5 mm
HANDBOOK
works, but all aspects of separation, including:
• what to do after the breakdown of a marriage or de facto relationship THE
• negotiating with your former partner
FAMILY LAW
• understand the court process and requirments
• successfully achieving a fair property settlement 2nd EDITION Maree Livermore 2nd EDITION
• going to court, with or without your lawyer.
Livermore
The Handbook contains samples of parenting plan provisions, court orders, forms and
affidavits that can be adapted for individual use, and a list of useful contacts and resources.
The Family Law Handbook, 2nd Edition is not only a must-have for those going through a
family law matter, it is also a most valuable reference for workers in the field of family law;
including counsellors, mediators, educators, social workers, public servants, students and
legal practitioners.
1
The family law system
Decisions at separation
If you really have decided to separate, you have four main groups of deci-
sions before you.
Practical arrangements
You need to decide who is going to move, where to, and when; how to
finance the move; and what interim income, expense and debt manage-
ment arrangements you can make, including Centrelink payments. These
matters are discussed in detail in chapter 2.
Parenting arrangements
For couples with children, perhaps the most important task is the design
of workable, cooperative post-separation parenting arrangements that
meet the needs of the children in the new circumstances of the family. See
chapter 6 for detailed information about this.
Property settlement
Initially, all you need to do is set the wheels in motion. It is often better not
to push to settle on property issues too soon after separation. But it is
useful to get some idea of what the law would decide was a fair distribu-
tion of assets in your circumstances, and to plan the process for the smart-
est possible resolution of the issue at the right time. See chapter 7 for a
description of the property settlement process; and seek legal advice.
Behaviour check
Losing your cool at the wrong time can result in the total waste of your
hard-won progress in mediation to date (as you watch your partner
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charge down the street to the solicitor’s office). If it happens in court, your
case before a particular judicial officer might be irretrievably damaged.
The stress of relationship breakdown and conflict over important
matters leads many of us into exhibitions of our least appealing character
traits. Unfortunately, this is a time when you can ill afford to lose control.
Despite reforms to the system, the family law process flourishes on dis-
plays of substance abuse, bad language, ‘hysterical’ behaviour, violence,
and inability to act like ‘a responsible member of society’.
You must ensure that your language and behaviour remain moderate
and proper at all times – and especially in the presence of your former
partner and children. Take care not to denigrate (criticise or tear down)
your former partner in the presence of your children. If you fail to control
your behaviour on any occasion, and you end up in court, you can expect
to find the details of what might have been a momentary lapse mercilessly
detailed in the other party’s statements.
not the same thing as achieving the outcome they originally set out to
obtain. They find instead that winning is more about moving forward into
the future with a sustainable lifestyle, good relationships, good health and
a positive self-image.
If you have ‘won’ in a court process at the expense of your health, your
conscience, the good opinion of your children, or the ability to make
cooperative decisions with the other parent, you may find, in the longer
term, that you have ‘lost’ – and that, in fact, you have lost a great deal.
On the other hand, if you settle your dispute early (or even, by your own
estimation, you ‘lose’ or ‘give in’ at court) you may be able to re-form suf-
ficiently good relationships to return fairly soon to a state of personal
equilibrium, and retain the potential, in parenting matters at least, to
negotiate more satisfactory arrangements later on.
It’s important to get a realistic idea of your prospects from a lawyer at
an early stage. Pursuing small differences over months of haggling may be
a waste of legal fees, and of emotional and relationship resources. Settling
early – and making some concessions – could be your most productive
way out of a process that doesn’t in itself produce too many true winners.
Is it worth it?
Damage to your, and your children’s, emotional state and recovery pros-
pects accrues in every week that your legal dispute goes on, while destruc-
tive communications are exchanged. Many people spend years of their lives
in dispute about property settlements and parenting arrangements. They
lose much of their settlement in legal fees and career impetus; they suffer
from depression and ill-health; their children are sad, tired and disturbed.
Remember that it is open to you, at any point, to choose not to be one
of them. You can close the deal on the best terms available to you right
now – and then get on productively with your new and real life.
2
Marriage, separation and
divorce
The modern law of marriage grew from the ancient concept of the unity of
a man and a woman ‘joined’ under the marriage rite. The relationship
between a man and a woman in this archaic legal fusion – the marital rela-
tionship – influences much of family law in Australia today.
Ownership of property
The law long ago established that men and women can own property sep-
arately after marriage. They can also hold it together if they wish, either as
joint tenants or tenants in common, but co-ownership never arises from
the simple fact of marriage, as it once did. This is in contrast to the concept
of ‘community property’ applying in Europe and some US states.
Nevertheless, in proceedings relating to property the Family Court may
‘make such orders as it considers just and equitable’ in respect of all the
property of the parties, whether owned jointly or separately (Family Law
Act s.79). See chapter 7 for a detailed discussion of property issues.
