Legal Consequences of Separation: Children and Property

Responses to problems in family relationships

Children

Best Interests of the child The welfare of children in a family breakdown

has been considered the primary concern of family law since 1975

1995 reforms to Family Law Act explicitly used the term “best interests” Based on UN CROC

long-term and short-term welfare concerns, consideration of physical and emotional

wellbeing, financial interests, moral, cultural, educational and religious and

health interests.

http://www.legalanswers.sl.nsw.gov.au/guides/hot_topics/families/family_law_and_divorce/best_interests.html

Amendments Family Law (Shared Parental Responsibility)

Amendment Act 2006  Biggest changes to Australian Family Law since

1975 Aimed to support divorcing parents in solving their

own problems (privately, or through mediation), rather than relying on the Family Court to do so

Also to encourage shared and cooperative parenting

Family Law (Family Violence) Amendment Act 20111. Protect child from harm2. Child’s right to maintain a meaningful relationship with

both parents 

Solving parenting disputes

Many couples can establish

their own agreement

may file the details of this agreement at

court, as a consent order

No requirement to lodge a

private agreement anywhere

Family Dispute Resolution

develop a parenting plan, with a mediator

ask a Family Court judge to

decide and hand down a

parenting order

Parenting Plans deals with the same issues that a court might

make orders about in a family law case eg when the child is to spend time with each parent and

how specific aspects of parental responsibility are to be shared.

can also state: how, when and why the parenting plan might change in

the future; what type of contact and discussion the parents will

have with each other about future issues to be decided about the child; and

how the parents plan to go about resolving any future disagreements.

Non-binding. A person cannot be forced to comply.

Consent Orders May be filed by couples who have established

a private agreement, but still have some animosity towards each other

Does not require a hearing  If one parent breaches a consent order, the

other party can apply to the court for help in enforcing ‘contravention proceedings’.

Parenting Orders Court-determined, if parents have been

unable to agree on their own. may deal with one or more of the following:

who the child will live with how much time the child will spend with each

parent and with other people, such as grandparents

the allocation of parental responsibility how the child will communicate with a parent they

do not live with, or other people any other aspect of the care, welfare or

development of the child.

no longer refer to concepts like ‘custody’ or ‘contact’.

emphasis on shared, cooperative parenting, Include clear definition about patterns and ‘types

of time’ that a child will spend with each parent (eg half of each school holiday with each parent).

can also deal with other specific aspects of parental responsibility Eg: where the child will go to school or what

medical treatment the child will (or won’t) have.

Non-compliance If a parent fails to comply with a parenting order

without reasonable excuse, a court may: vary the primary order order you to attend a post separation parenting program compensate for time lost with a child as a result of the

contravention require you to enter into a bond order you to pay all or some of the legal costs of the other

party or parties order you to pay compensation for reasonable expenses

lost as a result of the contravention require you to participate in community service order you to pay a fine order you to a sentence of imprisonment.

Property

No 'presumption of equality' after wife's win in $40m divorce case

The ruling increased the share of a former wife of a prominent Gold Coast property developer in nearly $40 million worth of divorce assets from 40 per cent to half.

The couple were married 29 years. The wife was the "homemaker and parent" for three children but remained involved in some aspects in the construction business while the man remained the "driving force behind it", the judgment by Chief Justice Diana Bryant and judge Ann Ainslie-Wallace on Friday said.

The husband, who left his wife for another woman, was granted 60 per cent of the couple's property assets because of his "ingenuity and stewardship" in creating the extremely successful business, in a previous ruling by The Family Court of Australia in July 2012.

But the full Family Court overturned the split, rejecting the husband's argument that his wife's  directorship was "passive" and he contributed more to the business after they broke up.

The husband's case did not give "appropriate credence" to the importance of the wife's role as homemaker and parent, the judgment said.

http://www.afr.com//business/no-presumption-of-equality-after-wifes-win-in-40m-divorce-case-20150420-1mp5k7#ixzz3ibi4XeKh

Family Law Act 1975

Family Law Reform Act 1995

Family Law (Shared Parental Responsibility) Act 2006

Family Law Legislation Amendment

(Family Violence and

Other Measures) Act 2011

Effective

Ineffective