Family Law Handbook Example

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Your Practical Guide to Australian Family Law

THE

The Family Law Handbook, 2nd Edition is a practical guide for people involved in or thinking about separation or divorce. Written in plain English, it explains the workings of the Australian system of family law, including recent major changes to the law affecting family relationships. The Handbook sets out choices and practical issues and tasks that face a separating couple. The Fanily Law Handbook is invaluable in that it discusses not only how the family court works, but all aspects of separation, including: • what to do after the breakdown of a marriage or de facto relationship • negotiating with your former partner • understand the court process and requirments • understanding the mandatory dispute resolution processes • making the best possible arrangements for your children • successfully achieving a fair property settlement • going to court, with or without your lawyer.

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

FAMILY LAW

HANDBOOK Maree Livermore

2nd EDITION

Livermore

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.

© 2009 Thomson Reuters (Professional) Australia Limited ABN 64 058 914 668

For further information visit: www.thomsonreuters.com.au Proudly Printed in Australia

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1 The family law system Leaving a relationship is not a moment but a process. There are stages along the way, and different aspects of wellbeing – emotional, physical, financial, children’s – to monitor and manage. There may be steps forwards and steps backwards, and different routes to choose between. But, sooner or later, most people reach a point at which they can stand back and see that their personal life and financial affairs are effectively disengaged from those of their former partner, and that their parenting arrangements have settled into a new pattern. Only then can it be said that the process of separation is complete. The most important thing at the start is to understand the landscape in which this journey from separation to separateness takes place. Read the first few chapters of this book. Get some legal advice. Then take some time to think. The decisions you make at the beginning may greatly affect the difficulty and duration of your journey. You need to plan the most effective and least costly way to proceed.

If you are not yet separated (in your mind) … If you have not yet truly decided in your mind to separate from your partner, this is your only task for the moment. Don’t sit down to calculate possible property settlement results if your relationship still hangs in the balance. You owe it to yourself (and maybe also to your children) to take whatever time and energy are required to work out the value of the entire relationship to you in personal terms – without the confusion of financial ramifications. The personal decision is hard enough in any case. So don’t put the cart before the horse. If you are not settled in your own mind about whether to continue in a personal relationship with someone else, do sort this out first. Talk with your partner. See a counsellor, together or separately. (For details about how to find a counsellor, see page 56.)

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Decisions at separation If you really have decided to separate, you have four main groups of decisions 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 management 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 distribution of assets in your circumstances, and to plan the process for the smartest possible resolution of the issue at the right time. See chapter 7 for a description of the property settlement process; and seek legal advice.

Dispute resolution strategies You are no longer ‘of one mind’ with your former partner, and yet now many joint decisions are required to achieve separateness with minimum damage to each other and to the children. How are you going to manage this? You know yourself, your partner and your conflict resolution capacity well. See chapter 3 for detailed discussion of various dispute resolution strategies. Decide an approach with your former partner if you can.

The big picture Keeping sane The process of resolving parenting, property and financial conflict at the end of a relationship is almost inevitably a very stressful experience –

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whether you achieve the resolution by private negotiation, mediation or litigation. There is, first, the discomfort of (perhaps public) discussion of highly sensitive personal issues, and the difficulty of appearing to address those issues unemotionally. Second, parties on both sides are often still trying to come to terms with major and grievously unhappy changes in their life circumstances. They may not be in the best possible shape for dealing with a dispute. If you become over-stressed you are in danger, at the very least, of making poor decisions in settlement negotiations. So it’s important to plan seriously to take care of yourself. You will need a regular exercise regime, and someone outside the process – a professional or a friend – to talk to about what’s happening. You need to try to maintain a life outside your family law dispute. Eating, thinking and breathing your dispute will lead to poor decisions and poor outcomes.

