Family Reports explained

In a contested matter regarding children, if the children are at a developmental stage that they can engage in meaningful conversation about the relevant issues, a court will require that there is a family report prepared to be considered by the court before making a final decision.

The report is prepared by a psychologist (sometimes social workers) who reads the court documents, meets with the parties and the children, speaks to other relevant people (schools, doctors etc.) and writes a report with their recommendation of what are the arrangements that will be in the best interests of the children.

Family reports often lead to parties settling because:

• it is powerful to hear recommendations from an expert
• issues are clarified
• people don't want to continue the proceedings
• reports helps people recognise what is in their children's best interests

If a matter doesn't resolve the report writer will attend court and be cross-examined during the hearing of a matter — which is often more of a conversation in the court with the judge testing thoughts about the best orders.

The court employs a small amount of these staff directly and contracts others but the vast majority are private reports where the parties pay the cost associated with the report, which can be significant.

A family report is a useful step in family law proceedings but it is important to understand that process and be well prepared for the report appointments.

10 things to know about divorce

10 things to know about divorce

When a married couple separate, the whole event is often described as a divorce.

However, divorce has a very specific meaning under Australian law. It is not a property settlement, it is not a separation, it is not sorting out the arrangements for children. A divorce is a court order ending a marriage. It is like the official tearing up of your marriage certificate. There are a lot of myths and misunderstandings around divorce, so here’s 10 key things to know about divorce.

1. For a divorce order to be made, your marriage must be broken down irretrievably.

That is, you will not resume married life. You’ve made up your mind and it is final.

2. You do not need to provide the court for a reason for your divorce.

The Family Law Act 1975 established the principle of no-fault divorce in Australia. Therefore, the court does not need to hear or judge the reason why the marriage has irretrievably broken down, that can stay between the two of you.

3. You must have been living ‘separate and apart’ for at least 12 months.

This is easiest to prove when one of you has moved out of the former matrimonial home and you have been separated ever since. It is common for people to been separated but have lived separately under the one roof for all or some of the 12 months of separation. To prove you were separated during this time, you must show there was a change in the way you related to each other after separation in comparison to beforehand. This could include:

• Sleeping in separate bedrooms;
• No sexual relations or intimacy;
• Not helping each other out with household chores such as cooking each other dinner or doing the other persons laundry;
• Having separate finances ;
• Not attending social functions or events together;
• Not socialising together.

Periods of Reconciliation

It is also common for people to attempt reconciliation after they have separated.

If the reconciliation lasts for a period of less than 3 months, you may add the periods before and after the reconciliation together to obtain the necessary 12 months.

However if the reconciliation lasts for a period longer than 3 months, the clock starts again for the 12 month period at the end of the reconciliation period.

4. You must demonstrate to the court that there have been reasonable arrangements made for the care and welfare of any children under the age of 18.

This involves explaining the arrangements made for the child in line with their:

• Living needs
• Schooling needs
• Health needs

5. If you are applying for a divorce within two years of when you got married, you will need to prove that you have attended counselling.

Visit the Family Relationship Centre website for a list of court certified counsellors that can give you a certificate demonstrating to the court you and your spouse have attended counselling.

6. You must have a jurisdictional connection to Australia in order to apply for a divorce here.

Either you or your to be ex-spouse must either:

• Regard Australia as their home and intend to live here indefinitely after the divorce; or
• Be an Australian citizen by birth, descent or by grant of Australian citizenship; or
• Ordinarily live in Australia and have done so for 12 months immediately before filing the divorce application.

As long as one of the above criteria is satisfied the Court will be able to hear your Divorce Application, regardless of where you were married or where you previously lived.

7. The Court will only focus on your divorce application.

Many people come to us thinking a divorce application also encompasses a property settlement, spousal maintenance, child support and interim orders. Although this may be the case on US TV shows, it doesn’t work that way in Australia. The court will only consider whether or not it should grant a divorce. The court does not have to have any regard for if both parties of the marriage want to get a divorce or if only one party does.