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De facto relationships
Separation
Despite its similarity to a marriage in daily life, a de facto partnership bears
little relationship to marriage at law. De facto unions are not recognised
under the common law, so the concept of ‘separation’ between de facto
partners is not recognised either. Under the common law, then, there is no
question of 'rights' or 'fairness' at the separation of de facto partners.
Except in matters concerning children, there is no recognition of de
facto relationships under the Family Law Act.
Property settlement
But for many people the reality is that living in a de facto relationship is much
the same as living in a marriage. To counter the common law position, all the
states and the principal territories have enacted legislation to regulate for
fairness in property and maintenance issues at the conclusion of a de facto
relationship (see page 7 for details of the legislation). The Commonwealth is
constrained by the Constitution from developing similar provisions.
These laws differ significantly from one state or territory to another, and
they do not necessarily provide for the different future needs and
resources of the partners. They may, therefore, offer significantly less to a
more dependent party than would the Family Law Act, if it applied. And
because it comes under state jurisdiction, without the accessibility now
established in the federal family law system, litigation in de facto property
matters is relatively expensive and difficult for self-represented litigants.
Parenting issues
All the child-related provisions in the Family Law Act, and everything in this
book about parenting responsibilities, arrangements, issues, plans, orders
and cases, and about the rights, welfare and development of children, apply
equally to children from de facto and marriage relationships.
3
Negotiation and
settlement
Negotiation
Negotiation with legal assistance
A lawyer will always be happy to conduct pre-court negotiations with the
other party on your behalf. If they have a lawyer, you may be better placed
if you also have a lawyer for negotiations (if you can afford it).
Lawyers, however, often do not conduct negotiation with a view to
minimising the adversarial experience of either party. And when you get a
lawyer to negotiate for you, you lose a degree of control over the progress,
the style and, ultimately, the result of the negotiation.
If you feel that your lawyer-assisted negotiations are not going well, tell
the lawyer you’d like to try to manage yourself, pay the bill and collect the
file. It is your right to do this, if you wish, at any time.
Counselling
Relationship counselling
Many couples find that a counsellor can help them towards resolving both
the personal and the practical issues involved in separation.
The counsellor may see the parties together or separately (or sometimes
a bit of both). They may also see children.
Counselling is a more personal experience than mediation. It can take
place over several sessions, without the pressure of impending litigation.
You have more freedom to discuss emotional and behavioural issues. This
may be particularly important if the prospect of reconciliation or adjust-
ment to new life circumstances is a major issue for at least one party.
Joint counselling is not likely to be particularly successful after a
dispute becomes entrenched. See if you can get it started as soon as the
prospect of ongoing difficulties in the relationship arises.
Often, one party is initially unwilling to engage in counselling (or any
other form of dispute resolution). If your partner is unwilling but you
wish to try it, you may need to explain to your partner that court action
will be the inevitable consequence of failure to resolve matters privately,
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and that the first requirement of the court will be for the parties to attend
family dispute resolution proceedings in any case. (You could then
perhaps make an appointment with the counsellor and advise your
partner of the time, place and date. Attend the appointment yourself. If
your partner doesn’t show up you will have the opportunity for a good
talk.)
Personal counselling
Sadness, anger and other personal issues may seem unmanageable around
the time of separation. Many people now see private counselling as an
opportunity for support through this difficult time. Sometimes mediators
recommend counselling to help people to stabilise their feelings in prepa-
ration for effective negotiation and mediation (see Negotiation idea 3: Are
you ready? on page 65).
Counselling under the Family Law Act
The Family Law Act refers to ‘family counselling’ and ‘family counsel-
lors’, and provides for an accreditation scheme. The clients of accredited
family counsellors receive the benefit of important confidentiality protec-
tions (see (see pages 87 and 199).
Finding a counsellor
Relationship and personal counselling may be available free, or with fees
on a sliding scale based on income, from many private or community
service organisations, charities and churches. Psychologists also provide
relationship and personal counselling services. It is a good idea to look for
a counsellor who is an accredited family counsellor under the Act.
The public provision of court-based counselling services is being
wound back. A court may, however, designate court staff to act as an
accredited family counsellor (s.38BD).
Check with your local Family Court registry, a Legal Aid office or the
Yellow Pages for information.
7
Property
Settling privately
People do not have to settle their financial affairs at the end of a marriage
in any particular way. They are free to make their own arrangements.
Contrary to popular belief, there is no legal requirement to lodge any form
with the court or obtain court approval for a private property settlement.
Parties can agree to split their assets 50–50, 0–100, 60–40, or even 0–0 (if
they decide to give it all to someone else), then take action to give effect to
their agreement.
Whether this is the best course for you is a question that can only be
answered with the benefit of legal advice. There is a major advantage in
having court orders (including consent orders) – they provide statutory
protection from future property claims.
There are significant financial incentives, however, for private negotia-
tion and settlement. The cost of a fully litigated property case, complete
family law19 Page 318 Thursday, October 5, 2006 5:04 PM
Property 319
Step 2 requires:
• assessment of each party’s financial contributions to the family’s assets
• assessment of non-financial contributions (such as homemaking and
caring for children)
• some consideration of ‘negative contributions’, such as violence,
gambling and substance abuse.
