FOR OUR FAMILY LAW CLIENTS

Transcription

1 MARSHALLS & DENT Lawyers Level 13, 459 Little Collins St Melbourne Internet: FOR OUR FAMILY LAW CLIENTS INTRODUCTION The breakdown of a marriage or a defacto relationship is an unsettled and distressing time. There are many issues - emotional, financial and legal - with which you are forced to grapple. Obtaining constructive legal advice and support early on can help you to cope with issues of child residence, contact, division of property, spousal maintenance and child support. IMPORTANT NOTE This document has been prepared to provide you with some basic guidelines as to how the Family Law Act and the Family Court operates. It is by way of general comment only. Every case is different. These notes should therefore not be used to determine how you wish to handle your own Family Law difficulties, or to advise others. You should seek specific advice in relation to your individual case. For defacto couples, child support and child welfare issues are dealt with in the same way as with married couples. However, financial issues are very different and are generally subject to more complex legal rules. Those aspects are not the subject of these notes. SEPARATION Separation takes place when a married or a defacto couple begin to lead separate lives -

2 domestically, socially, sexually and financially. This usually takes place when one or the other party moves out of the family home, but can also take place in the same house. There is no such thing as a formal legal separation. It is simply a matter of the parties deciding to be apart. In Family Law, there is no such thing as fault. The only relevant issue is whether the relationship is over or not. Upon separation, many matters need to be considered, including the following: (a) arrangements for the care of children; (b) protecting joint assets; (c) responsibility for joint liabilities; (d) a fair division of the assets and liabilities; (e) interim financial support; (f) the making of a new Will. DIVORCE There is only one ground for divorce in Australia: that is, irretrievable breakdown of marriage, which is established by 12 months separation. At the expiry of 12 months from the date of separation, either party, or the parties jointly, can apply to the Family Court for a Divorce. The hearing is usually about 3 months from the day you lodge your application at the Court. On the day that the Divorce is heard, the Judge or Registrar will grant a Decree Nisi of Dissolution of Marriage. One month later, the Decree becomes absolute (or final). You cannot remarry until after that time has passed. There is a Government imposed filing fee of $ for a Divorce in the Family Court. If you file the application in the Federal Magistrates Court, the fee is $ If you are a pensioner, or otherwise cannot afford the fee, you can apply to have it waived. The person applying pays that fee, and any legal costs. Normally the other party pays little or no costs for the Divorce. In most cases, you should be able to apply for a Divorce yourself. The Family Court has produced a kit to assist you in doing so. Ask us about it. Alternatively, it can be obtained from the Family Court Website. See below for information available on the Internet.

3 FINANCIAL AND CHILDRENS ISSUES DO NOT HAVE TO WAIT FOR A DIVORCE Arrangements in relation to children, their financial support, and financial separation are quite separate and distinct from a divorce. Property and spousal maintenance proceedings must in most cases be commenced within 12 months of the divorce being granted. Except for this proviso, Family Court proceedings in relation to property, financial support and children can be resolved or pursued through the Family Court at any time from the date of separation onwards. Court action is not always necessary. Many parties resolve their differences quickly and without court intervention. CHILDREN The rights of children are expressly set out in the Family Law Act, being : - * To know and be cared for by both parents; and * To have contact on a regular basis with both parents and with other people significant in their lives. These rights apply unless it would be contrary to the child's best interests. Parenting Orders that can be made by the Family Court include:- * Residence Defining with whom a child is to live. * Contact Defining the time spent by a child with the other parent. * Maintenance Financial support of a child. * Specific Issues This is any other order about the short or long term care, welfare and development of a child other than residence, contact or maintenance. Each of the parents of a child has parental responsibility for that child. These responsibilities cover issues such as education, religion, upbringing and health needs. Those rights remain in place unless specifically excluded by a court order. In deciding any issues in relation to children, the welfare of the child is the paramount consideration of the Court. In deciding with which parent a child should reside, the Court will take into account: * the nature of the relationship of the child with each of his or her parents;

