Do I Have To Move Out To File for Divorce?

 

This is a very common question and a natural thought to have if you are thinking about, or planning to get divorced from your spouse. In some circumstances, where the situation might be particularly volatile, both partners are keen to escape each other anyway, so one moving out isn’t even really an issue as they want time apart as soon as possible.

However, separation is not always that easy or “instant”. The house you both live in might be owned by the pair of you. If there are children involved, neither parent is going to be keen to hurry up and move out and be away from their children and the familiarity of it all.

Ultimately, if you are getting divorced you will eventually be going your separate ways, but in order to file for a divorce in the first place, do you have to be separated literally?

The law states that for a couple to seek a divorce, they must first be separated for a period of 12 months and that the relationship has gone beyond the point of being salvageable.

Although the Family Law Act 1975 makes this statement, that doesn’t mean you and your partner have to physically be separated and living at different addresses for a year before getting divorced.

Living separately under one roof is extremely common these days and this is officially recognized. It’s also very understandable as both parties are going through the processes of breaking up, talking to the children, making arrangements for after the divorce, and so on. It’s also not always financially viable to physically separate immediately.

If you are thinking divorce is imminent, or you and your spouse have discussed that divorce is the best course of action to take, then make an appointment with a family law expert to discuss your rights and your options. It’ll put your mind at rest.

Article Source: Do I Have To Move Out To File for Divorce?

Working of spousal maintenance in Australia

 

People might ask “what is spousal maintenance?”, the answer is quite simple: it is financial assistance given by one ex-partner to the other if they are financially unstable. Spousal maintenance in Australia can also be paid by lump sum in lieu of spousal assets to be shared, such as boats or cars.

There are two types of spousal maintenance, the Family court or the Federal court deals with them. 

1. Spouse maintenance: One person gives this financial support to his or her former husband/wife. Their previous partner gives them financial assistance. 
2. De facto partner maintenance: If a couple is no longer in the de facto relationship, then one may give financial assistance to other partners. 

The family law Act 1975 states that a person is responsible for assisting the former de facto 

What are the critical factors in the court’s decisions:

Before making a decision, the court checks the applicant’s needs and the financial stability of the respondent. The following are essential factors for both persons:

• Age and health
• Yearly income, current property and financial resources
• Can the applicant work?
• Standard of living
• Has the marriage affected financial status?
• Are they supporting any other person? 
• Do any of the parties have social security benefits?
• How much one has contributed to the financial state of the other.
• How much has the relationship affected the earning of the applicant?
• Are there any possibilities for child support payment?
• Do the parties have any financial agreements between them?

You can see section 75(2) (married) and for de facto check 90SF (de facto) to know more.

Can I have spouse maintenance if I was in a de facto relationship?

If you were in a de facto relationship, and now you want to apply for spouse maintenance then give a read to De facto property regime page it is on the Attorney-General’s website. You will know whether you are eligible for spousal support or not.

The law is different for people living in Western Australia. You should visit the website of the Family court of Western Australia. 

What is the procedure of spousal maintenance?

It is good to have an agreement with your spouse before applying for spousal maintenance. If there is no agreement, then you can use the Federal Circuit Court. You will have to submit your income and expenses details in a financial statement when applying. The spouse will follow the procedure. 

If there is an urgent need for financial assistance, then the court may order immediate payment. 

Spousal maintenance Australia: calculator

Every applicant has a question in mind that “How much is spousal maintenance?”. Well, there is no fixed amount, but the court follows a procedure. We have tried to explain it below. 

The court will check the financial condition of the applicant and the capacity of the spousal, after that the court will make a judgement about the payable amount. There is no formula for calculating spousal maintenance.

The court assumes the day-to-day expenses of the applicant and the respondent, and then it will be decided whether to pay the spousal support or not if it is payable then how much. 

If the applicant is responsible for taking care of the child or children below the school-age, then the court will not ask you to work as the children will need full attention. But, once the children reach the school-age, you will need to work unless you do not have some other responsibilities. 

Will I receive spousal maintenance if I am in a new relationship?

If you marry a new person, then you will not get spousal maintenance, unless ordered by the 

If you are in a new de facto relationship, then the court will consider your financial status and of your new partner and will make an original decision according to that. 

When should I apply?

