Tuesday, 16th of January, 2018

Family Law

Relationships

Introduction

 

Family Law is a large body of law that covers many areas of family relationships. Family law governs areas of our lives such as marriage, relationships, divorce, child support, custody of children, division of property, and adoption. It is an important area of the law, and a fluid one. Family law is not a static body of law, and as society's attitudes change toward relationships, so does the law. In the past, same-sex relationships did not receive recognition at law. Now, although not permitted to marry, same-sex relationships are recognised by areas of the law, from adoption to property settlement. Changing standards are reflected nowhere as clearly as in the area of divorce law. In the past, divorce required fault on the part of one or both parties, now divorce requires there only to be irreconcilable differences, and 'Do-it-yourself' kits are available online for fast and cost efficient divorce. 

Family law is one of the most important areas of law, and one of interest to everybody. Family relationships affect us from birth to death, and family law is there to provide rules and procedures for every step of the way, in one form or another - from registration of birth to settlement of property and assets at death.

This section focuses primarily on the law surrounding the family unit - care of children, changes in relationships and the division of property and assets when family circumstances change.

Family law is changing all the time. There is always pressure from lobby groups to take account of different factors – Father’s Groups, Mother’s Groups, Children’s Rights Groups. All of these seek a voice in family law, and the law will often change as it attempts to reach an ideal arrangement for resolving family issues where separation and divorce affect the welfare of a child or children. 

De Facto and Same-Sex Relationships

Tasmanian law: significant relationships

De facto relationships are called ‘Significant Relationships’ under Tasmanian law. This includes same-sex couples. By registering a relationship, and receiving a Deed of Relationship, a couple have immediate access to relationship rights, and do not need to prove the existence of the relationship to a court.

The Relationships Act 2003 (Tas) provides for the registration of other types of relationships that will attract certain rights much like significant relationships. These are called ‘caring relationships’, and have to do with the provision of domestic support and personal care between two people. People in significant relationships can access the Family Court and Federal Circuit Court to resolve disputes concerning property and financial resources, as well as children, while those in a caring relationship can access the Tasmanian Magistrates Court and Supreme Court to resolve property disputes. The Family Court of Australia (FCA) and the Federal Circuit Court (FCC) recognise significant relationships.

Federal law: de facto relationships

Under the Family Law Act 1975 (Cth), de facto relationships are still called ‘de facto relationships’. Whilst same-sex marriage is not recognised in Australia, amendments to federal law in Australia mean that same-sex couples are recognised as de facto couples, and have the same rights as de facto couples. Eighty-four Commonwealth Acts were amended to include same-sex couples in the rights associated with heterosexual de facto relationships. Important areas of amendment included: tax, superannuation, PBS and Medicare benefits, aged care, veteran's entitlements, social security, immigration, evidence, child support, workers compensation, employment entitlements and family law.

Partners in de facto relationships who separated after 1 May 2009 can now access the Family Court of Australia and the Federal Circuit Court to resolve disputes about property or financial resources, as well as issues to do with the care and control of children. In order to establish a de facto relationship to the satisfaction of the court, the relationship must have been registered, or the relationship must be established as being of 2 years duration, or there must be a child of the relationship. Partners who separated before 1 May 2009 will still have any issues around children resolved under the Family Law Act 1975 (Cth) (FLA), but property disputes will go to state courts, unless the parties agree to have the financial issues resolved under the FLA.

Marriage

Marriage - The Basics

The law regulating marriage in Australia is a federal law, and is contained in the Marriage Act 1961(Cth). The Act sets out who may marry, who may perform the marriage ceremony, how it is to be conducted, and where and when it may be performed. Sections given are from that Act unless otherwise indicated.

Who May Marry?

Amendments to the Marriage Act 1961 (Cth) which commenced on 1 August 1991 introduced a uniform legal age for marriage (previously 18 years for males and 16 years for females.) The marriageable age for females and males is 18 years (s11).

Between the ages of 16 years and 18 years young men and women need the consent of their parents/guardians and the authorisation of a judge or magistrate in a state court to marry. The court needs to be satisfied that the circumstances are "so exceptional and unusual as to justify the making of the order" (s12 &13). The court may dispense with the parents' consent in certain cases (s13). The young person must produce a certificate showing that the young person has received marriage counselling.

