Family Law And You Booklet - Lsc.sa.gov.au

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Family Lawand You

Family Law and YouMarch 2019Legal Services CommissionThis booklet is for couples who are separating. Thisis a simple guide to Family Law - it is not a substitutefor legal advice.The information contained in this booklet hasbeen prepared with due care and is believed tobe accurate at the time of printing. However,no responsibility will be taken for the accuracyor reliability of such information, or for any lossthat may arise from an error or omission in theinformation.You can obtain free copies of this booklet frommany of the services listed at the back. Legal Services Commission SA2

Family Law and YouFamily law and youpageFamily dispute resolution2Lawyers4Family law courts5Family law terms6Children7Parenting plans8Parenting ordersSeparation913Divorce14Child support15Property20De facto partners and property23Family violence24Changing a name26Wills27Services28

FAMILY LAW AND YOUThe Family Law Act is the main law that dealswith divorce, disputes about children andproperty matters. All children are coveredby the Family Law Act, no matter where inAustralia they live or who their parents are.The courts that can make decisions underthe Family Law Act are federal courts calledFamily Law Courts. These are the FederalCircuit Court and the Family Court. SouthAustralian courts and tribunals are involvedin matters not covered by the Family LawAct, such as some specific property disputes,family violence, changing names and wills.Child protection cases brought by theDepartment for Child Protection are dealtwith in the Youth Court.This booklet explains family law basics andtells you what you have to do if you need totake legal action. In many cases, you will befaced with choices and you should get legaladvice before deciding what to do. A lawyercan help you understand your legal rightsand responsibilities, and explain how the lawapplies to your case. A lawyer can also helpyou reach an agreement with your formerpartner without having to go to court. Fordetails of where to get further informationand advice, see SERVICES on page 28.FAMILY DISPUTERESOLUTIONMost separated parents can work outarrangements for their children withoutgoing to court. All separating parents mustmake a genuine effort to resolve problems2by family dispute resolution, before applyingfor court orders about their children. Familydispute resolution can include counselling,mediation or arbitration.The Family Law Courts will not generallyaccept an application for parenting ordersunless a certificate from an accredited familydispute resolution practitioner is filed with theapplication. The certificate is a statement thatthe parties have not been able to resolve theirdispute through family dispute resolution. It isimportant to note that this requirement maynot apply to cases involving family violence,child abuse or urgency. A certificate is valid for12 months only.Family dispute resolution is conducted inan informal setting and is less expensive,time consuming and confrontational thangoing to court. The dispute resolutionprocess is handled by an independentperson who is skilled in dealing withfamily problems. They aim to help youand the other parent to work through yourdisagreement and try to find a solution tothe dispute. As both parents are involvedin reaching a solution, this improves thechances that the agreement will be longlasting.Family dispute resolution practitioners donot give advice so it is important to get legaladvice beforehand. Family dispute resolutionworks best when both sides feel safe andare able to negotiate equally. If there is ahistory of family violence or allegations ofchild abuse, neglect or abduction, it maynot be appropriate to attend family dispute

resolution and you should seek legal advice.Please note that the court may exemptyou from family dispute resolution in thesesituations.The Legal Services Commission providesfamily dispute resolution through its FamilyLaw Conferencing service. To use this serviceat least one parent must be eligible for legalaid. To find out more see our Family LawConferencing pamphlet.Family counsellors also give advice andassistance to couples who are consideringseparation or who are finding it difficult tocope with separation.A counsellor can help you to explore concernsyou may have about your relationship andassist you to deal with separation issuesand your children’s needs. Counsellors canalso help parents to resolve differencesabout parenting and negotiate contactarrangements for their children. You may seea counsellor separately or together with theother parent, whichever you prefer.If you reach agreement, you can record theterms of your agreement in a parenting planor apply to the court for consent orders.Most separatedparents can workout arrangementsfor children withoutgoing to court.3

