the former matrimonial home as the primary care provider for the children, and the husband keeps his superannuation and business assets.

Conclusion

In Property Settlement Court proceedings, the Judge will decide “who gets what”. That judge has very wide discretion and may make a completely different order to the Judge in the next courtroom. You may like the order that is made, or you may detest it.

Suggestions

Before or during your relationship, enter into a binding financial agreement under the Act so that you (and not a Judge) can determine “Who Gets What” should you separate.

If you do separate without a Financial Agreement in place, it is important that you consult a family law solicitor to ascertain what your entitlements are likely to be, and then attempt to reach agreement as to “who gets what”, either personally, through your solicitors or at a mediation. If an agreement can be reached, your agreement can be finalised by consent orders of the Family Court or a Financial Agreement.

Contact our Gold Coast Family Lawyers

If you require assistance or advice with respect to:

1. Your likely entitlements upon separation;
2. Negotiation of a property settlement
3. Preparation of a Financial Agreement,
4. Organising a mediation,
5. Commencing court proceedings or the preparation of consent orders.