Procedure

A marriage can take place at any time and in any place. Marriages usually take place in a church or home, or a park but marriage services in theatres, vineyards, and halls are not uncommon. Marriages have been conducted on speed boats and planes, and in other unusual places.
Australian law only recognises three ways of getting married:

  • civil marriage;
  • religious marriage; or
  • foreign marriage (s88D)

In each case, the person who performs the ceremony is known as the marriage celebrant, even where the celebrant is a priest or minister of a church. Civil marriage celebrants charge a fee for the marriage service, currently around $400. Celebrants of religious marriages usually receive a donation.

Foreign marriages are those conducted outside Australia according to the law of the country where the marriage takes place. There are some marriages that Australian law won’t acknowledge – this is usually bigamous or polygamous marriages – marriage of more than one spouse, incestuous marriages, or marriages where the bride is a child under the age of 16.

Notice of intention to marry must be given to the celebrant not more than six months and not less than one month before the date of the intended marriage. The notice must be signed by the husband and wife in the presence of the celebrant after the marriage. Birth certificates must be produced and statutory declarations signed as to the parties’ existing marital status (s42).

Names

There is no legal requirement on either party to change their name on marriage.

Marriage Certificates

Proof of marriage is provided in the form of a marriage certificate. It is required for different purposes such as obtaining passports or as evidence in probate cases. Proof of marriage is required in all applications under the Family Law Act 1975 (Cth) and in many situations certificates or copies must be filed with certain other documents at a court registry.

A marriage certificate is prepared on the same day as the marriage by the person performing the ceremony. The certificate is signed by:

  • the husband and wife;
  • the person celebrating the marriage; and
  • two witnesses who must be 18 years of age or over.

The certificate must be forwarded by the celebrant to the Registrar of Births, Deaths and Marriages within 14 days for official recording of the ceremony (s50(4)(a)(i)). If duplicate certificates are prepared, the parties may receive a copy after the ceremony. Three copies are usually made after the ceremony.

What is recognised as a marriage?

Same-sex relationships

Same-sex relationships are not recognised as a marriage under Australian law, unlike in Canada, the United States, the United Kingdom and the Republic of Ireland. Australia is far behind other common law jurisdictions in this respect.

Foreign Marriages

All marriages made outside Australia must be evidenced by an official extract from the foreign registry. Proof of these marriages is needed, for example, in divorce cases. If the certificate is in a foreign language, the certificate must be filed with a translation and an affidavit by the translator that they are competent to translate the certificate. The Family Court will not usually accept a translation by a person who is not a qualified translator or interpreter or who is a close friend or relative of either spouse.

The Department of Immigration will arrange to translate marriage certificates and the supporting affidavits (a fee is payable). If foreign marriage certificates are unavailable, the Family Court is empowered to accept oral evidence of the parties as sufficient proof of the marriage.

Any marriage made overseas to which neither party is an Australian citizen will be recognised in Australia as a valid marriage if made according to the laws of the country in which the marriage was made.

Foreign marriages, that is, marriages according to the laws of a foreign country, are valid when made in Australia in the presence of consular or diplomatic staff from the appropriate countries. Such marriages will not be valid if the Australian rules against prohibited relationships are breached (s23, Marriage Act 1961 (Cth)). An example of a prohibited relationship is one between a brother and sister or between a person and their ancestor or descendant.

Polygamous marriages and other prohibited relationships

Australian law prohibits blood relatives from marrying and this includes adopted as well as natural children. Cousins are not prohibited from marrying one another. Polygamous marriages (that is, a marriage which permits a person to have more than one husband or one wife) are not valid in Australia whether made within or outside Australia (s23(1)(a)). However, a party to a polygamous marriage made outside Australia (for example, in an Islamic country) may obtain matrimonial relief such as custody, property settlement, and injunctions under the Family Law Act 1975 (Cth).

Australians may marry whilst overseas provided the ceremony is witnessed by a marriage officer (usually an Australian Consular official) authorised under the Marriage Act 1961 (Cth). These marriages are recorded in Australia in the Register of Overseas Marriages. Australians wishing to marry overseas should consult local consular officials.