LAWYERSThe Family Law Act has an emphasis onresolving family problems without going tocourt. However, when separating, it is stillwise to seek legal advice so that you knowwhat to expect when making decisions aboutchildren, child support, or property.When seeing a lawyer you should: find out how much it will cost you ask about legal aid show your lawyer any importantdocuments such as letters from yourformer partner or court orders be sure you do not sign anythingor agree to anything that you do notunderstand ask your lawyer to explain all youroptions and the risks involved in anylegal action keep a record of what you agreed to.Your lawyer should not commit you toanything that you have not discussed oragreed to. If you are not satisfied with yourlawyer, you can change to another lawyer,but you should not do this without a goodreason. Apart from having to start afresh andfamiliarise a new lawyer with your case, yourexisting lawyer may decline to release yourfile until you have paid any outstanding fees.Legal aidLegal aid may be available for disputes aboutchildren and for family conferencing. In somelimited cases, legal aid may be available forproperty disputes.You can apply for legal aid directly to theLegal Services Commission, or through a4private lawyer. The Legal Services Commissionwill decide if you are eligible by assessing yourfinancial situation. Your case must also havemerit. This means that what you are askingfor is reasonable and if you went to court,your case would have a reasonable chance ofsuccess.Legal aid is not free. If you get legal aid,you will have to pay a contribution towardsyour legal costs (minimum of 70 for familylaw matters). The amount you have to paydepends on your financial circumstances.If you own real estate but have no cash, youmay have to repay your legal aid costs whenyou sell your property or when your financialposition changes, even if this is many yearslater.Even if you do not qualify for legal aid, youcan still get free legal advice from the LegalServices Commission.Representing yourself in courtYou have the right to take your case to courtby yourself. You should still get legal advicebeforehand as you may be at a disadvantageif your former partner has a lawyer or if thecase is complex.If you are not eligible for legal aid andyou cannot afford to pay a private lawyer,you could seek help from a communitylegal centre or you may need to considerrepresenting yourself. If you are representingyourself, it is important that you knowsomething about the relevant law and courtrules. Court staff can help you with questionsabout court forms and court processes, butcannot give you legal advice.

FAMILY LAW AND YOUYour case, or story, must be presented tothe court in writing, using the correct formsand affidavits. These must be preparedproperly and this will require some skilland knowledge. You will need to know thecontents of documents from the other sideand how to challenge incorrect material.If your matter goes all the way to trial, youwill also need to know the court rules aboutexamination (questioning) and crossexamination of witnesses. The court is limitedin the assistance it can provide you if you arerepresenting yourself.Duty Lawyers and Social SupportServiceDuty lawyers at the Family Law Courts can: Provide family law advice Help with adjournments Help with Legal Aid applications Provide referrals to private lawyers andother servicesDuty lawyers cannot: Prepare complex court documents Represent you in interim hearings,contravention applications and finalhearings (trials) Provide specific legal advice orrepresentation in court if there is a conflictof interest (for example, if the other partyor a child is represented, or has previouslybeen represented, by a Legal ServicesCommission lawyer). In such cases the dutylawyer will provide general informationonly. Provide specific legal adviceregarding property settlements (onlygeneral information and advice) Assist with Youth Court (care andprotection) mattersThe Legal Services Commission also providesa social worker at the court to supportpeople affected by family violence. The socialworker can help with safety planning and canconnect clients with accommodation, financialcounselling, and other social support services.FAMILY LAW COURTSBoth the Family Court and the Federal CircuitCourt are ‘Family Law Courts’ and have thepower to deal with Family Law Act matters.The forms you use and the processes you mustfollow depend on which court you apply to.Both Family Law Courts deal with: all orders relating to children includingwhere a child lives, who a child spends timewith and communicates with, child supportor other issues that might arise regardinga child’s welfare (e.g. education, religion,medical matters) enforcement and contravention of courtorders location and recovery orders as well aswarrants for the apprehension or detentionof a child determination of parentage applications for maintenance property disputes between coupleswho have been married or in de factorelationships.5

