Emilie Cooper is the primary advisor on family law at Priest McCarron.
Relationship breaking down? How can we help?
If your relationship has reached a crisis stage for you and your partner, there are many ways in which you can try to resolve or at least alleviate the crisis. As lawyers, we are restricted to advising you on your legal position and assisting you to navigate your way through the emotional turmoil that as carefully as we can.
Separating after a long relationship or where there are children involved is particularly traumatic.
When plants have been planted too closely together, each can stifle the other and stunt the other's growth or the stronger may dwarf the other and starve it of light and water and nutrient.
People, like plants, sometimes enter into relationships that may start off well, but deteriorate over time as each person develops according to their own characteristics so that eventually the relationship becomes toxic to one or both of the parties.
Separation, however, takes time and needs to be handled carefully. Like separating two plants, the roots that each plant has put down and intertwined with the other must be carefully disentangled to enable each plant to establish a separate healthy and vigorous existence.
Our role is to help you to do this.
How do I minimise the impact of separation on the children?
Parents should try to agree on a parenting plan or parenting orders for their children when they separate. Inter-relate run a programme called "Parenting not partnering" to encourage each party to focus on the children not the other party. The Family Law Act 1975 also focuses on what is in the best interests of the children not the best interests of either of the parents. Focussing on the needs and interests of your children will not only minimise the impact of separation on them, it will also ensure that your costs are lessened.
The Court considers that the two primary considerations of benefit to the child are:
- having a meaningful relationship with both parents
- the need to protect the child from physical or psychological harm arising from abuse, neglect or family violence.
In addition, the Court will consider the age, sex and maturity of the child, views expressed by the child, and the relationship of the child with each parent and other relatives.
Before the Court will make a decision, the parents and children will be required to attend with a Court appointed expert who is a psychologist or psychiatrist specialising in children's matters. The expert will provide a report to the parties and the Court which will provide recommendations to the Court as to how much time the child should spend with each parent. The Court may override or vary the recommendations of the expert but it will put siginificant weight on the expert's recommendations.
Do I have to pay child support for my children or maintenance for my spouse?
Both parents are responsible for the financial support of their children until each child reaches the age of 18 or until completion of the school year in which the child turns 18. Child support can be paid as the parents agree, or it can be assessed by the Child Support Agency, which uses formulas it has developed for the purpose.
The Child Support laws are complex. You should contact the Child Support Agency in the first instance and have a look at their website. If you have come to an agreement regarding the payment of child support that does not conform with the terms of the Act, you may enter into a Binding Child Support Agreement. You will need a lawyer to advise you in relation a binding agreement.
Divorce is the Certificate which is granted to you to formally terminate your marriage. You must obtain a Divorce Certificate if you wish to remarry. The only ground for divorce is irretrievable breakdown of the marriage. To obtain a divorce after marriage has irretrievably broken down, you and your spouse must have lived separately for at least one year. Either spouse can apply to the Federal Magistrates Court for a divorce. If there are children of the marriage that are under the age of 18 years, the Court may not grant the divorce until it is satisfied that there are proper arrangements for the children.
Dividing up property on separation
Property of the relationship or marriage can be divided up by agreement and then formalised by Consent Orders or a binding Financial Agreement. Complex rules apply to the division of superannuation and property and it is generally in each party's interest to obtain legal advice with respect to an equitable property settlement. It is important that there is full and frank disclosure of all the assets and liabilities of the parties when entering into a property settlement or when making an application to the Court.
You can enter into a financial agreement before the commencement of a relationship or marriage, during the relationship or marriage or on termination of the relationship or marriage.
For a financial agreement to be binding each party must be separately advised by a lawyer as to the effect of the Agreement on the rights of the party under the Family Law Act and the advantages and disadvantages to the party of entering into the Agreement at the time the it is entered into.