Duties, Responsibilities and Other Matters

Property

Property belonging to a husband or wife before their marriage generally remains their individual property after marriage. This includes furniture, bank accounts, vehicles and other household goods. There is no legal requirement to transfer property into joint names. Property acquired after marriage also belongs to the person in whose name it was bought or who paid for it. It is only on the breakdown of the marriage that the Family Court of Australia or the Federal Circuit Court can make orders to vary the ownership of property of the husband and the wife.

When buying homes, units or land, it is common for the married couple to buy the property as co-owners. This gives security because it is difficult to dispose of co-owned property without the knowledge of the other, even if only one party provided the finance. In addition, the property of both parties may provide security for one or both of them for a mortgage or loan.

Sexual Relations

Marriage itself gives no right to a wife or husband to sexual intercourse. The old rule that a husband could not be convicted of raping his wife no longer exists.

Wills and Estates

Unless a will is made in anticipation of a particular marriage, marriage revokes a will. This is because the law presumes that spouses intend to provide for each other. Thus, the parties should make fresh wills after marriage to suit their intentions. Where a party dies intestate in Tasmania, the intestacy can create problems for the surviving spouse who must apply to the Supreme Court for Letters of Administration and appointment as executor over any assets.

Divorce also revokes a will made at any time. Unless a new will is made the estate will be inherited by the next-of-kin of the deceased. As part of the process of dissolving their economic partnership, separated or divorcing couples should make new wills. These wills should be expressed to be in contemplation of divorce so that they are not subsequently revoked on divorce.

Parties living in permanent de facto marriage relationships are strongly advised to make wills for each other, especially where other possible beneficiaries are alive, such as children to a prior marriage.

Family Planning

The addition of children to a marriage can put severe financial and emotional strain upon the relationship between parents. Contraception can be used to plan a family. The use of contraception is not against the law in Australia, and advice about it can be readily obtained from local family planning clinics, general practitioners and gynaecologists, or the family planning clinic attached to a public hospital.

Abortion is not available on demand in Tasmania but it is available in certain circumstances. The laws regulating abortion differ from state to state and changed in Tasmania in 2002. In Tasmania the law states that termination of pregnancy by the competent use of instruments in the hands of a medical practitioner is not an offence if the termination is legally justified. This means that two registered medical practitioners have certified in writing that the continuation of the pregnancy would involve greater risk of injury to the physical or mental health of the woman than if the pregnancy was terminated. At least one of the doctors must specialise in obstetrics or gynaecology. The woman must give informed consent unless this is impractical. Informed consent can only be given where the woman has received counselling.

Property and Maintenance

Application

Part VIII of the Family Law Act gives the Family Court jurisdiction to settle property and maintenance matters between the parties to a marriage or former marriage. Superannuation is now considered property under the Family Law Act.

A divorce does not include the division of a couple's property. They must put in a separate application.

An application for a division of the matrimonial property can be made at any time after the couple has separated. However, once a divorce becomes absolute, a property application must be made within 12 months. For example, if a divorce is granted in Court on 10th January 2000 (decree nisi), and it becomes a decree absolute on 11th February 2000, a property application must be filed before 11th February 2001. The Court may allow a person to apply beyond this time limit if hardship on that party or the children can be established and a reason for the delay is given. This is called ‘granting leave to apply out of time’. It is best to apply within the period of 12 months after the decree absolute to save the cost of this application.

Legal aid will not generally be granted for these applications if the person is to receive money as a result of dividing the property, though aid may be granted subject to a contribution or a charge on the property being made on settlement in some limited circumstances.

An application for property division can be made by either party at the Family Court. The Federal Circuit Court has jurisdiction over property disputes under $300,000. The Family Court has jurisdiction over property disputes over $300,000.

Agreement Between Parties

Wherever possible, the parties to a marriage should attempt to reach their own agreement about their property arrangements. This may involve taking legal advice but will also save the expense, delay and worry of a lengthy property case in court which may take two or three years to be finalised and may cost many thousands of dollars. These agreements can be made during separation and before the divorce is obtained. The agreements can be formalised by way of Consent Orders which are filed in the court and have the benefit of finalising property matters, and are enforceable.