The views of the childrencan be taken into accountdepending on theirmaturity and level ofunderstanding, as wellas the reasons for thechildren’s views.Almost all family law cases start in the FederalCircuit Court. The Federal Circuit Court dealswith less complex family law matters, childsupport, and all divorce applications.The Federal Circuit Court can transfercomplex matters to the Family Court.The Family Court deals with the mostdifficult and complex cases. Consent orderapplications are also made in the FamilyCourt. A few types of cases are only heard inthe Family Court, for example, internationalchild abduction and nullity of marriage. Youshould seek legal advice before making anapplication to the Family Court.Family law cases begin with an application tothe court. Fees are charged for lodging mostapplications but if you are facing financialhardship, you may be able to apply to havethe fee reduced or waived. For some matters,such as an uncomplicated divorce, most6people are capable of filling in the formsthemselves. If there is a dispute about childrenor property, then it may be better to have alawyer help with your application to the court.FAMILY LAW TERMSThe terms residence and contact (previouslyknown as custody and access) are no longerused. The new terms that are used reflecta greater emphasis on shared parentingwherever possible.The term ‘lives with’ replaced residence andcustody. Similarly, the terms ‘spends time with’and ‘communicates with’ replaced contact andaccess.A Child Representative is now called anIndependent Children’s Lawyer, and the ‘child’swishes’ are now expressed as the ‘child’s views’.

FAMILY LAW AND YOUCHILDRENThe Family Law Act refers to parents’ dutiesand responsibilities and the best interests ofthe child. It says that children generally havea right to know and be cared for by boththeir parents and to spend regular time withother people significant to their care, welfareand development, such as grandparents. Thecourt may consider what the parents want,but is most concerned about the childrenthemselves and ensuring that the bestinterests of the children are met.The views of the children can be takeninto account depending on their maturityand level of understanding, as well as thereasons for the children’s views. In certaincircumstances, the court can order theappointment of an Independent Children’sLawyer to represent the interests of thechildren and help the court determine whatis best for them. No one under the age of 18is allowed inside the court room, includingbabies.The way parents or other family membersreact and adjust to the separation makes abig difference to how children feel. Continuedfighting can hurt children more than theseparation itself. Children need the continuingcare and support of both parents. They mayworry less if you can agree about what isgoing to happen and explain why to them.However, you should be careful not to discussthe dispute with the other parent or involvethe children in adult matters.What you need to considerWhen making arrangements for children, youwill need to consider: whether it is reasonably practical and in thebest interests of the children to spend equaltime or substantial and significant time witheach parent (substantial and significanttime includes times other than weekends,school holidays and other days) how their time will be spent with othersignificant people in their lives, such asgrandparents and other relativesWhat happens to children afterseparation? who will look after them after school where they will spend holidaysLike adults, children react in differentways to separation or divorce. How theyreact often depends on the child’s age,temperament and the level of cooperationor conflict between the parents. For childrenup to 5 years old, family breakdown can bedifficult to understand. Older children canalso experience a time of confusion anduncertainty even though they are more ableto understand what is happening. any other things such as choice of school,sport, health care, or religious matters, and the children’s cultural background, and howthey will continue to be involved in thatculture.Every family is different, so the arrangementsthat work for your family may be differentfrom other families. Try to make arrangementsthat will work the best for your children.7