The deadline for applying is different for both conditions. Suppose you were married and had a divorce. Then you should apply within 12 months from the date of the separation. In the case of a de facto relationship, there are two years for use. 

If you are unable to apply within time, you can have special permission from the court for use even after the time. But, you will not get this chance if you don’t have a valid reason for the late submission of the application.

Do I need to have a lawyer for spousal maintenance?

You should contact experienced family lawyers when applying for spousal maintenance. 

There are many essential factors in a spousal order. Every case is different, and the conditions vary from person to person. The payable amount changes from case to case. It would help if you considered experienced family lawyers to understand your situation. 

If you are looking for spousal maintenance QLD, then Mackay family lawyers are your choice.

Source: Working of spousal maintenance in Australia

When is Child Support Applicable and What Does It Cover?

 

The financial wellbeing of the children is always of the highest consideration when couples separate or divorce. If one parent has custody of the children, for the most part, that doesn’t mean the other parent is no longer obligated to offer financial assistance for the expenses of the children.

So what things does child support typically cover?

The general and rather a broad list includes:

• Schooling
• Medical costs
• Food
• Housing
• Clothing
• Extracurricular activities

Generally, child support is paid by the partner with more income, but less time with the children. The amount is typically negotiated depending on the state of the relationship after the breakdown of the marriage or de facto partnership.

To have an idea of how many children support you might likely be required to pay, you can visit the Child Support Agency (CSA) website and make use of their child support calculator, which takes into account the income and circumstances of both parents, as well as how many children under the age of 18 are involved. This is an estimation tool only.

It’s always the best course of action to be able to work out financial care for the children outside of a courtroom. While it’s not always possible, it is the most amicable.

Some parents may insist on child support amounts that are unfair or too high, desiring to use the money to pay for health insurance and private schooling. While health and schooling come under the broad categories of child support mentioned above, private school fees and premium health insurance policies are up for negotiation between both parents.

To effectively mediate the child support agency process so it’s fair for everybody, it’s best to collaborate with your legal representatives. You need to team up with a law firm that has experience and expertise in collaborative law and family law.

That team in Brisbane is Aylward Game Solicitors. With specialist training in this field and many years of practical experience, we are the law firm you can count on for an expedient and fair resolution to your child support requirements.

Article Source: When is Child Support Applicable and What Does It Cover

What Are The Effects Of Changing The Nature Of Parental Responsibility On The Life Of A Child?

 

By law, there are some defined duties, powers, authority and responsibilities of parents for their children. These are known as parental responsibility. The responsibilities include child’s growth, education and religion. Give them a proper environment and teach them discipline. You will have to take legal proceedings on your child’s behalf. The key responses in regards to the changing nature of parental responsibility initiated by the legal system are the Family Law (Shared Parental Responsibility) Act 2006 (Cth)

You will find different duties of parents in various statutes. For instance, according to 285, 286 Criminal Code Act 1899, the parents must provide the child all the necessities including medical treatment, lodging, clothing, food and care. Also, it is stated in 176 Education General Provisions Act 2006 QLD, that it is the duty of parents to enrol the child in a school and ensure attendance. The concept of the changing nature of parental responsibility has seen immense change in responding to recognizing the responsibilities parents possess in regard to aligning decisions with the child’s best interest, as particularly stated in Article 3 of Croc.

Who has parental responsibility?

According to the parental responsibility family law act, original parents or artificial surrogacy parents are authorized for parental responsibility. They do not need a court order for that. The grandparents or the step-parents can get involved in the care of the child. They have the authority to make decisions for the child.

It continues till the child is 18 or the marriage ends. The court wants the parents to share their responsibilities even after divorce. So, the child can have love from both parents. Parental responsibility applies whether the parents were married, or they were in a relationship.

Equal shared parental responsibility:

If the child is under 18 and the parents are no longer together, then they can share the responsibilities of the child. It is called equal shared responsibility. None of them can decide the long term issues of the child. For instance, a child’s school, medical treatments and religion.

It is applicable until the court gives an order in the best interest of the child. It can remove parental responsibility from one or both parents. 

When parents are not together:

When the parents are no longer together, there is a need to make arrangements for the care of the children. The adults and parents can make their own decision. This decision is acceptable until it is in the favour of the safety of the child, else get help from the court.

If the parents are unable to communicate effectively they can request the court to give a parenting order.