Property

The Family Home

 

The main item of property which most people will own will be a house, or home unit or block of land. Ownership of a house and land will normally be in one of the following three forms, Joint Tenancy, Tenants in Common or Single Ownership.

Joint Tenancy

This is the most secure form of ownership for both parties in a marriage or de facto relationship. One spouse cannot sell the property without the other’s permission and on the death of one of them, the other automatically has ownership passed to them.

Tenants in Common

Here each spouse has a particular, usually half, share in the property. A spouse cannot sell the property without the other’s permission but ownership does not automatically pass to the other spouse on the death of one of them. Each spouse has the right to will their share to whoever they wish on their death.

Single Ownership

The house will sometimes be registered in the husband’s or wife's name alone. During the course of the marriage, the house will be treated as belonging to the spouse in whose name it stands. That spouse can mortgage it or sell it without the other’s permission. On separation, the spouse who does not own the house can protect their interest by applying to the Family Court to seek a court order (called an injunction) to stop the other spouse from selling the house or getting a loan on it without the non-owner spouse knowing about it. On the breakdown of the marriage, a spouse can be given all or part of the house by the Family Court even though it is in the other spouse's name.

Occupancy and Sale

 

Right of Occupancy

Regardless of whose name the house is in, a married person is entitled to live in the matrimonial home unless there is a court order requiring the person to leave. This applies equally to the husband and the wife. If both parties are in the house, the Court can order one party to leave. If the parties are only separated the court can order one party to leave the premises, upon a succesful Sole Occupancy Application. The court can also order that the party living there is to continue in occupation. In deciding who should have occupation, the Court considers the needs of both parties including who is caring for the children. The Court can give occupation of the home to one party even if it is in the other party’s name. The Court may be reluctant to order a party to leave the home unless the needs of the other party clearly outweigh their right to occupy. Occupancy does not affect the ownership of the property.

Threats to Sell

If a party is threatening to sell, give away or mortgage the home or any other property during the separation and before the final property order, the other party can stop this by applying to the Court for an injunction to restrain the other party from dealing with the property. It does not matter that property is in the sole name of the party who wants to dispose of it.

Division of Property

There are no automatic rules about how property is to be divided. A party is not necessarily entitled to 50 per cent of everything nor is a party entitled to keep everything that is in their name or everything which they have paid for. The Family Court has very wide powers to divide the property and in some cases the debts of a marriage in whatever way it thinks is fair and equitable. The general principle is ‘what is fair in the circumstances’.

It is important to remember that no two cases are the same and separating couples should get legal advice on their case from a lawyer who specialises in family law.

Selling the House

If there is enough other property, the Court may give one party the home, especially if they are looking after the children. However, if there is no other way of giving each party their fair share, the Court will order the sale of the home. In some cases the Court may postpone the sale and let the parent caring for the children stay in the house until the children grow up, if this is not too far in the future.

 

Property, Property Orders and Property Claims

For the property settlement, all property owned by one or both spouses will be considered as being joint matrimonial property. That is, all property owned by the parties whether individually or in joint names is taken into account by the Family Court. Any property in company names or trusts will be treated as property when it appears that a spouse enjoys the benefits of ownership of the company or trust property.

Property includes:

  • property each party owned before the marriage;
  • property purchased during the marriage, including real estate, cars, insurance policies, bank moneys, shares, boats, furniture and so on;
  • gifts and inheritances received by each party;
  • assets and good will that a party has built up in a business;
  • compensation awards and lottery winnings;
  • redundancy packages.

These matters will be considered as the financial resources of the party when the Court assesses their future needs.

Property which cannot be dealt with by the Court includes

  • future expectations under wills or trusts;
  • long service leave entitlements (unless those entitlements have been received or are about to be received);
  • actions for personal injury damages (unless the other party nursed the injured spouse through their injuries).

Superannuation

Superannuation is also considered as property and can now divided in a property order. It is wise to see a lawyer who is an expert in Family Law about this.