PARENTING PLANSA parenting plan is a written agreementsigned and dated by both parties, that setsout parenting arrangements for children. Allseparated parents could consider preparinga parenting plan. Like a court order, anydecision made in developing a parentingplan should be made in the best interestsof the children. The plan can cover whereyour children will live, who they will spendtime with, their schooling and other specificissues such as holidays, medical and religiousmatters. The advantage of a parenting planis that it can help you and the other parentto be clear about any agreed arrangementsfor your children. You can get help to reachagreement about a parenting plan from afamily dispute resolution practitioner, seeSERVICES page 28. Anything discussed atfamily dispute resolution is confidential andcannot be disclosed to a court. However, theparenting plan itself is not confidential.Can a parenting plan be changed?A parenting plan should be flexible enoughto cover the changing needs of childrenand parents, and include a way of resolvingdisputes that may arise. A parenting plan canbe changed at any time to suit your needs, ifboth parents agree. If you want to change aparenting plan and the other parent does notagree, you may wish to attend family disputeresolution to resolve the matter.If you have attempted family disputeresolution and still cannot reach agreement,you can make an application for court orders.8However, you should seek legal advice beforedoing so.Is a parenting plan legally binding?A parenting plan is not a legally enforceableagreement. It is only a record of what hasbeen agreed to and is different to a parentingorder made by a court. However, a parentingorder made by the court may take intoaccount a parenting plan that you havepreviously agreed to. If you want to make yourparenting plan legally enforceable, you mustapply to the Family Court for consent orders.This requires the consent of all parties to theparenting plan. Only an agreement for thelong term care of children can be made into aconsent order.Consent ordersA consent order is a written agreement forlong term dispute resolution that is approvedby a court. It has the same legal force asany court order. A consent order can coverparenting arrangements for children as well asfinancial arrangements such as child support,property and maintenance (between parentswho have separated).If the Family Court approves the consentorders they will have the same legal effect asany other order made by the court. The courtmust be satisfied that the orders are fair and inthe best interests of the child. Consent ordertemplates can be obtained from the FamilyCourt or online at www.familycourt.gov.au.Both sides should seek independent legaladvice before they sign their consent order.

FAMILY LAW AND YOUPARENTING ORDERSAll court orders about children are called‘parenting orders’. Any person concernedwith the care, welfare or developmentof a child can apply for parenting orders.Parenting orders can specify people otherthan parents who are to spend time withand communicate with the child, includinggrandparents and other relatives. While acourt can order that a parent be allowed tospend time with a child, it cannot make aparent do so.The court can put special conditions in anorder. For example, it can say where thehandover of the children must take place orit can make the time spent supervised if itthinks it is necessary.Other orders can be made giving one parentresponsibility for aspects of the care, welfareand development of the child, such asschooling and medical treatment.How does the court decide?When a court is making a parenting order, theFamily Law Act requires it to regard the bestinterests of the child as the most importantconsideration. The Family Law Act says that: both parents are responsible for the careand welfare of their children until thechildren reach 18, and arrangements which involve sharedresponsibilities and cooperation betweenthe parents are in the best interests of thechild.In deciding what is in the best interests of achild, the primary considerations of the FamilyLaw Courts are: the benefit to children of meaningfulrelationships with both parents, and the need to protect children from physicalor psychological harm and from beingsubjected or exposed to abuse, neglect orfamily violence.In applying these two considerations, thecourt must give greater weight to the needto protect the children from physical orpsychological harm and from being subjectedor exposed to abuse, neglect or familyviolence. In addition, it will also consider suchthings as: the views of the child, depending on thematurity and level of understanding of thechild the child’s relationship with each parentand other people, including grandparentsand other relatives the willingness and ability of each parentto facilitate and encourage a close andcontinuing relationship between the childand the other parent the likely effect on the child of changedcircumstances, including separation froma parent or person with whom the childhas been living, including a grandparent orother relatives9