The trend away from litigation and towards dispute resolution There are many different strategies available to separating couples seeking settlement of their property, parenting and finance issues. These include private negotiation (face-to-face, by telephone, by correspondence); mediation (face-to-face, by telephone, in ‘shuttle’ mode); joint counselling; negotiation assisted by lawyers; arbitration; and legal action (with self-representation, or legally-aided or privately funded representation). All these options are open to some people. The more expensive ones are not open to many. But decades of experience in the family law system have convinced community service workers, counsellors, the courts themselves and even many lawyers that litigation is not the most effective way – for anyone – to resolve a dispute about property, money or, especially, children. Australian society is changing. More people are agreeing to work privately together to resolve their disputes than ever before, and the trend is confirmed and encouraged by government policy. Major changes to the family law system in 2006 entrenched the requirement for parties to make a genuine attempt to resolve their disputes without a court decision, and provided support structures for them in doing this.

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 displays 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.

Children are not property Public policy discourages approaches that have the child ‘fairly divided’ between parents, like an asset to be distributed. By various reforms to family law, parliament has worked hard in recent years to change parents’ attitudes about their ‘rights’ to their children, encouraging the idea that it is the children who have rights (such as to be safe, and to be able to be with, and be cared for by, both their parents). It is difficult for many parents to see their child’s interests as separate and perhaps different from their own, especially when the pain of even a short-term separation from the child seems unbearable. But this is the task for a separating parent. And although parents themselves are not legally bound to prefer their children’s best interests to their own, many mediation organisations require parents to consider the children’s best interests as a condition in their mediation agreements. Furthermore, if the dispute does reach a court, the court will determine an objective picture of what is in the child’s best interests, and may retrospectively assess whether the behaviour of parents indicates a similar orientation. See chapter 6 for a full discussion of the ‘best interests’ principle.

‘Winning’ and ‘losing’ It is easy for participants in a family law dispute to be drawn into a false idea of winning and losing. Many people find that ‘winning’, in the end, is

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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 sufficiently 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 prospects accrues in every week that your legal dispute goes on, while destructive 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.

Finding the relevant law Even if you decide to try to come to agreement with your former partner on property, parenting and financial matters privately, it is important for both parties to understand the range of results they might expect in court if their dispute resolution efforts fail. If both parties understand and accept their legal rights and responsibilities there is likely to be a quicker settlement, and a more sustainable long-term agreement.

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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 relationship – influences much of family law in Australia today.

The law of marriage The obligation to support your spouse The obligation on spouses to support each other financially comes into the Family Law Act (s.72) from the common law. The basic responsibility for maintaining a spouse differs from the old law in that it applies: • to both spouses, not just the husband • only when the supported spouse is experiencing some kind of inability to support him or herself. This obligation exists for all spouses. In practice, however, it usually only becomes relevant on marriage breakdown.

Ownership of property The law long ago established that men and women can own property separately 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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Marriage also remains relevant to property distribution on the holder’s death. For example, a marriage automatically revokes a person’s will; and if someone dies without a valid will their property passes under the laws of intestacy to their spouse.

Advantages of marriage at relationship breakdown Leaving aside questions of personal preference and religion, considerable legal advantages still flow from the status of marriage. Ironically, one of the principal benefits of being in a marriage (as opposed to a de facto relationship) is that if you have to end it, you come under the jurisdiction of the federal family law system. This system is quicker, cheaper and altogether more accessible than the state-based systems that deal with other forms of domestic relationships. The advantages of the federal system are even greater if you were supported by your partner, and you will continue to be the principal carer for your children after separation. The Family Law Act requires the courts, in dividing marital property, to consider the future needs and resources of the separating partners in relation to income, and such matters as the cost of raising children. The various state laws providing for property distribution between former de facto partners do not consider such factors. Additionally, under many insurance policies and workers’ compensation schemes only a ‘surviving spouse’ – that is, a marriage partner – can recover death benefits or compensation for wrongful death.

Marriages made overseas Most marriages validly made in another country are recognised in Australia. You can also obtain a divorce for an overseas marriage, as long as: • at least one of the parties lives in Australia, and • the validity of the marriage can be formally proved by a marriage certificate or other document (with a translation if it is not in English).