Property Orders

Property orders are considered to be final orders and can generally only be changed by the consent of the parties or if there has been a miscarriage of justice by reason of fraud, duress, false evidence, suppression of evidence or other circumstances (s79A, Family Law Act). Property orders can now also be changed if it is impracticable for the orders to be carried out, if one party has defaulted in carrying out the terms of the order or if circumstances concerning the children’s welfare have changed and this is causing hardship to the children or the party looking after them. It is not usually easy to prove a miscarriage of justice or impracticability.

The Effect of Death on Property Claims

 

When one party dies before the other party has instituted property proceedings, no property claim may be brought under the Family Law Act. The survivor may be able to claim a legal or equitable interest in property or assets of the deceased, or make a claim for provision from the deceased estate under the Testators Family Maintenance Act (Tas) 1912.

When a property application has been lodged but one party dies before the matter is completed, the proceedings may be continued by or against the deceased legal personal representative (i.e. the person looking after the estate). If the Court decides that property orders are still appropriate, these orders are enforceable against the deceased's estate (s79(8), Family Law Act).

If property proceedings are completed, but one party dies before the orders are carried out, the orders may be enforced against the deceased 's estate.

How Does the Court Decide?

Section 79 of the Family Law Act (Cth) gives the Family Court very wide powers to make property orders. This involves:

  • determining what property the parties own and its value;
  • considering what contributions were made by each party in the past; and
  • considering the present and future needs of the parties including their incomes and earning capacities, both actual and potential, the care of any children, and superannuation and other financial resources.

The Court may then order one party to transfer property to the other. It can also order the payment of a lump sum of money instead of property or order that one party repay a debt to a third party.

The Future Needs of the Parties

The Court decides whether more property should be given to the party who has the greatest need in the future. It will look at matters such as:

  • the age and health of both parties;
  • the ability of each party to support themselves in the future;
  • whether either party is supporting another person, such as children or a relative;
  • whether a party is being supported by someone else, such as a new partner, parents, and so on.

These matters will also be considered by the Court in deciding whether or not to grant maintenance of the other spouse.

Contributions

The Court looks at the history of the marriage and determines how much each party has contributed to the acquisition, conservation and improvement of the property. The direct contributions a party makes may include:

  • money contributed during the marriage, for example, wages, income from a business or investments;
  • property owned at the time of marriage;
  • gifts and inheritances;
  • work done on the property, for example, building, renovating; and
  • efforts put into building up and running a business.

The efforts of the party who worked in the home looking after the children and doing the housekeeping are taken into account as ‘indirect contributions’ to the property. This is because by staying at home, this party has freed the other party to work. Therefore a home-maker can be entitled to a share of the property even though they have not paid any money towards it or have earned no income during the marriage.
In many marriages the indirect contributions of the home-maker equal the direct contributions of the income earner. This may not be the case where the marriage was short or the direct contributions of one party are large (see the examples below).

Contributions may also be negative if one party wasted the resources of the marriage. For example, in the case of Kowaliw & Kowaliw (1981) FLC 91-092, the Court considered that the losses incurred because of the reckless negligence, alcoholism and gambling of one party did not have to be shared by both parties. In Doherty & Doherty (1996) FLC 92-652, the Court considered that the wife's contribution as home-maker and parent to have been increased and the husband's contributions diminished because of the husband's drinking habits and violent and aggressive behaviour toward the wife and children.

Example - Division of Property

The following hypothetical case illustrates how this process works. Many cases will not be as simple as this example and parties will need to get advice from a lawyer who is experienced in family law.

Mr. and Mrs. Smith separated after 12 years of marriage. They did not have much property when they married but they saved enough money out of Mr. Smith’s wages to pay off a house. Mrs. Smith worked in the home during the marriage to look after her husband and their children now aged 6, 8 and 10. The children live with Mrs. Smith and her only income is parenting payment. Mr. Smith does not have any superannuation entitlements.