Property and children’s matters are separate court applications.

8. A divorce is not obtained overnight.

When the application is filed the Court will list it in court for a hearing. The date of the hearing will most likely be a couple of months away.

Provided that the court is satisfied that you have met all of the requirements a Divorce Order will be made but it does not take effect until one month and one day after the hearing.

9. Until your divorce is final, neither of you are able to get married to anyone else.

If you do, you will be committing bigamy which is a criminal offence in Australia. Perhaps just put a few more months into the wedding planning and wait for after the divorce has taken effect.

10. The Will you made during your marriage will now be invalid.

If you have a Will at the time the divorce is obtained certain clauses will be revoked because of the divorce. These clauses include any provision you have made for your former spouse, any grant of power you have given them or if you appointed them as an executor of your will.

Any clauses that appoint your former spouse as a trustee of a trust in which the beneficiaries of the trust include children of your former spouse will not be revoked. This means your former spouse will have control over money or property you have your children.

If you separate from your spouse and do not have a Will, your former spouse may still inherit if you die before a Divorce Order is issued by the Court. If you have never made a Will, only a Divorce Order will ensure that your former spouse will not be able to inherit your assets.

Rather than leave these matters to chance it is best to be on the safe side and make a new Will after your divorce to ensure your intentions concerning your former spouse are crystal clear.

Who pays for the extras?

At this time of year it feels like wallets are permanently open getting kids ready for another season of sport.

My quick calculation is that getting our 11 year old on the soccer pitch has included:

• Registration fees $190
• New boots $120
• New shorts and socks $67
• New mouth guard for those ever changing teeth $120

Add in the petrol for trips to Castlemaine and Moama during the season, orange duty, snacks, coffee on the sidelines — weekly sport quickly gets expensive.

So how does the law treat these extracurricular expenses for separated families.

Since the establishment of the child support system in the late 1980's the payment of money for the maintenance or support of children and their expenses falls within that system.

Child support has a formula that calculates the payment from one parent to the other based on income and the amount of time the child spends with each parent. The formula was originally based on studies about the costs of raising children incorporating the usual expenses. The safety net if the result of the formula doesn't lead to a just situation is a system of review through the Department of Human Services (formerly the child support agency), the Administrative Review Tribunal and ultimately court. Of course there is also the ability to reach an agreement between yourselves (a child support agreement).

So how does this system work for expenses related to sports, music or other extra-curricular activities?

First it is necessary to consider whether the expenses fall within the usual amount which would be covered in the usual cost of children covered in child support. Is it a usual day-to-day expense something that would be expected for most children. Then it should just fall within child support.

If the costs are extraordinary — equipment or travel or so on, then on the absence of an agreement you would need to be able to establish that those costs fulfill the grounds for varying child support under s117 of the Child Support Act. That section covers the grounds on which a departure from a child support assessment can be obtained and there are a number of provisions that could cover high sporting or extra curriculum costs.

The process involved is to seek a child support review and if unsatisfied with that to appeal to the Administrative Appeals Tribunal. If that doesn't get the desired result in limited circumstances there may be the opportunity for review to the court.

As you can imagine, the grand final would be played before all of this could happen.

What's the message in this then? In my family law experience the best way of resolving who pays what for extra curricular activities is to make a joint decision together. If you are unable to do this between yourselves some timely advice from us and maybe mediation is much more likely to get the right result. The alternative is complex.

I've separated. How do I make parenting arrangements?

In many instances, when parents separate, they are able to reach an amicable agreement about their parenting arrangements. When parents agree verbally on the arrangement for their children, such informal agreements are not always recorded in writing and the parties have generally not had the benefit of obtaining legal advice about the appropriateness of the arrangement. Such agreements are not legally binding or enforceable (although they can be used as evidence of the "status quo", that is they can be used as evidence as to what has been the arrangement which can be considered when determining what the future arrangements will be). Sometimes informal arrangements need tweaking over time and conflict can arise at that point too. Even if you are able to reach an informal agreement, it is greatly beneficial to receive advice so that an enforceable and long-lasting agreement can be drafted.