Marriage under Aboriginal customary law A marriage in accordance with traditional Aboriginal law is not recognised as valid under Australian general law.

The legitimacy of children The concept of illegitimate children has been dead in Australia since 1987. The parents’ relationship is irrelevant to the legal status of the children.

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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.

Separation for married couples ‘Irretrievable breakdown of the marriage’ Since 1975, the only ground for a divorce in Australia is ‘irretrievable breakdown of a marriage’. The only way to prove ‘irretrievable breakdown’ is by separation for at least 12 months (Family Law Act s.48). This separation must be proved by evidence that the marital relationship has been severed. A court will not consider a marriage to be ‘over’ by

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reason of temporary or trial separation, or even of physical separation, without evidence of the severance of the relationship.

Why the date of separation matters The date of the formal, legal separation affects many important matters – for example: • when a person can file for divorce • when child support becomes payable • when new Centrelink benefits become payable • how the court will calculate the property settlement.

Constant fighting, extramarital sex and loss of love do not prove the end of a marriage … Peaceful coexistence and monogamous sexual relations are not part of the legal profile of a marriage. Many people have workable marriages that do not include these characteristics. Thus, the date that ‘he started his affair’ or from which ‘we never stopped fighting’ is not in itself very useful. The relevant indicators of a marital relationship are generally observable, and about practical matters. As many poets have more than adequately described, love is neither observable nor classifiable. The death of love is not provable in court and thus is not an indicator of the end of a marital relationship.

The natural indicators of a marital relationship Because people live their married lives together in so many different ways, the law does not try to define, in practical terms, what final separation must look like. Instead, the severance of the marital relationship is proved by evidence of change in the overall character of the relationship. If there is a dispute about the date, or about whether there has been a final separation at all, the court will look at the total circumstances of the relationship both before and after the alleged separation. It will look at whether the parties live together, have sexual relations, cook or clean for each other, go about together as a couple, jointly care for children, spend time together, or support and protect each other. These are the some of the natural indicators of a marital relationship. But the absence of one or another of them won’t, in itself, be conclusive – there is no magic about deciding not to cook for someone that will prove final separation.

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Negotiation and settlement A viable relationship of any sort involves reasonable communication, some common values, and a preparedness to ‘give and take’. Unless or until separating parties are able to develop an effective post-separation relationship – and many people can – the scope for joint decision-making about children and property may be fairly narrow and based around fields of self-interest. In some cases these fields may be shown to intersect, and settlement can take place notwithstanding the remoteness of the parties in relationship terms. In other cases, the prospect of agreement and early settlement recedes towards the realms of impossibility as former partners seek to actually hurt, damage or punish each other. One way or another, however, many if not most couples identify value in reaching agreement, at an early stage, on a fair property settlement and a cooperative parenting relationship for the benefit of their children.

Settling – sooner or later Most separating couples – the vast majority – manage to resolve their property and parenting arrangements privately, without court action. Of those that do go to court, more than 95 per cent come to agreement on the issues themselves, before any court decision is made. So even if you feel, right now, that agreement with your former partner is barely imaginable, you need to accept the reality that you will probably come to an agreement with your spouse rather than have a court decide the outcome. Do you want this sooner or later? Are you prepared to pay $5,000, $10,000, $30,000, $100,000 in legal fees – with the same sort of money deducted from the property settlement for the other parties’ fees – for the difference between what you can achieve sooner and what you can achieve later?

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Options for settling sooner You can always choose to be part of the five per cent and wait for the court to decide – or you may feel you have no real choice. But if you wish to move ahead to finalise your arrangements more quickly and privately, there are a number of dispute resolution processes from which to choose. These are: • negotiation • counselling • mediation, and • arbitration.

Advantages of private settlement Cost Settling privately means far less financial cost – in legal fees certainly, but sometimes also in lost income-earning productivity.

Benefits for children Children benefit from the early return to a low-conflict, cooperative parenting relationship. See chapter 6 in relation to the damaging psychological effects of extended parental disputes on children.