The Court would probably consider that Mrs. Smith’s indirect contributions as home-maker equalled her husband’s direct contributions and that she is entitled to 50% of the house. However, as she has to look after the children in the future and only has a small income, and little likelihood of ever earning as much money as Mr. Smith, the Court is likely to give her more of the property. It may order that say, 65% property be distributed to Mrs. Smith because she has the care of the three young children and the husband has an ability to earn more money. Mrs. Smith could also receive a greater share of the property to balance Mr. Smith's superannuation in the event that Mr. Smith did have superannuation entitlements.

Agreements and Consent Orders

Under the Family Law Act parties can make enforceable agreements about the care of their children, division of their property and payment of maintenance. Private agreements can become enforceable in a number of different ways. The easiest and most effective way is to make orders by consent. The Act does recognise two other types of agreements - both somewhat confusingly called maintenance agreements. One is a section 86 agreement and the other a section 87 agreement. These agreements are not used much now because of the introduction of simple consent order procedures.

It is very important to obtain legal advice before signing any type of agreement. Consent orders and maintenance agreements all have the effect of making private agreements enforceable as if a judge had made the orders.

Consent Orders

Consent orders are orders of the Court, which are just as binding and enforceable as any order made after a final hearing. The major difference is that consent orders are based on the agreement reached between the parties. Consent orders can be made by applying to the Family Court on an ‘Application for Consent Orders’. It is preferable for parties to have had independent legal advice before agreeing to the terms of a consent order application and parties must be careful that the actual terms of the orders are in a proper legal form.

The Family Court will make the consent orders after a Registrar of the Court has looked at them and decided that they represent a just and equitable settlement of the property or are in the best interests of the children if they include parenting orders. Usually, if both parties have received independent legal advice, the Registrar will make the orders. If one or more of the parties do not have a lawyer, the Registrar may require additional information about the parties' financial situation or parenting arrangements. Consent orders may also be made at any time during court proceedings when an agreement has been reached.

Pre-Nuptial Agreements/Binding Financial Orders

People who marry may want to document their agreement about future conduct, organisation of finances and/or property division during the marriage and in the event of a separation. Financial agreements made before marriage may be enforceable in the Family Court. Provided that the circumstances of the parties have not changed dramatically since the agreement was entered into and the agreement has been entered into after both parties have had independent legal advice in relation to a range of matters, then the Court may enforce the agreement. The Court will not enforce agreements where material changes in circumstances have occurred relating to a child of the marriage, or if conduct of one party to the agreement was fraudulent or unconscionable or the agreement is unenforceable. Pre-nuptial agreements may be particularly helpful if the marriage is a second one and children of the former marriage exist. It is strongly recommended that each party receive independent legal advice prior to signing any agreement.

Spousal Maintenance

 

 

Spousal Maintenance and Maintenance Agreements

 

‘Spousal Maintenance’ is an amount of money paid by one party to a marriage for the financial support of the other party or their children. It is not an automatic payment upon separation, and a separated woman or man who is not caring for children and who is able to work will probably not be awarded maintenance.

Child support is the same as maintenance and is the name for the maintenance paid to the person who looks after children by the party who does not. People who separate or have a child must approach the Child Support Agency for child support as the Family Court has no power to deal with the support of or maintenance for these children.

Agreements about a property settlement and maintenance can be made by the parties to the marriage and they can have the same effect as a property or maintenance order. They are known as ‘maintenance agreements’, and there are two types of agreements:

  • agreements which only need to be registered in the Court (s86 agreements); and
  • agreements which are in substitution for the rights of the parties under the Family Law Act and which must be approved by the Court (s87 agreements).

To obtain maintenance from the other party, a person will have to show that they are not able to support themselves properly because:

  • they are caring for the children; or
  • if they are not caring for the children, they are unable to obtain work, because of old age or sickness, or they cannot support themselves for some other reason.

In addition, the person applying for maintenance would have to show that the other party was reasonably able to pay them maintenance (s72, Family Law Act). In deciding whether to make a maintenance order, the Court is required to take into account the following factors, among others:

  • the parties’ income and financial resources and their ability to obtain work;
  • their financial needs and obligations;
  • their age and health;
  • whether either party is caring for a child under 18 years;
  • a standard of living that is reasonable in all the circumstances once the parties have separated;
  • the extent to which the party seeking maintenance has made a contribution to the resources or earning capacity of the other party;
  • the length of the marriage and the extent to which it has affected earning capacity;
  • the need to protect a woman who wishes to continue her role as a parent; and
  • the financial circumstances of cohabitation if the party seeking maintenance is living with someone else (s75).