At this stage, a preliminary percentage or dollar-value allocation of the
property may be made – on the basis of the contributions assessment only.
Step 3 requires consideration of the parties’ future needs and resources
– factors such as their age and health, their ability to support themselves,
and their other commitments. These factors are used to adjust the alloca-
tion reached on the basis of contributions alone at Step 2.
In Step 4, the results of Steps 1 to 3, and the consequences of the various
orders that might potentially be made, are checked for overall fairness in
the light of all the circumstances of the case.
Property 375
Property 377
Total $ $480,250 $
Liabilities
Item Ownership Husband’s value Wife’s value Other’s value
Mortgage - 12 Harp St joint 100.000
Visa joint 12,000
Car loan (Explorer) joint 12,000
Total $ $124,000 $
Net $ $356,250 $
1
family law19 Page 378 Thursday, October 5, 2006 5:04 PM
Superannuation
Item Ownership Husband’s value Wife’s value Other’s value
Total $ $ $
Financial Resources
Item Ownership Husband’s value Wife’s value Other’s value
Total $ $ $
Reasons Set out in a brief but concise form having regard to s.79(4)(a), (b) and (c) the matters
relied upon to support the entitlement specified.
2
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Property 379
Husband
Wife The wife relies upon the matters described in Part C above to justify the adjustment to the
contribution-based entitlement claimed.
3
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Other party
Husband
Wife To the wife's knowledge, no third-party claim exists in respect of property owned by her or in
her possession, except the liabilities set out in Part A above. These are proposed to be dealt with
as set out at Part F below.
4
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Contents
Foreword xii
Introduction xiii
1 The family law system 1
Decisions at separation 2
Practical arrangements • Parenting arrangements • Property
settlement • Dispute resolution strategies
The big picture 2
Keeping sane • Behaviour check • Children are not property
• ‘Winning’ and ‘losing’
Finding the relevant law 5
The Family Law Act • The Federal Magistrates Court Act
• Legislation about court rules and procedure • Child support
legislation • Legislation about family violence • De facto
property legislation • Case law
Getting legal advice 9
Sources of free legal advice • Choosing a lawyer to advise
and assist
Court action 12
From court action to dispute resolution: A work in progress
• Advantages of coming to agreement without court action
• Moving to court action • Which court? • How long will it
take? • How much will it cost? • Representing yourself in court
2 Marriage, separation and divorce 26
The law of marriage 26
The obligation to support your spouse • Ownership of
property • Advantages of marriage at relationship breakdown
• Marriages made overseas • Marriage under Aboriginal
customary law • The legitimacy of children
Separation for married couples 28
‘Irretrievable breakdown of the marriage’ • Separation under
one roof • Should I stay or should I go? • Financial and
property matters • Arrangements for children • Orders for
personal protection
FLHBprelims4 Page vi Thursday, October 5, 2006 5:33 PM
Divorce 44
Eligibility for divorce • Grounds for divorce • Which court?
• Opposing an application • Advantages of joint applications
• Timing • Disputes in relation to children
Sample ‘Separation under one roof’ affidavits 50
Affidavit 1 • Affidavit 2
Contents vii
Contents ix
7 Property 317
Settling privately 317
The court’s four-step process 318
Applying the four steps to out-of-court settlements
Step 1: Identify and value assets and liabilities 321
Identifying assets and liabilities • Valuing assets and liabilities
Step 2: Assessing the parties’ contributions 328
Making the assessment • Financial contributions
• Non-financial contributions • Contributions as a homemaker
and parent • Negative contributions • Balancing financial and
non-financial contributions
Step 3: The section 75(2) needs and resources
factors 335
The section 75(2) factors • How the factors are assessed
Step 4: Testing for justice and equity overall 342
Pre-settlement property issues 342
Pre-action dispute resolution requirements • Disclosure
requirements • Urgent spouse maintenance orders • Exclusive
occupation orders • Injunctions preventing dealings with
property • Interim property orders
Final property distribution 347
Private property settlements • Applying for property orders
• Responding to an application for property orders • Variation
of orders • Enforcement of property (and maintenance) orders
Specialised family law property issues 355
Superannuation • Third party interests in property settlement
• Bankruptcy and property settlement
Spouse maintenance 363
Ability to pay • Applying for spouse maintenance • Varying
spouse maintenance orders • Spouse maintenance orders and
final property orders • Lump sum maintenance orders • The
effect of remarriage • Enforcement of a maintenance order
Order drafting and sample orders 369
Using the sample orders • Samples for consent orders • Samples
for use in private agreements • Injunctions • Sample real estate
orders • Sample orders: Other assets • Sample liability and
indemnity provisions • Sample catch-all provisions • Sample
orders: Injunction for exclusive occupation • Sample orders:
Injunction for personal protection • Sample orders for spouse
maintenance • The conciliation conference document • Sample
initial listing of assets and liabilities in a property pool
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Contents xi