The law states that in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration. There is a large body of law dictating the principles and precedents in determining what is deemed to be in the best interests of the child. Disputes regarding parenting orders can be very difficult and confronting, and require careful analysis and preparation to ensure that your child's interests are best protected.
One of the more difficult areas within family law relates to the parentage of a child. The law provides certain presumptions about parentage including that if a child is born to a woman while she is married, the child is presumed to be a child of the woman and her husband. A further presumption is that if a child is born to a woman and at any time during the period beginning not earlier than 44 weeks and ending not less than 20 weeks before the birth, the woman cohabited with a man to whom she was not married the child is presumed to be a child of the man. These presumptions are rebuttable by proof on a balance of probabilities and the court may order a parentage testing procedure to be carried out if an issue about parentage is raised.
The parents of a child have the primary duty to maintain the child under the law. The law further provides that the primary carer of the child can make a claim for child support from the other parent. The portion of the costs required for the maintenance of the child is calculated on each parent’s income and the time each parent spends with the child. The Australian Government Department of Human Services administers child support arrangements and assesses the amount of support required for the maintenance on the child. Issues may arise regarding the assessment and administration of support at which time you should seek legal advice to familiarise yourself with your rights under the law.
An application for divorce can only be made on the ground that the marriage has broken down irretrievably. Furthermore, the law requires that the parties have been living separately and apart for at least 12 months at the date of filing the application. The law does provide for parties living separately under the same roof, in which event evidence needs to be filed in support of the application confirming the circumstances of separation. In the event of parties reconciling during the period of separation and then separating again, the 12 month separation requirement is not restarted, but is extended, provided that the reconciliations do not total more than a total of three months. Finally, if there are children of the marriage, the court will not grant a divorce order until proper arrangements in all the circumstances have been made for the care, welfare and development of those children.
Financial agreements are formal agreements between couples dictating how their property is to be divided and can be executed before, during or after marriage. The most common of these is the prenuptial agreement, often sought by couples intending to marry and willing to protect their assets in the event of a relationship breakdown. In order for financial agreements to be legally binding, both parties will need to receive independent legal advice prior to executing the agreement. There are both advantages and disadvantages in executing financial agreements and it is very important to obtain the right advice in considering the best option for you.
There is a common misperception in the community that divorce is the final determination of the relationship between you and your former spouse. This is not the case. In order to move forward following separation/divorce, the law provides that separated spouses make a final determination of the financial relationship between them. Separated couples are faced with the daunting task of how their assets and liabilities are to be divided between them. The final determination of the financial relationship between the parties takes into account the individual contributions and future needs of the parties. It is crucial that you are advised properly regarding your rights and entitlements before finalising your property settlement with your former spouse, as the property settlement is the final determination and is irreversible.
The law states that a party to a marriage is liable to maintain the other party to the extent that the party is reasonably able to do so. In making a determination about whether spousal maintenance is appropriate, the court will consider various factors affecting both parties including but not limited to the financial resources of both parties and the capacity of the parties to obtain employment.
The law provides that a de facto relationship consists of two people living together on a genuine domestic basis that are not legally married to each other nor related by family. Questions often arise on the issue of what constitutes a genuine domestic basis. The legislation provides for circumstances in working out if persons have a relationship as a couple including but not limited to the duration of the relationship, the degree of financial dependence or interdependence between the parties and whether there is a child between the parties. It is important to note that a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship. Issues arising from a de facto relationship can have far reaching consequences further down the road and require careful insight into the impact of the law.
Mediation is an alternative dispute resolution mechanism intended to bring parties together in an attempt to resolve their disputes without having to go to court. Mediation can be compulsory or voluntary depending on the legislative requirements in each area of the law. The most common compulsory form of mediation is in relation to parenting orders known as family dispute resolution, where the law provides that the court must not hear an application in relation to parenting orders unless the relevant applicant files a certificate (section 60I certificate) by a family dispute resolution practitioner that there was a genuine effort for the dispute to be resolved through mediation.
Consent orders are a means to resolving and finalising an agreement between parties in a family law proceeding, without the stresses of protracted court proceedings and disputes. When parties come to an agreement regarding a family law issue, consent orders are filed with the court and made into formal orders which are binding on all parties. Whether it be regarding parenting rights or the division of property between the parties, consent orders are generally a more cost effective and less traumatic vehicle to formalising agreements between parties. Once again, it is crucial that legal advice is obtained prior to entering into consent orders as they are a formal court order and binding on the parties.
For victims of domestic violence, the court process regarding the offender's actions can be traumatic and uncertain. In certain situations, Police may view the evidence available to them as being incapable of proving the offender's guilt and will at times decide not to proceed with charging the offender. The higher burden of proof in criminal matters may restrict the Police from prosecuting the offender with a criminal act. In Applications for Apprehended Domestic Violence Orders however, the burden of proof lies on the balance of probabilities, and Police may appear on behalf of the victim in bringing the application for the protection of the victim. In the most difficult of times, it will be left up to you to file the application yourself in order to protect yourself from the offender. Such applications require careful analysis and it is imperative that you obtain the right legal advice before commencing any action in court.