How much a person will be entitled to receive in maintenance from their spouse after applying these rules will depend upon the individual circumstances of the case. The Court is required to disregard the entitlement of a person to an income-tested social security payment when considering their application for maintenance. For example, if a woman's only income after separation is parenting payment, and she asks the Court for maintenance, the Court will look at her needs and her husband's ability to pay for those needs initially as if she had no income at all.

A spouse may apply to the Family Court for a maintenance order against the other spouse at any time during their marriage or in the separation period leading up to the divorce. An application may also be made during the 12 month period after the divorce (s44(3)). An application may generally not be made more than 12 months after the divorce. Applications after this time can only be granted by leave of the Court where the judge is of the opinion that hardship to the spouse and children would occur if leave were not granted. This restriction does not apply to an application for maintenance of children, which can be made at any time.

As with property disputes, spousal maintenance cases will be decided on their particular facts, and it is difficult to generalise about how much maintenance will be payable in ‘normal’ circumstances. The Court will consider the matters referred to in sections 72 and 75(2) of the Family Law Act bearing in mind the basic issues, namely the need of one party to receive maintenance and the capacity of the other party to provide it. The case studies above are presented in simplified form and indicate some of the factors which the Court will take into account. However, it should not be assumed that similar facts will necessarily result in similar decisions.

Section 86 and Section 87 Agreements

Section 86 Agreements

Section 86 agreements may be written by the parties themselves and may cover property and maintenance matters. There is no specific form for the agreement except that it should be a deed and therefore witnessed by a justice of the peace or a solicitor. There is no need to approach a judge for approval and the agreement can be registered with the Court by filing a copy of it together with an affidavit by one of the parties identifying the agreement and swearing that the parties signed the original.

After an agreement is registered, it has the same effect as a court order and is equally binding on the parties. It can only be varied if there is a change of circumstances or if fraud or undue influence in the making of the agreement can be proved (s86(3)). The registration of a section 86 agreement does not prevent the later institution of property proceedings under section 79, subject to the time requirement of section 44, if this is relevant.

Any property transferred in accordance with a section 86 agreement is not subject to stamp duty if the parties are divorced. If the parties are not yet divorced, the duty is refundable on showing the divorce decree to the Commissioner of State Revenue.

Section 87 Agreements

Section 87 agreements go further than those under section 86, as they operate in substitution for any rights of the parties to claim maintenance or property in the future or to have their property rights against each other decided in Court. A section 87 agreement is therefore a final agreement on financial matters between parties and needs to be approved by the Court before it can have any legal effect.

Approval will be given by the Court where the financial provisions of the agreement are considered to be ‘proper’. In deciding this, the Court will have regard to whether the agreement appears to be a fair adjustment between the parties, whether the interests of children under 18 years are protected and whether the parties fully understand that it is in substitution of other rights.

Once an agreement is approved, the Court may only revoke approval if both parties agree, or if it can be shown that there was fraud or undue influence involved in the making of the agreement or the obtaining of approval. There are two exceptions to the bar against future claims. These are referred to in section 87 (4A) and (4C). The second refers to claims for child maintenance. The first allows claims for maintenance by a spouse if the Court is satisfied that when the agreement was approved, taking into account what was in the agreement, the spouse could not have supported themselves without a social security payment.

Variation and Urgent Payments

Varying Spousal and Non Child-Support Agency Maintenance

An order for maintenance for a spouse or a child may be varied by the Court at a later date if the Court is satisfied that such an action is justified because:

  • the circumstances of either party have changed;
  • the cost of living has changed to a sufficient extent to justify variation (provided that at least 12 months have passed since the date of the order or the last variation);
  • material facts were withheld from the Court on a previous occasion, or material evidence previously given was false; or
  • the last order was made by consent and the amount is not proper or adequate (s83).