Getting your own solution An agreement you make is likely to be more satisfactory and appropriate for your circumstances over time than one imposed on you by a court.

Certainty Going to the Family Court is a bit of a gamble. Since the major restructuring of the law that occurred in 2006, it is more difficult than ever to predict the outcome of a particular case. If you retain control of the decision-making process, you can see what you’re letting yourself in for.

Quick resolution Final court orders can take between nine months and three years to obtain. Unresolved personal and financial affairs can become very difficult over that time. Parties choosing private settlement can move on to develop and establish their new lives.

Lower emotional toll Family law litigation is not for the faint-hearted. Parties exchange bitter and hurtful allegations. Lawyers can be offensive. The court process is stressful, time-consuming and sometimes very disappointing. Parties who settle privately are more likely to keep their energy and emotional stability intact.

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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. Negotiating for yourself You will definitely save some fees, and you may settle sooner and on a more secure basis, if you do your own negotiating. You may choose to do this whether or not the other party is represented by a lawyer – although it is a very good idea to have legal advice about the issues beforehand. See pages 64–78 for some hints on negotiating successfully.

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 adjustment 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 preparation 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 counsellors’, and provides for an accreditation scheme. The clients of accredited family counsellors receive the benefit of important confidentiality protections (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.

Heads up and counselling! Counselling can be painful, but vastly less so (and less expensive) than hashing through private issues in a court case. If you feel unable to start with counselling jointly with your partner, try talking one-to-one with your own counsellor first. Schools, unions and workplaces often provide sympathetic and cost-effective counselling services for members of their communities.

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7 Property This chapter outlines the principles of property distribution under the Family Law Act for couples who are or have been married. Even if you aim to resolve any dispute without court action, you may find these principles a useful framework for your negotiation and agreement. An understanding of the likely range of results obtainable from a court if private negotiation fails is an important prerequisite to effective bargaining. This is sometimes referred to as bargaining in the shadow of the law. See chapter 3 for more about negotiating. The chapter goes on to describe, in practical terms, the process of reaching and implementing a property settlement. It then looks at more specialised family law property issues such as superannuation, the rights of third parties (like creditors) and bankruptcy. The sample property orders at the end of the chapter may be used in an application for consent orders, as well as in an application to the court. Most of them are also suitable for inclusion in private agreements.

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 negotiation and settlement. The cost of a fully litigated property case, complete

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with lawyers, starts at about $30,000 per party. When considering an offer made in private negotiations, it is useful (and sobering) to think of at least this figure (multiplied by two, for two parties) as funds from the property settlement that could be lost in legal fees. Are you confident you could do better in court, with the legal costs factored in? Many couples achieve cost-effectiveness, enforceability and finality by managing their own negotiations, with or without mediation or the help of a lawyer, then filing in court for consent orders when the deal is done.

Not for de facto couples As explained earlier, the parts of the Family Law Act that give the court power to make orders for property settlement apply only to couples who are or have been married. Property distribution for a couple who are living or have lived in a de facto relationship is dealt with by state and territory law, which is different in each state and territory. The relevant laws are listed on page 7. The scope of this work does not allow a comprehensive review of them. You should seek legal advice before instituting proceedings as a selfrepresented litigant on de facto property issues. State court procedure is complex and often difficult for non-lawyers, and litigation in state courts can be expensive. There are significant differences, too, between the entitlements of former de facto partners under state and territory legislation and those of former married partners under the Family Law Act, particularly in relation to their future needs and resources. All this reinforces the vital importance of a genuine effort by former de facto partners in dispute resolution methods such as negotiation, counselling and mediation (see pages 55–61). Many of the sample orders on pages 370–375 may be used in the privately negotiated agreements of separating de facto couples. But the law and court procedure described in the rest of this chapter does not apply to parties in de facto relationships.

The court’s four-step process The court uses a staged process to help it determine a ‘just and equitable settlement’. Step 1 involves identifying and valuing the assets and liabilities that form the global pool of property that is the subject of the settlement.