The court will decide that:

• With whom the child will live.
• How much time can the child spend with each person?
• Responsibility of each parent.

If a child under age 18  leaves home, the parents or the state can force him to come back. In the case of a child with an age of more than 18, you cannot force them.

Rights of parents:

The parents also have rights. Parents can raise their children according to their wish. They can transfer their beliefs and religion to their children. They can also make decisions for their education and medical treatment. You have all those rights unless the child’s life is at risk.

The working parents have the rights to access the information of child-care services on payments.

The rights of parents do not include the custody of the child. For instance, after separation, the court makes a decision in the favor of the child’s best interest.

Changing the nature of parental responsibility in Australia:

The time is not always the same. A happy marriage can turn into separation and then may lead to divorce. So, in this case, parental responsibility can change. It is good if both parents share the responsibilities even after this situation. But, if the parents are unable to make a decision they will need help from the court. The court tries to make a decision to give the child a good life. In this scenario, the court can take or give more rights and responsibilities to each parent. If a parent is earning more he or she will have to donate more in the life of the child. 

But the parents should remember that their decision must not affect the life of the child. They have to try and give equal love to their children. This love will not just make them happy but also they’ll have confidence in them. So, don’t fight in front of your children.

Frequently asked questions:

Let’s discuss some of the most commonly asked questions about parental responsibility.

What is the sole parental responsibility in Australia?

Insole parental responsibility only one parent has complete rights for making major decisions for the child. It is just the opposite of parental responsibility, where both parents have equal rights in making crucial decisions.

How to get sole custody of a child in Australia?

If you want sole custody then you will have to apply to court. Also, you will have to provide a full report which explains all the matters against the other parent. If you can prove to the court that the other parent is not eligible for parenting responsibility then you will get sole custody.

When can a child make decisions?

By law, a child cannot make a decision until he or she turns 18 years.

When a parent is unfit in the eyes of the child?

There are certain conditions when a parent is unfit in the eyes of the court. For instance, abusing, failing to provide the child with necessities. In these situations, the court can reconsider its order.

Is it legal for my husband to take my child away from me?

Sometimes it is illegal to take the child away from the parent. But if you are married and you don’t have a court order then it is legal for the other parent to take the child away. Also, if your partner has sole custody it is legal for him or her to take the child.

Article Source: What Are The Effects Of Changing The Nature Of Parental Responsibility On The Life Of A Child?

What are Family Law Contraventions and Breach of Orders

 

There is little that is more frustrating than receiving Final Court Orders about child support or parenting arrangements, only to have the other parent contravene or disobey the final Orders, causing a breach of orders. There was the case, a father was jailed for six months for contravening family court orders to return a boy from the Middle East to his mother in Australia. In that case, the penalty was employed as a coercive measure designed to compel the father to cause the return of the child, rather than a punitive one.

Our solicitors are often asked by our clients in this situation: “What can I do about my ex’s breach of Court Orders?”

Put simply, the answer is yes.

Complying with Parenting Orders

When the Court Orders are made, both parties are required by law to follow them. This means the parties must take all reasonable steps to ensure that the Order is adhered to and put into effect. Children must also comply with the Orders.

If a party does not comply with the Court Orders, they are then deemed to have contravened the Orders, and harsh penalties may be applicable.

Sometimes, a form of contravention can be unintentional and occur because one party doesn’t fully understand what the Orders mean. It is therefore critical that all parties to Court Orders fully read and comprehend the contents and meaning of the Orders.

In certain situations, there may be other valid reasons as to why a parent contravenes an Order. For example, if a parent was unable to transport a child to the changeover location because of floodwaters or other mitigating circumstances outside of their control.

Having said this, if a party lacks a reasonable excuse, and the breach is willful, persistent or serious, the other party can then make an application to the Court.

Serious penalties for Contravening Family Court Orders

In the event that your application to the Court is successful and the Judge makes a finding that the other party has contravened the Parenting Orders without a valid and reasonable excuse, then there are a number of ways the Court can proceed.

Depending on the situation and the type and seriousness of the contravention, a Judge may make orders to –

• The original Order is changed.
• One or both parents attend a parenting program after separation.
• Compensation is allowed for time lost with a child, for example by ordering that a party has “makeup time” with the child.
• The contravening parent enters into a bond.
• The contravening parent pays some or all of the legal costs.
• The contravening parent pays an amount for the reasonable expenses lost as a result of their contravention.
• The contravening parent participates in community service work.
• The contravening parent pays a fine, or
• The contravening parent serves a jail sentence.