the practical difficulty and expenseof a child spending time with andcommunicating with a parentappointed. This lawyer investigates whatis in the child’s best interests and providesinformation to the court. each parent’s ability (and that of any otherperson) to provide for the child’s needsUnless a court says that it is not in the child’sbest interests, both parents have equalshared parental responsibility. This meansparents must consult each other and reachagreement about major issues such asschooling, health and religion. Equal sharedparental responsibility is not the same as achild spending equal time with both parents.However, where a court order provides forequal shared parental responsibility thenthe court must consider whether the childshould spend equal time with both parents.This depends on whether the court considersthat it is in the child’s best interests andwhether such an arrangement is reasonablypracticable. the maturity, sex, lifestyle and backgroundof the child and of the child’s parents, andany other characteristics of the child thatthe court thinks are relevant the right of an Aboriginal or Torres StraitIslander child to enjoy his or her cultureand the impact a proposed parentingorder may have on that right the attitude of each parent to the child andto the responsibilities of parenthood any family violence involving the child or amember of the child’s family any family violence order that appliesto the child or a member of thechild’s family whether it would be preferable to makethe order that would be least likely to leadto further court applications and hearingsin relation to the child, and any other fact or circumstance that thecourt thinks is relevant.The court will not hear from the child directly,instead it will get information from otherwitnesses about the child’s views. To help itdecide what should be done, the court canask a family consultant to prepare a familyreport. Sometimes, the court will orderthat an Independent Children’s Lawyer be10If equal time is not appropriate in theparticular circumstances, the court must thenconsider whether ‘substantial and significanttime’ is in the child’s best interests. Thisusually means that the time the child spendswith a parent includes weekdays, weekendsand holidays so that they are able to spendtime together doing routine daily activitiesin addition to sporting events, holidays andspecial occasions.In making a parenting order, the behaviourof the parents before and after separationmay be relevant. Because the court deals withevery matter individually, no one can tell youexactly what the court will decide in yourcase. For this reason it is not much help tocompare your case with others you may haveheard about.

FAMILY LAW AND YOUApplying for parenting ordersTo apply to the court for parenting orders,you need to complete an application formand a supporting affidavit and a Noticeof Risk. You will also need a certificateconfirming that you have not been able toresolve your dispute through family disputeresolution, unless an exemption applies.The affidavit is your statement of what hashappened and why you want the court tomake the orders that you are asking for inyour application. The court can provide youwith a fact sheet about affidavits. After youhave completed the application and affidavit,you need to get it witnessed by a lawyeror Justice of the Peace (JP). There is usuallya JP available at the court. There are strictrules about how you serve (officially deliver)documents. See the Federal Circuit Courtwebsite for details.What happens when you apply for aparenting order?Initially, the court will make interim(temporary) orders that will apply until finalorders are made. After interim orders havebeen made, the court will then put the casein the court list to prepare for trial and todetermine if the case can settle.If the matter is not capable of settlement,the court will list the case for a final hearing(called a trial) before a Judge who will decidewhat is best for your children. It can take along time to proceed from interim orders tothe commencement of a trial. If your case isurgent and there are special circumstances,the court may agree to put your case beforeothers on the waiting list.See www.federalcircuitcourt.gov.au for moreinformation about court procedures.What orders can you apply for?A parenting order may deal with one or moreof the following: the allocation of parental responsibility fora child and, if two or more people are toshare parental responsibility for a child, howthey are to consult with one another aboutdecisions concerning the child the person or people with whom a child isto live the time a child is to spend with anotherperson or other persons how the child will communicate with otherpersons child maintenance (for those children notcovered by the Child Support Scheme) the steps to be taken before an applicationmay be made to a court for a change to theorder the process to be used for resolvingdisputes about the terms or operation ofthe order, and any aspect of the care, welfare ordevelopment of the child or any otheraspect of parental responsibility for a child.11