4 * the effect on the child of the separation from either parent or other person; * the desirability of an effect of any change in the existing arrangements for the care of the child; * the attitudes to the child, and to the responsibilities and duties of parenthood, demonstrated by each parent; * the capacity of each parent to provide adequately for the needs of the child, including emotional and intellectual needs of that child; * the need to protect the child from abuse, ill treatment or exposure or subjection to behaviour which psychologically harms the child; or any other fact or circumstance (including the education and upbringing of the child) that, in the opinion of the Court, the welfare of the child requires to be taken into account. Marital conduct (eg adultery) is usually not relevant in deciding where a child should live, unless it impacts on the children. Nor are their wishes necessarily conclusive. It is common for children to tell each parent they want to live with them. CONTACT Contact the term describing when the non-resident parent spends time with his or her children. There are no hard or fast rules as to contact and it will be arranged according to the convenience of the particular family. Contact every second weekend plus part of the school holidays is one common formula. Contact is rarely denied and attempts to frustrate contact for no apparent reason is strongly frowned upon by the Court. The Court is not concerned about the parents wishes, being interested in what is best for the children. Arrangements should be flexible where possible, to take into account the children s changing needs and activities. For this reason, contact orders cannot be permanent, and can be varied when circumstances change. Anticipate when you might have problems. Try to organise holidays and special occasions well before the event. Be sensible about providing information such as school and medical reports to the other parent. Remember that the children inevitably love both of their parents, and often wish that you were still living together.

5 COUNSELLING The Family Court provides limited counselling facilities (and similar facilities are available elsewhere) to assist parties in resolving issues of residence, contact and specific issues. Such counselling is often referred to as mediation counselling. There are two types of counselling:- (a) Privileged Counselling - As it's name implies, it is totally confidential. Whatever is said and done within the context of this counselling process cannot be repeated in the Family Court. There is one major exception, and that generally relates to matters of child abuse, which must be reported. If your case involves such issues, be sure to discuss this with us as soon as possible; (b) Reportable Counselling - The Court sometimes orders a report to be prepared to assist the Court in making a determination as to what is in the best interests of a child. Court resources are limited, and in appropriate cases, we will recommend engaging a private counsellor to undertake a report. You should be aware that counselling for Family Court purposes is focussed on assisting separating parents to cope with how to deal with the children and each other, rather than with reconciliation issues. In practice, counselling is highly successful in focussing the parties on the issues, and in reaching a compromise regarding matters in dispute. Counselling is often used to ascertain what the children s wishes really are, in a neutral context. Counselling is available on request from the Court, without the need for formal court orders. If a party refuses to attend, a court order compelling their attendance is possible. In practice, the Family Court insists on the parties attending counselling prior to dealing with child welfare issues. CHILD SUPPORT Child support for children of couples who separated after 1 October 1989 or children born after that date is subject to the provisions of the Child Support legislation. This provides a set formula for calculation of child support and for the collection of child support. The formula basically relies upon the taxable income of the non-resident parent. If you are able to provide details of the non-resident parent's income, we can provide you with an estimation of what

6 child support will be payable. There can be a delay of some months before child support is received. Do not delay in making the required application. If for some reason the Child Support Assessment is not appropriate, it is possible to apply to the Family Court for a "departure order" or variation of that assessment. Normally, a review procedure has to be followed first. This is undertaken without lawyers, and through the Agency. Private school fees are not covered by the normal assessment procedure. It is common for parties to come to a private arrangement regarding child support, including school fees, and to have that agreement documented. There are severe limits to what can be agreed to if the recipient of child support receives a pension. Broadly, you cannot pay less than what would otherwise be assessed by the Agency. Child support is assessed yearly and is normally paid monthly. It is still paid during times when the children are on holidays with the paying parent. There is no relation between contact and child support. If you do not see the children, child support must still be paid. Similarly, failure to pay child support does not justify denying contact. Payments cease once the child turns 18, unless they are still at school, in which case it ceases at the end of that year. It is possible to obtain maintenance for adult children if they are undertaking tertiary studies, or they are disabled. PROPERTY SETTLEMENT The Family Court has the power to make those orders it considers fit altering interests of either the husband or the wife in any property owned by both or either of them including future entitlements such as superannuation and long service leave. A property that is owned by one person only, or by a family trust or company, will still be taken into account in Family Court proceedings and must be disclosed. In deciding what property orders should be made, the Court will consider: (a) the financial contribution made directly or indirectly by either party; (b) any contribution made by them as a homemaker or parent; (c) the effect of any order that is to be made upon the earning capacity of either party;