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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 allocation 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.

Applying the four steps to out-of-court settlements You may wish to use this process in your own analysis and negotiation – the method is designed to result in a fair distribution of assets, and it helps you to keep in view the likely result in court if negotiations fail. On the other hand, there are no particular rules to private negotiation other than the ones you agree with the other party. If you agree to discard a principle observed in the four-step process (for example, excluding superannuation from the asset list) – well and good. Just remember that the principle will come back into play if you can’t agree, and you end up in court. The four steps are discussed in detail on pages 321–342.

Two approaches to the distribution of marital assets Meaningful negotiation can take place only after both parties have disclosed all relevant information in their possession, and jointly identified a global pool of marital assets and liabilities. From this point, many people try to allocate the assets, or a portion of each, one at a time. This is called the asset-by-asset approach. The other method is the global approach, under which the parties agree on the central pool of assets and liabilities, calculate its value, then negotiate and finally distribute on the basis of percentages of the total. The two methods are discussed below.

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The asset-by-asset approach The asset-by-asset approach may be suitable if: • it is possible to ‘horse-trade’ on items of relatively low value and remove them from the pool without significantly changing the percentage going to each party • the relationship has been short • the property pool is small • property interests were kept separate in the course of the relationship • there is a significant difference in the initial contributions of each party • an asset or cash representing a significant proportion of the property pool was received close to or after separation, or • the parties just want to do it this way. But beware – though it may feel right initially to share things on a ‘you have this, I’ll have that’ basis, many couples soon find that they cannot seem to negotiate a fair result using this method. They lose their way in terms of the overall value of one party or another is taking. It may also be difficult to apply the court’s Step 2 and Step 3 assessment principles to individual assets – a significant threat to the chance of a fair outcome.

The global approach Under the global approach, parties agree on the value of a pool of assets and liabilities and then negotiate a percentage split – once at Step 2 of the court’s process, and then again, on a different set of considerations, at Step 3. At Step 2, for example, you might, after considering contributions factors alone, negotiate a 50–50 split. At Step 3, after considering your future needs and resources, you might allocate an additional 10 or 15 per cent to one of you who has responsibility for the care of three young children and a reduced future earning capacity. After the final percentage split is negotiated, the parties go back to work out which assets and shares of assets will go to make up the shares. There are usually a number of ways in which the shares can be made up. The global approach is favoured by lawyers and courts to reduce the complexity of negotiation, ensure fairness overall and obtain a set of comparable options for property division. The importance of an agreed set of assets, liabilities and values To negotiate meaningfully in percentages, the parties must be playing on the same field. Before you start to negotiate shares, you need to work to agree on the values of individual assets and liabilities and the total net value of the global property pool.

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Sample orders for spouse maintenance Periodic spouse maintenance That the Wife pay to the Husband the sum of $200 per week/fortnight/ month by way of the spouse maintenance of the Husband. That payments of maintenance commence within 7 days of the date of these orders and be made directly to the Husband by way of cheque/bank deposit to [account]/cash.

Maintenance 'in kind' By way of spouse maintenance, that the Husband meet all regular payment obligations in respect of the mortgage, council rates, water rates, and home and contents insurance of the matrimonial home as they fall due, and further that the Husband pay within 7 days any arrears accrued in respect of these payment obligations.

Lump sum maintenance That the Wife pay to the Husband the sum of $185,000 within 21 days, being a lump sum payment of spouse maintenance for the Husband.

The conciliation conference document If the parties to a property application have been ordered to a conciliation conference, they must each complete a conciliation conference document. A sample completed form, and a sample Attachment to Part F, are on pages 377– 382.