An agreement can be turned into a Parenting Plan. This is a written agreement which stipulates that parenting arrangements. They usually include parental responsibility, with whom a child lives, with whom and when they spend time with and arrangements for special occasions. A Parenting Plan can be drafted out of Court. Unlike Court Orders, a party cannot be found to be in "breach" of a Parenting Plan. Although they aren’t strictly enforceable, if the matter did proceed to Court, the evidence before the Court would include, the arrangements provided for in the Parenting Plan.

When parties reach an agreement the agreement can be made into Court Orders, known as Consent Orders. A lawyer would turn an agreement reached between parties (with or without lawyers’ assistance) into the correct format and the written agreement is then submitted to the Court for approval. No Court hearing is required, instead the Orders are considered "in Chambers". If deemed to be in the children’s best interests by the Court, the Orders are made and become legally enforceable.

If parties are unable to reach an agreement for parenting arrangements between themselves, with the assistance of lawyers or through mediation, then an Application can be filed in the Federal Circuit Court or Family Law Court of Australia seeking parenting orders. The Application would detail the orders sought and once filed, it is served on the other party, whom then file responding documents. Before an Application can be filed, parties generally have to have attended to attempted to attend mediation or Family Dispute Resolution Conference. There are circumstances where this requirement is negated, such as in matters involving family violence and urgent matters. Once the Application is filed with the Court, the Court will set a date for the first hearing. There is a lot of scope during Court proceedings for matters to be negotiated without the need for the Judge to make the final decision.

At OFRM we have Bendigo and Central Victoria’s largest Family Law team, headed up by our 2 Accredited Family Law Specialists, Marika McMahon and Sam McGee. All our family lawyers are able to assist you with your parenting arrangements when you call 03 5445 1000.

Spousal maintenance

Most people are familiar with the idea of child support — the assessment and payment of an amount by one parent to the other as a contribution to the payment of expenses for the children.

A less well understood system for payment between separated people is "spousal maintenance".

As the name suggests, spousal maintenance is not regarding payments for children but rather a contribution to the expenses of one person of the relationship to the other.

The basis of spousal maintenance comes from the concept that the duty in marriage (or defacto relationship) to maintain your spouse does not end on separation. It is payable when one party cannot support themselves after the relationship has ended.

Unlike child support, spousal maintenance isn't administered by a government agency. Rather it is a legal right that can be determined and enforced by a court if parties can't agree.

For a person to be entitled to spousal maintenance 2 key elements must be met:

1. The person claiming spousal maintenance must have a need to receive such maintenance to support themselves
2. The payer must have the capacity to make such payments — that is their income level must enable them to pay such maintenance after they have met their own basic needs and paid child support

You have probably twigged that the combination of those factors means spousal maintenance only happens in a minority of matters. While many people could easily establish they can't support themselves, it is not common that the other person has the capacity to pay.

Unlike child support, spousal maintenance isn't worked out by the application of a formula, instead it is more subjective looking at the need and the capacity to pay and ordering a specific amount.

The payment of spousal maintenance can happen in a variety of ways. There can be urgent spousal maintenance — often useful when separation means a party without their own income is cut off from finances. Interim spousal maintenance will occur while family law proceedings are happening and can be an ongoing amount paid weekly, fortnightly or monthly or a lump sum.

Spousal maintenance can continue to be paid for a specified time after people reach a property settlement — say for a year or two while a person retrains. More commonly spousal maintenance is finalised at the time of a final property settlement with the payment of a lump sum or included in the assets a party keeps.

If separation leaves you without the ability to support yourself you should seek advice from our Family Law team about whether you can obtain spousal maintenance — speak to one of our family lawyers by calling 03 5445 1000.