7 (d) all the matters to be considered on the question of maintenance of the other party insofar as they may be relevant to the alteration of the property interests. One important consideration is the need of one party to provide accommodation for dependant children. All assets of both parties, no matter when or how they were obtained must be disclosed. As to how they are apportioned between you will be decided by the Court. Commonly, recent inheritances will be given back to the party whose family was responsible for the bequest in the first place. We will guide you as to how your particular case is likely to be approached by the Court. Remember that every case is different. SPOUSAL MAINTENANCE One spouse is liable to maintain the other only to the extent that they are reasonably able to do so if the other party is unable to support himself or herself adequately because: (a) They have the care of a child of the marriage under the age of 18 years; or (b) Of their age; or (c) Of their mental or physical incapacity for employment; or (d) For any other adequate reason. When deciding whether a spouse is entitled to maintenance and if so how much, the Court will consider many relevant matters, including both parties' living situation and financial circumstances. Broadly, the applicant must first demonstrate a need for maintenance. Then the capacity for the other party to pay is considered. Maintenance ceases on remarriage or death, or if the payer dies. Maintenance orders can be varied when either the payer s or the recipient s circumstances change. When looking at the applicant s financial circumstances, the Court disregards pension payments. They are not taken into account. Government policy is to require maintenance payments in place of pension payments wherever possible. INJUNCTIONS In some situations it is necessary to seek an injunction from the Family Court stopping one person from selling or otherwise disposing of assets of the marriage prior to a final property settlement being reached. It is important to consider whether this is an appropriate step in your particular situation as soon as possible after separation to avoid the dissipation of assets.

8 Apart from injunctions which restrain a party from performing an action or requiring a party to perform a specific action, "non harassment" or non molestation orders against a party to a marriage are frequently made. Other applications brought under this heading include those applications requiring a party to surrender a passport if there is a concern about one of the parties taking a child outside the Commonwealth of Australia. INTERVENTION ORDERS - PERSONAL PROTECTION In a situation where one party is the subject of violence or threatened violence, intervention orders can also be quickly obtained in the Magistrates' Court restraining the other party from coming near them. This procedure is not made under the Family Law Act but under State law, being the Victorian Crimes (Domestic Violence) Act. It is a very effective procedure, and is particularly attractive because of the low cost involved. Generally, a Clerk of the Magistrates Court will assist you in making the application. MEDIATION For some couples mediation may be the best way to resolve financial matters. Mediation is a system set up by the Family Court whereby an independent mediator assists the parties to reach a mutually acceptable compromise. Both parties should have legal advice before undertaking mediation. The process is not for everyone. We will guide you further on this course of action if your case is suitable. WILLS Your life will obviously be very different after you and your spouse separate. You should make a new Will to reflect your changed circumstances. If you are divorced in Victoria, any bequest to your former spouse under a Will is void. You should be aware however, that if your home is registered in joint names as joint tenants (as distinct from tenants in common), changing your Will does not affect the situation. On your death, the home automatically passes over to your spouse. If you have applied for property orders in the Family Court, your estate can continue that action after your death. Whilst you can nominate who you want to look after your children on your death, you should be aware that the nomination is not binding on the Family Court. In

9 a contest about the children, the Court always has the final say on what is in the children s best interests. CHANGING NAMES A child s surname cannot be changed unilaterally. If this happens, an application can be made to the Court to have the position reversed. The Court will only allow a change of name if it is in the child s best interests. One example might be when there is no contact with the father. A woman is free to revert to her maiden name at any time. Her birth certificate can be produced as proof of that identity. PASSPORTS If you are concerned that your spouse may leave the country with the children, there are procedures to prevent this from happening. There is a watch list maintained by the Federal Police. Court orders can also be obtained impounding passports. If there are no current passports, both parents must consent to one being obtained or renewed. It is a serious offence to remove children from Australia without permission of both parents or a court order. In most circumstances, the offending party will be required to return the children to Australia. COURT PROCEEDINGS CONFIDENTIAL There are strong penalties for publishing Family Court proceedings. Please be careful in discussing your matter publicly, and do not show court documents to anyone other than witnesses in your case. Children should not be shown court documents. It is not fair on them to be involved in the dispute. If their views are relevant, this will usually be gleaned with the assistance of a court counsellor.