Seek Help from an Experienced Family Lawyer

We will help you. If you are on the receiving end of this type of breach and thinking about applying to the Court to assist with the other party not following Orders, we recommend you speak to an experienced family lawyer first. It’s also important to decide early on what you wish to achieve. For example, if you would like to have the existing Orders amended, then a contravention application is not your only option. In fact, depending on what you want to have changed, this may not be the best course of action to take.

You may first be required to attempt to resolve the situation by alternative dispute resolution (known as ADR). To check, read section 60I here or visit the Government family court website.

In the event you simply want the other party to “adhere to the Orders”, you are well-advised to speak with an experienced family lawyer. They can explain your particular options and even help you to choose the best course of action. They can also represent you at Court if needed.

If the other parent has already made an Application for Contravention of Orders and you have been named as the Respondent, then it is critical to obtain advice from an experienced family lawyer immediately to discuss the best strategy.

Article Source: What are Family Law Contraventions and Breach of Orders

Do grandparents have rights in Australia?

 

Grandparents have a great love for their grandchildren. They want to spend more time with them. But sometimes the parents don’t want their parents to see their children. It is not good for them. But this is an unusual situation but what happens if the parent’s divorce. In this scenario the laws are different, let’s learn a little about the grandparent’s rights in Australia. 

Grandparents rights in Family law:

In Australia, the Family Law Act 1975 applies in cases of separation, division, property division and custody of children. Grandparents have the right to apply in Family court and ask for the time to spend with their grandchildren. They can also ask for their custody in case of divorce or separation. 

The Family Act Law clearly states that grandparents can apply to the court for the best interest of their grandchildren. But it does not give them an automatic right to have a relation with the children. 

Custody of children after custody of parents:

In most cases, parents can easily decide who will keep the children. Also, they don’t face any difficulty in making decisions for other aspects of their child’s life. They can put these decisions into a written agreement which is known as a parenting plan. Parents can make these arrangements more formal by writing consent orders and registering the document in the Family Court. 

If you feel that your relationship with the children will not be the same after the separation of their parents, you can ask their parents to include you in the parenting plan or the consent orders. It is not wise to leave the child’s best interest while making such documents. 

What are the child’s best interests?

When the parents are separating the court looks at:

1. Is the child comfortable around both parents?
2. Protection of the child.

The Court also considers:

• How the child feels about his/her parents.
• Relationship of the child with parents, grandparents, and other relations. 
• The willingness of each parent to support the relationship of the child with the other parent.
•  Effect of separation on the child. 
• The capacity of each parent to support the needs of the child. 
• The lifestyle and background of the child and parents. 
• Each parent’s love for the child and role in parenting. 
• Any violence in the family. 
• Any other point the Court thinks relevant to the case. 

Are you not allowed to see your Grandchildren?

Sometimes grandparents are not allowed to see their grandchildren. It happens due to the breakdown of relationships with your child. Also, if the parents are divorced then the other parent may stop you from seeing the child. 

Unfortunately, the grandparents do not have the primary right to have custody of the child. But, any person who can show enough care and love for the child may apply to the court for parenting orders. If you have a parenting order then you can spend time with the child.

Parental rights vs Grandparent rights:

There is not a big difference in parents' rights against grandparents' rights in Australia. But they are not the official guardians of the child until they have a parenting order from the court. If the grandparents feel that their grandchildren are not getting proper parenting, they can apply to the court for custody of the child. If the parents make an agreement for the child after separation, the grandparents can ask parents to add their rights also in the agreement. But still, if the court can order to stop grandparents from seeing the child according to the child’s best interest. 

How to see Grandchild?

The grandparents have the rights to see grandchildren in QLD and all around Australia. But if you are having problems with their parents you can follow the given procedure to see your child. 

• Get legal advice: Each situation is unique, so you should get legal advice.
• Dispute resolution: Before going to court try to make an agreement with parents to save time and money. 
• Going to Court: If unfortunately, dispute resolution fails, you can contact the Court to get an order to spend time with your grandchild. 

This is a simple and effective procedure. If you have any query you can contact us to get legal advice. 