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Sample initial listing of assets and liabilities in a property pool Asset/Liability

Value $

House at 16 March Place, Inglewood (net of mortgage)

Held by husband $

Held by wife $

500,000

250,000

250,000

11,600

2,600

9,000

Honda motorcycle

1,500

1,500

Ford Explorer 1999 (net of lease pay-out)

1,000

1,000

Telstra shares 1000 @ $4.75/share

4,750

Commonwealth joint account

2,500

1,250

(10,000)

(10,000)

Furniture and household effects

Less balance Westpac Mastercard Less balance American Express Gold Card Value of total pool

4,750 1,250

(8,000) 503,350

(8,000) 246,350

257,000

Schedule of options for property division – global analysis of the property pool Based on the pool in the previous sample: Proportion of pool to each party

Husband’s total entitlement $

Husband to transfer to wife $

Wife to transfer to husband $

@ 30% to H – 70% to W

151,005

95,345

@ 40% to H – 60% to W

201,340

45,010

@ 45% to H - 55% to W

226,508

19,842

@ 50% to both parties

251,675

5,325

@ 55% to H – 45% to W

276,843

30,493

@ 60% to H – 45% to W

320,010

73,660

@ 65% to H – 35% to W

327,178

80,828

@ 70% to H – 30% to W

352,345

105,995

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377

Sample conciliation conference document Conciliation Conference Document ATTACHMENT B OF THE CASE MANAGEMENT DIRECTIONS Family Law Rules Please type or print clearly and mark [X] all boxes that apply. Filed in: Client ID number

Family Court of Australia Family Court of Western Australia

_______________

Lodged at

Filed on behalf of:

Lodged on

(specify full name of party) Husband/father

Court location

_________________

Wife/mother Other (specify)

Court date

__________________

Completion of Form Each party must: Prepare this document Deliver a copy to the other party no less than 7 days before the Conciliation Conference Deliver a copy to the Court not less than 7 days before the Conciliation Conference This document will not remain on the Court file following the Conciliation Conference and will either be returned to you or destroyed. There should be set out a list of the current property, liabilities, superannuation and financial resources, both as to identity and value, that are agreed, and those that are not agreed. Only complete the relevant section. Eg husband or wife

Part A

Current financial circumstances of the parties

Property Item

Ownership

House - 12 Harp St Attica

joint

400,000

1995 Holden Commodore

joint

5,000

2002 Ford Explorer

joint

15,000

Cash - IMF savins acct

husband

17,750

Shares - Execucorp

joint

6,000

Life insurance

wife

5,000

Yacht

husband

11,500

Furniture

joint

20,000

Husband’s value

Wife’s value

Total

$

Liabilities Item

Ownership

Husband’s value

Mortgage - 12 Harp St

joint

100.000

Visa

joint

12,000

Car loan (Explorer)

joint

12,000

Other’s value

$480,250

$

Wife’s value

Other’s value

Total

$

$124,000

$

Net

$

$356,250

$ 1

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Superannuation Item

Financial Resources Item

Part B

Ownership

Husband’s value

Wife’s value

Other’s value

Total

$

$

$

Ownership

Husband’s value

Wife’s value

Other’s value

Total

$

$

$

Contributions: Prepared on behalf of:

Set out the contribution based entitlement, expressed as a percentage of the net value of the assets of the parties from the commencement of cohabitation to the date of final separation and the present date. At final separation

Husband 50 %

Wife 50 %

Current

Husband 50 %

Wife 50 %

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. Financial contributions (s.79(4)(a)) The husband has made the principal financial contribution since the birth of the couple's first child.

Non-financial contributions (s.79(4)(b)) The parties have made equivalent non-financial contributions.

Contributions to welfare of family (s.79(4)(c)) The wife has made the principal contribution as homemaker and parent since the birth of the first child.

2

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Property

Part C

379

Other factors: Prepared on behalf of:

Set out the adjustment (if any) expressed as a percentage of the net value of the assets of the parties to be made to the contribution-based entitlement alleged, having regard to the factors in s.79(4)(d), (e), (f) and (g). Husband less 20 % Reasons

Wife plus 20 %

Set out in a brief but concise form having regard to s.79(4)(d), (e), (f) and (g) the matters relied upon to support the entitlement specified. Effect of any order on earning capacity (s.79(4)(d)) The parties propose consent orders confirming the status of the wife as primary carer for the couple's three children (aged 8 and 3). The parties agree that the wife will not work until 2008, when the youngest children commence school. At this time, she will seek part-time employment as a graphic designer.