10 FAMILY COURT PROCEDURES (a) Affidavits The Family Court receives evidence in the form of an affidavit. Affidavits are filed with the Court and contain the facts and/or evidence upon which the parties rely. They are also provided to the other party. Each party has a chance to answer the documents filed by the other. It will often be necessary throughout the course of your matter for us to spend time with you not only preparing your own documents, but also answering that of the other side. It will be cost saving to you if you can type your own version of events from which we can then prepare your documents. In the early stages, affidavits are generally not needed, except for financial matters. In those cases, a financial statement known as a Form 17 must be completed and lodged at the court by both parties. (b) Witnesses Witnesses are generally not called to give evidence at a preliminary hearing. In most cases, witnesses will be used in a final, defended hearing. It is important however to file affidavits sworn by the witnesses before calling them. To this end it is important to have witnesses who will cooperate and swear an affidavit if necessary. Witnesses must be aware that they may have to attend court to be cross-examined about the contents of the affidavit. We generally make contact with witnesses you suggest and ask them to prepare a statement concerning relevant issues. (c) Discovery of Documents Parties often find there are documents held by the other party which are relevant to their case, and which the other party may attempt to withhold. The Family Law Act makes provision for documentation to be revealed to both parties by the procedure known as discovery and inspection. Initially, this process is undertaken informally, to avoid legal costs. Formal orders for discovery are only made available with the leave of the Court in the early stages, or after the Conciliation Conference has taken place. The concept in the Family Court is to encourage full and frank disclosure of all relevant facts. Any breach of this approach can result in sanctions by the Court such as having to pay the other party s costs. In extreme cases, the guilty party may end up with much less in a property settlement, as the Court may decide there are hidden resources

11 which that party can keep instead. THE COURT PROCESS Many Family Law disputes are able to be resolved by way of negotiation between solicitors. Should this not be possible in your case, the next step is to issue proceedings in the Family Court asking for the Court to decide the matters in dispute. Once court action is opted for, an application known as a Form 3 is lodged in the Family Court, setting out what you seek from the Court. The process through which this application flows through the court involves three major stages. The first step is usually a Case Conference. The second is a Conciliation Conference for financial matters and Counselling for child welfare matters. The third is the Final Hearing. The first two stages are designed to assist the parties to resolve their differences without judicial intervention. Statistically, over 75% of all cases resolve by the end of the second stage. There are also specific applications for interim and urgent matters requiring immediate attention. They are filed on what is known as a Form 8, and require affidavits to be prepared. These applications invariably involve more detailed work and actual court hearings. We will guide you in relation to your own specific matter and what that may involve. The first two stages generally take up to 6 months to complete from when the first application is filed. The third stage may take up to another 18 months to be reached. Documents are then given to the other party (called serving the documents ) to give him or her an opportunity to respond to them. Both parties must attend the Case Conference at the Family Court with their solicitors. Any settlement options are further explored at that time. Should the matter be unable to be fully resolved at that time, procedural orders will be made as to the filing of further documents, including any valuations of property etc. A date will also be allocated for the Conciliation Conference and counselling if child welfare issues require determination. A Conciliation Conference is a compulsory settlement conference that takes place at the Family Court. It is a without prejudice conference, and is attended by both parties and their

12 legal representatives. It takes place before a Registrar of the Court, who has some, but not all, of the powers of a Judge. Whilst held in the court building, it is not conducted in court, but in a Registrar s conference room. At that conference, both parties' solicitors put their point of view as to what their client is entitled. The Registrar will read the documents prepared by both sides in support of their case and form a view as to what a fair and proper settlement. He or she will then encourage both parties to reach that settlement. No one can be compelled to settle any matter at the Conciliation Conference, but it is sensible to seriously consider the recommendations made to try to resolve the matter. If the dispute cannot be resolved at the Conciliation Conference, the next step is the final hearing or trial, which will hopefully take place within the next 6 to 12 months and is an expensive process. If the issue in dispute relates to children rather than property, a Conciliation Conference will not take place. Generally, counselling will be organised at the Family Court to assist the parties in resolving those issues. Should those issues be unable to be resolved, the matter will then proceed to a final hearing. The Family Court is implementing various changes to the court process during the latter part of 2001 and early Some of the above procedures may be different. We will advise of any changes as and when we become aware of them and as they impact on your case. APPEARANCES AT COURT Generally, your Family Law solicitor will appear for you at the Family Court save for at the final hearing where a barrister will appear for you with the assistance of a solicitor to advise as required. You will be required to attend court on each occasion your matter is listed for a hearing. DEFACTO COUPLES All children are subject to the Family Law Act, including children of defacto or other relationships. Hence, the principles set out above in relation to residence, contact and specific issues and child support will apply equally to defacto couples.