Relocation of childrenEven if there is no court order in place, aparent should get legal advice before movingwith a child to another region or Statewithout the agreement of the other parent. Ifa court considers it is in the best interests ofthe child to remain where they are, the courthas the power to order that a child not beremoved. If a parent has already removed thechild, the court can order that the child bereturned.Complying with orders about childrenCourt orders are not optional. You must takeall reasonable steps to follow an order. Forexample, if there is a court order that yourchild spends time with the other parent, youmust do everything you can to encouragethe child to spend time with the other parent.If you or another party is not following anorder, you should get legal advice about youroptions.Note that the court will consider whetherthe excuse for a contravention is reasonableaccording to the Family Law Act.Depending on the particulars of the case and thetype of contravention, a court has the power to: vary the existing orders order attendance at a post separationparenting program compensate for time lost with a child as aresult of the contravention require the person to enter into a bond order the person to pay all or some of the legalcosts of the other parties order that the person pay compensation forreasonable expenses lost as a result of thecontravention require the person to participate incommunity service order that a fine be paidA court can only penalise someone forbreaching a parenting order if you orthe other party makes a contraventionapplication alleging the other party is notcomplying with the order. If the parentingorder is more than 12 months old, then theperson alleging the contravention mustfirst attempt to resolve the matter throughfamily dispute resolution (unless exemptfor other reasons). If a court finds a personhas breached a parenting order withoutreasonable excuse, it may impose a penalty.12 order imprisonment.

FAMILY LAW AND YOUFamily ConsultantsA court may at any time order the parentsand children to see a family consultant (acourt counsellor). Family consultants arepsychologists or social workers who specialisein child and family issues after separation.Communications with a family consultant arenot confidential and may be reported back tothe court.Family consultants can: help you resolve your dispute tell the court about the issues in dispute write a memo to the court about theirmeeting with you, and make recommendations to the court aboutthe next step in the proceedings.SEPARATIONA couple is considered to be separated whenthey are leading separate lives. There areno formal procedures to show that you areseparated, no forms to fill in and nobodythat you have to notify. If you are claimingCentrelink payments you will need to notifyCentrelink of your separation within 14 days,because this may affect your payments.Regardless of whose name is on the titleto the family home, both members of thecouple are entitled to live there. If there isa dispute, you cannot force your partner toleave without a court order. If the situationis unpleasant you may prefer to leave thehome, but keep in mind the importance ofmaintaining a relationship with your children.The court is generally reluctant to interruptthe children’s usual living arrangements. Ifa long time passes without you seeing thechildren this may affect any application youlater make about who the children should livewith or spend time with. If you find yourself inthis situation, seek legal advice urgently.Period of separationFor a divorce, you must be separated for atleast 12 months. However, it is possible toseparate, have one attempt at reconciliationwhich lasts less than three months, separateagain, and still apply for divorce if the totalperiod of separation adds up to twelvemonths.Separation under one roofFor a divorce, a couple can be separatedwhile living in the same house, but it mustbe shown that the marriage relationship hasirretrievably broken down. You are not usuallyconsidered to have separated if you share theusual activities of marriage such as sleepingtogether, shopping and eating meals together,entertaining friends, going out together withyour children, or sharing bank accounts.Spouses intending to live separately underone roof should make sure that others knowabout it from the beginning of the separation,as the court normally requires evidence froma friend or relative that there was a separation.There must also be good reasons why youremained together in the same house, suchas caring for children or not having enoughmoney to live separately.13

The only ground for divorceis the irretrievable breakdownof the marriage. It does notmatter who was at fault orwhether one spouse doesnot want a divorce. You mustshow the court that you havenot been living as a marriedcouple for at least twelvemonths and that you will notget back together.DIVORCEDivorce is the legal end of a marriage. Theonly ground for divorce is the irretrievablebreakdown of the marriage. It does notmatter who was at fault or whether onespouse does not want a divorce. You mustshow the court that you have not beenliving as a married couple for at least twelvemonths and that you will not get backtogether. The only way to stop a divorce isto show that this has not occurred. A divorcedoes not deal with issues such as who thechildren live with, child support or thedivis

FAMILY LAW AND YOU The Family Law Act is the main law that deals with divorce, disputes about children and property matters. All children are covered by the Family Law Act, no matter where in Australia they live or who their parents are. The courts that can make decisions under the Family Law Act are federal courts called Family Law Courts.

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