Frequently asked questions:

If my daughter has named me as the guardian of her children will they live with me and not their father when she dies?

Even if you are named as the guardian of the child you don’t have the legal right to force the child to live with you. You can ask the court for custody of the child. If the other parent agrees that the children will live with you, you will still need Court orders. If you don’t have a court order you will have difficulty in dealing with schools, doctors, or government departments. 

Do grandparents get financial assistance?

If you are responsible for at least 35% care of your grandchild you may receive child support. The child support agency calculates care according to the number of nights that the child is expected to spend with you in a year that is 12 months. 

Can I take custody of the child from my daughter?

Sometimes the child’s parents may not be the best of parents. They may have a mental illness or addiction which can affect the life of a child. If you find the child’s life at risk you should contact Child Safety Services. If you think that the child is safe with you you can ask the Court to take custody of the child.

Article Source: Do grandparents have rights in Australia

De Facto Couples | De Facto Relationship Qld

De Facto couples have the same rights, responsibilities and legal protection as married couples under the Family Law Act in Australia.

But more stringent definitions mean that couples may unknowingly fall into a relationship — something that can have legal and financial consequences for the unwary. If you separate, your ex-partner may be able to claim a portion of your assets. Negotiating this can add to the emotional trauma of the initial separation.

You have the same rights as a married couple under the Family Law Act.  Find out all you need to know.

Changes to state and federal relationship law over the last few years give de facto couples the same rights, responsibilities and legal protection as married couples.

At Family Law, our team will help you understand your legal rights as a couple. We can help you draw up a financial agreement that sets out how you will divide joint assets if the relationship goes awry. Or we can help you negotiate a separation agreement if you’ve separated prior to 1st March 2009.

If you would like to read the relevant sections of the legislation in regard to Divorce Property Settlement please go to the Family Law Act. For more Binding Financial Agreements for information on Prenuptial Agreements.

Please reference Sections 90R & the 90S.

We support you with representation, advocacy, mediation or collaboration to help you to attain your best outcome regarding parenting, division of assets and spousal maintenance as painlessly and inexpensively as possible.

New de facto legislation is incorporated in the Family Law Act and came into effect on 1 March 2009.

MEANING OF DE FACTO RELATIONSHIP

A person is in a de facto relationship with another person if:

• The persons are not legally married to each other; and
• The persons are not related by family (see subsection (6)); and
• Having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

Working out if persons have a relationship as a couple

Those circumstances may include any or all of the following:

• The duration of the relationship;
• The nature and extent of their common residence;
• Whether a sexual relationship exists;
• The degree of financial dependence or interdependence, and any arrangements for financial support, between them;
• The ownership, use and acquisition of their ;
• The degree of mutual commitment to a shared life;
• Whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
• The care and support of children;
• The reputation and public aspects of the relationship.

 

1. No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship in qld.
2. A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
3. For the purposes of this Act:

• A de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and
• A de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.

 

The legislation allows for the Family Court and Federal Circuit Court to deal with financial issues arising from a relationship.

De facto couples under the new legislation are able to enter into financial agreements regarding assets acquired:

• Before and during the relationship; as well as
• After the relationship has ended.

 

This part of the de facto legislation in the Family Law Act only applies to partners in de facto couples who:

• Separate after 1 March 2009;
• Enter into a financial agreement; or
• Seek Consent Orders from the Family Court.

 

Parties who separate prior to 1 March 2009 can, by the consent of both parties, elect to have the matters dealt with in the Family Court. If you separated from your partner prior to 1 March 2009, the provisions of the Property Law Act 1974 (Qld) will apply.

Separation prior to 1 March 2009 – De facto property matters remain under the State Property Law Act and are dealt with in the State Supreme and District Courts.

Note:   Applications relating to the State legislation must be made within a period of 2 years after the date of separation.

FAMILY COURT – CHILDREN AND FINANCIAL ISSUES FOR DE FACTO COUPLES

If you and your partner cannot agree on the parenting of your children or how to divide the property, you may have to go to court unless you attempt a form of alternative dispute resolution. However, the Court cannot make a decision in relation to the property of a de facto relationship in QLD if the couple has not been in a relationship for more than 2 years.

If you do take your property dispute to court, the judge will make Orders for you and your partner to split your assets in a way that decides to be fair and reasonable in the circumstances.

Article Source: De Facto Couples