13 With financial issues and property settlements, the principles that are applied are somewhat different. In the absence of agreement, disputes will be determined in the County or Supreme Courts rather than the Family Court. COSTS You will be charged at an hourly rate, depending on the particular solicitor allocated to your matter. Obviously, more experienced practitioners are appointed to more complex matters and the hourly rate charged will reflect this. You need to be aware that you will be charged for all attendances on your matter, including phone calls, reading correspondence, preparing documents, and so on. We normally render accounts monthly, and they must be paid promptly, unless prior arrangements are made. If accounts are not paid, it is an indication to us that you no longer require our help, or that you have lost faith in us. If there are any queries regarding the account, do not hesitate to discuss it with us. There is no charge for such queries. You are entitled to clarify such matters. Once retained, we will send you a retainer costs agreement, confirming the basis of our costs and other charges. Because of the experience of our operators, we do not charge in accordance with the Family Law Scale. That scale is set out in a pamphlet prepared by the Family Court attached to these notes. Each party pays their own legal costs. It is rare for one party to have to pay the other party s costs. This may happen if court orders are breached, or if there has been dishonest or devious behaviour in for example, not disclosing assets. It is Marshalls & Dent's firm policy not to further inflame an already difficult situation and to initiate settlement discussions as promptly as possible to minimise the cost and trauma to you. We are also of the view that by providing you with these notes and other information from time to time, your time in instructing us will be kept to a minimum, thereby enabling us to provide you with cost effective, quality legal advice.

14 COSTS IMPOSED BY THE COURT The Court has certain filing fees which are payable for various applications. For example, a Divorce attracts a fee of $ in the Family Court and $ in the Federal Magistrates Court. A Form 3 Application has a fee of $158.00, as does a Form 3A Response to that application. If you receive a pension or otherwise cannot pay the filing fee, a waiver is possible. We will advise you in this regard at the relevant time. COMMUNICATING WITH YOUR LAWYER As our Family Law solicitors spend a considerable amount of time at Court or in conference with clients, we ensure that our personal assistants have a close and detailed understanding of your matter. This means that often telephone queries can be dealt with by the particular personal assistant involved and we encourage you to use that facility to ensure that your questions are answered promptly. Ideally, whenever you ring and your lawyer is not available, you should leave a detailed message. Always leave your phone number as well. Even though we have your details, time will be saved by the fact that our office procedure involves your message and phone number being ed internally to the solicitor handling your matter. A speedy reply is more likely if you follow this procedure. Alternatively, send us a letter with your queries, by post, fax or Internet , the latter being our preferred choice. When coming to a conference with us, it is always a good idea to bring a trusted friend. That way, anything we discuss with you can be further considered and reinforced afterwards with that person. Try to avoid bringing children to interviews. Apart from the fact that they are distracting, they take in more than you might think. It is also not fair on them to be involved in their parents dispute. INFORMATION ON THE INTERNET The Firm website is at: The Family Law section of that site has these notes, as well as articles and commentary on