Matters as relevant (s.79(4)(e) s.75(2)) The two youngest children are twins. The female twin, Kayla, has a low weight-to-age ratio and may suffer health problems in the future.

Other orders (s.79(4)(f))

Child Support (s.79(4)(g))

Part D

Just and Equitable

Set out in a brief but concise form any circumstance relevant to s.79(2) “the Court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order” 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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Part E

Other Party’s Claim

Set out in brief but concise form details of other party’s claim as relevant and the husband and/or wife’s proposal in relation to that claim. 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 Introduction 1 The family law system Decisions at separation

xii xiii 1 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 The law of marriage

26 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 ‘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

28

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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

3 Negotiation and settlement Settling – sooner or later

53 53

Options for settling sooner • Negotiation • Counselling • Mediation • Arbitration • Power imbalance in private dispute resolution

Negotiating with your partner

63

Negotiation through a lawyer • Negotiating your own settlement

Procedures before making an application

78

Dispute resolution requirements for parenting cases • Pre-action procedures for property cases • The two stages of pre-action procedures • Improper use of the pre-action procedures • Non-compliance with the pre-action procedures

Certificates required to commence proceedings

82

To commence divorce proceedings • To commence parenting proceedings

Dispute resolution after a case commences

85

Property cases • Parenting cases • Non-compulsory dispute resolution

Offers to settle

86

Compulsory offers • Filing an offer in court

Forms of agreement

90

Private agreements • Binding financial agreements • Consent orders

Documents for consent orders

105

The cover sheet • ‘First page’ of consent orders • Minutes of Consent Orders • Form 11 Application for Consent Orders • Sample cover sheet • Sample first page of consent orders • Sample Minutes of Consent Orders • Sample Form 11

4 Court process Choosing the court Jurisdiction • Court policies • Practical considerations • Transfer

135 135

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Contents

The process of litigation

vii

139

Stages of the process • Case management in ‘child-related proceedings’: A new pathway • Case management in the Family Court • Case management in the Federal Magistrates Court • The Family Court of Western Australia • Appeals

Common aspects of court operation

149

Mentions and callovers • Directions and orders • Changing a court date • Special circumstances • Urgent hearings and expedited trials • Court services

Filing and forms

156

Filing documents • Applications and accompanying documents

Serving documents

162

Filed documents you don’t need to serve • Methods of service • Serving the independent children’s lawyer • Proof of service (it may be vital) • Conduct money • Addresses for service • If you can’t serve a document

Disclosure and discovery

166

Disclosure • Discovery

Obtaining information and documents

169

Subpoenas • Notice to Produce • Notice of Non-Party Production of Documents • Information from employers • Information in relation to family violence or child abuse

Contempt of court

175

Contempt inside the courtroom • Contempt outside the courtroom • Punishment

Frivolous and vexatious litigation

176

Frivolous applications • Vexatious applications • Abuse of process • Repeated frivolous, vexatious or abuse of process applications

Court fees and legal costs

177

Court fees • Legal costs

5 Evidence The basic task for evidence

181 181

Factors, facts and evidence • What is evidence? • Analysing your case • The ‘best evidence’

The law of evidence

186

Why there is a ‘law of evidence’ • Where to find the law of evidence

Admissibility A short course on admissibility

188

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Claiming privilege

197

Sources of privilege • How to claim privilege

Affidavits

202

Formalities • What to include, what not to include • Contradicting affidavit evidence

Reports

209

Family reports • Expert reports

Witnesses

212

In a parenting case • In a property matter • Desirable and undesirable testimony • Reluctant witnesses • Evidence from cross-examination and re-examination

Applying for an order for a family report

6 Parenting Children’s response to parents’ relationship breakdown

216 219 219

Helping children cope

The parenting principles

222

Parenting values in the law • The effect of the parenting principles • The objects of the Family Law Act • Parents’ rights