15 Family Law Practice. Have a look at the frequently asked questions section. The site links to Peter Szabo s Family Court Practice Manual Updates site which has extensive information on Family Law as well. That site is at: There are further links to other relevant sites, in particular the Family Court and the Child Support Agency sites. Both of these sites have a wealth of information, including court forms and kits in PDF format for downloading. The forms are interactive, meaning that you can type your details into the relevant form and print it out for your own use. FAMILY COURT PAMPHLETS The Family Court prepared pamphlets entitled Separation and Divorce, and Legal Costs, as published on their Internet site, are attached to these notes. OUR PEOPLE Marshalls & Dent has an outstanding team of Family Lawyers available to provide prompt, practical and friendly advice to help you achieve the best possible outcome to your Family Law problems. JOHN McBRIDE is a Family Law Partner of the firm. John has served as Deputy Chairman of the Family Law Section of the Law Institute of Victoria and as a member of the Family Law Executive of the Law Institute of Victoria. John has over 25 years experience in advising clients in a range of complex Family Law and Defacto Law situations. He has particular expertise in complex financial matters, including advising on intricate financial structures and superannuation implications. He is also a trained mediator and has been involved in a number of leading Family Law cases. PETER SZABO joined Marshalls & Dent in March 1999 as a consultant, and became a partner in December Admitted to practice in the Supreme Court of Victoria and the High Court of Australia since 1975, he is an Accredited Family Law specialist with particular expertise in handling financial issues and taxation/estate planning within

16 property settlements. Peter is also experienced in international aspects of Family Law, as well as child related issues. His extensive experience as a family law practitioner including being the key legal representative in Ascot Investments Pty Ltd v Harper, a High Court decision in 1980 which was the definitive case on third party rights in the Family Court. The case required consideration of complex financial, corporate and trust issues. Peter was the founding Chairman of the Advisory Committee to the Accreditation Board for Family Law Specialists in Victoria and was at the forefront in establishing legal specialisation in family law. Peter lectures to the Law Institute of Victoria, the Leo Cussen Institute and to the legal and accounting professions nationally, in all aspects of family law. He has written several family law books including the "Family Court Practice Manual", "Family Law Financial Settlements for Accountants" and is a regular contributor of articles and papers to the media. Peter has an in depth knowledge of information technology and proven experience as a computer consultant to the Law Institute of Victoria. He is also a consultant and lecturer on computer and office automation. MARGARET NEAL is a Senior Associate with the firm and has been practising in Family Law for over 13 years. She practices in all areas of Family Law, dealing with both children's and financial issues. Margaret is also a trained mediator. CLAIRE JACKMAN is a Senior Associate who has been practising in Family Law for over 20 years. She has practised in all areas of Family Law including Defacto property matters and has been involved in a number of interstate cases involving children and extensive property matters. Claire is also a trained mediator. JENNIFER MOONEY is a Senior Associate with the firm and has over 14 years experience in all aspects of Family Law. Jenni has extensive experience in both children's welfare (residence/contact) and property matters. She recently assisted in the preparation and presentation of training material to supervised contact centre workers. She has acted as a Deputy Registrar of the Family Court and enjoys a high profile in the area of Family Law.

17 MARK FINN is a prominent Family lawyer of over 14 years experience and a Senior Associate with the firm. Mark specialises in child representative work, encompassing all issues relating to children in Family Court proceedings and has worked extensively in all areas of Family Law, appearing regularly in the Family Court. In addition Mark recently assisted in preparing a course to train professional salaried supervisors who will be supervising contact in Contact Centres throughout Australia and has been an instructor to other Family Law practitioners when asked to act as child representative in the Family Court. Mark has received private referrals from the legal profession to act as a child representative where aid has not been available. Mark Finn is a panel member for the separate representation of children through Victoria Legal Aid. JAN SLATTERY has been practising in Family Law for over 20 years, and spent 10 years as a Registrar of the Family Court at Melbourne, Hobart and Newcastle. Jan has a Masters Degree in evidence and sat as a part-time member of the Small Claims and Residential Tenancies Tribunal for 8 years. Jan is expert in all areas of Family Law, with a particular interest in issues relating to domestic violence and child abuse. MARGARET LEECH complements her Family Law expertise by also practising in the area of Property Law. Margaret is also a qualified social worker which gives her an excellent understanding of the human and family issues associated with the practice of Family Law. WENDY GADDIE is a Senior Associate, being admitted to practice in April 1998 after having completed a Bachelor of Arts (with a Major in Psychology) and a Bachelor of Laws at Monash University. Wendy has practised exclusively in the area of Family Law, dealing with both financial and children welfare matters. She appreciates and is considerate of the emotional issues involved in Family Law. Wendy is a member of the Family Law Sections of the both the Law Institute of Victoria and the Law Council of Australia. She has served as an associate member on the Family Law Property and Maintenance Committee of the Law Institute and is currently a member of the Children and Youth Issues Committee. Wendy is also a trained Mediator.

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