The new philosophy of shared parenting

223

Parental responsibility • The presumption of equal, shared parental responsibility

The best interests of the child

229

How the ‘best interests’ principle affects parents • The approach of the court in determining ‘best interests’ • The best interest factors • Primary considerations • Additional considerations

Post-separation parenting arrangements

243

Spending time and communicating after separation • The legal duty of each parent to encourage the child’s relationship with the other • Concerns about sharing the parenting role • If the child is reluctant • Timing problems • Problems at changeover • Child and family services • The costs of spending time with a child • Disputes about post-separation arrangements

Parenting plans

254

Formal requirements • Effect of a parenting plan • Changing or terminating a parenting plan • Issues addressed in a parenting plan (or parenting order)

Parenting orders Who can apply for parenting orders • Who parenting orders may be made about • Family dispute resolution requirements •

257

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ix

Types of parenting order • Order for supervised time with a child • Parental responsibility orders • Family violence orders and parenting orders

Evidence in parenting cases

269

Changes to evidence in child-related proceedings in 2006 • Evidence in interim hearings • Evidence of the views of children • Evidence of parenthood • How the court decides parenting orders

Relocation

276

Legislation • Trends in relocation cases • Applying for orders

Travel with a child

282

Local and interstate travel • Overseas travel

Abduction of a child

284

Recovery of a child in Australia • If you don’t know where the child is … • Recovery of a child taken overseas

Step-parents, ‘functional parents’ and non-traditional families

288

Functional parents and parenting orders • Adoption • Samesex parents

Child abuse

290

Notification to child welfare authorities • Notification to the Family Court • Consideration of child abuse by the Family Court • Applying for interim orders • Examination of children for evidence of abuse • When a child is the subject of a child welfare order

Order drafting and sample orders

295

Using attachments to set out the proposed orders • Identifying parents and children • Covering the issues • Using the sample orders • Drafting consent orders and parenting plans • Sample parental responsibility orders • Sample orders about where the child will live • Sample orders for spending time and communication • Sample orders for changeover • Sample orders limiting parental behaviour • Sample orders requiring parental behaviour or procedure • Sample orders for communication and consultation • Sample orders for dispute prevention and resolution • Sample urgent and ex parte orders • Sample orders dealing with relocation • Sample recovery orders • Sample location orders

Contravention of parenting orders • Reasonable excuses for contravention • Categories of contravention • Bonds • The best interests of the child • Effect of a parenting plan on a contravention allegation • Variation of the orders • Contravention applications

311

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7 Property Settling privately The court’s four-step process

317 317 318

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 Pre-settlement property issues

342 342

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 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

369

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Contents

xi

• Schedule of options for property division – global analysis of the property pool • Sample conciliation conference document

8 Hearings Two litigation tracks Hearings and trials

383 383 384

Law on the conduct of trials and hearings • Law about the subject of the case: Substantive law

Interim hearings and other interlocutory proceedings

387

Procedural applications • Hearings involving disputed facts

Going to court

389

Preparation and arriving at court • In the courtroom

Preparation for the final trial or hearing

392

Compliance with formal requirements • The Trial Notice • First hearing day in child-related proceedings • Final affidavits • Amended application and response • Gathering documentation: Subpoenas and Notices to Produce • Gathering witnesses • The pre-trial conference • The Joint Case Summary • The Summary of Argument • Analysing a child-related case • Fees • Notice of changes to the ‘trial information’ • Notice of objections to evidence • List of documents to be relied upon • Notice to attend for crossexamination • More preparation strategies • Timing of the trial • Using a support person in court

The stages of a final trial or hearing

413

Objections to the admissibility of evidence

Strategies for the trial

417

The opening address • Evidence-in-chief: Witnesses • Evidencein-chief: Documents • Cross-examination • Re-examination • The case-in-reply • The closing addresses

Judgment, costs, appeals

430

Judgment • Costs • Appealing the decision

Contacts and resources Cases Index

431 435 437