If the Court considers the order should be varied, it may increase or decrease the payments or suspend or discharge the order. A person who cannot make regular maintenance payments may apply for a variation of a court order if their circumstances have changed since the order was made. In the case of the variation of a child maintenance order, all except the first point above apply. In these matters the Court is only required to consider a change in the circumstances of the person liable to make payments and not necessarily those of the other parent.

Urgent Payments of Spousal Maintenance

In some cases a spouse or child of the marriage may be in such immediate need of financial assistance that they cannot wait until the Court decides the question of maintenance or the Child Support Agency starts collecting child support in the normal way. Upon an urgent Interim Application, the Court may then order payment of such sum(s) of money as it considers reasonable for urgent maintenance until the case is finally decided or until the child support agency payments are made.

A maintenance order for a spouse ceases upon the death of that spouse or upon that spouse’s remarriage, unless the Court makes a continuation order (s82(1)Family Law Act). Such an order would be made in those (rare) cases where, for instance, the wife was formerly married to a wealthy man and then remarries a man in poor health or poor financial circumstances. Maintenance payments automatically cease on the death of the payer unless there is a specific continuation order.

Case Studies - Maintenance

The Browns

Mr Brown was employed in a secure job with a high income and generous superannuation benefits. He left his wife, Mrs. Brown, after 28 years of marriage and later remarried. The three children of the marriage have all left home and are financially independent. Mrs. Brown is undertaking a training course in naturopathy which will lead to job prospects in two years, although she suffers from a kidney complaint which will restrict her working hours. The judge has ordered that the matrimonial home should be sold and the proceeds divided evenly. As for maintenance, the following matters need to be considered:

  • Mrs. Brown's health;
  • her inability to gain employment for at least two years;
  • the likely accommodation required by Mrs. Brown;
  • Mr. Brown’s obligations to his second wife;
  • Mrs. Brown's ineligibility for a payment (studying full-time but her course is not recognised for the purposes of Austudy);
  • her contribution to her husband’s current financial situation;
  • Mrs. Brown's lost expectations of sharing in Mr. Brown’s retirement benefits;
  • the effects of 28 years of marriage on Mrs. Brown’s earning capacity;
  • the possibility of Mrs. Brown remarrying; and
  • the effect of the order concerning the matrimonial home.

The judge made an order that Mr. Brown should pay $1000 maintenance per month and a lump sum of $10,000 to help Mrs. Brown find alternative accommodation. The Judge indicated that Mr. Brown would be able to ask the Court to reduce or cancel the $1000 per month order once Mrs. Brown was able to take up employment.

The Whites

Mr. and Mrs. White were married in 1986 and separated in 1994. Mr. White was ordered to pay $70 weekly maintenance for Mrs. White who was unemployed. There were no children. The parties were divorced in 1996. Mr. White then remarried and had a child by his second wife. In 1998, Mr. White applied for the maintenance order to be varied, on the basis that his financial position had deteriorated and that his second wife could not work because of the child. Mrs. White at this stage was capable of earning $200 per week, but was not in fact working. The Court decided that, given the first wife’s capacity for employment, the maintenance payable be reduced from $70 to $20 per week.

Common Misconceptions

If I leave I'll lose my rights

There are many mistaken beliefs about property and financial entitlements on the breakdown of marriage. These cause confusion and often make it difficult to reach a fair and just settlement. Many people believe that the person who leaves the children or the matrimonial home will lose their rights to a share of the property. Behind this is the idea that whoever abandons the marriage deserves nothing. This is wrong. Each partner in the course of the marriage has earned a share in the property and does not lose it simply because they decide it is no longer possible or desirable to remain in the house or the marriage.

I can keep inheritances and gifts

Again a spouse is not always entitled to keep gifts and inheritances from their family. It does not usually make much difference whether the gift from one side of the family was expressed to be for one spouse or both. In either case it will be seen as a contribution made on behalf of the person whose family made the gift. As with pre-marital assets, the importance of gifts and inheritances decreases as they become mixed with other matrimonial property and as the other spouse contributes directly or indirectly to their maintenance or improvement. Where the gift or inheritance was received shortly before the separation, the spouse who received it will have a good argument that they should receive its full value in the division of property.

Women always get the best deal

What is not recognised by those who make this statement is that the amount women receive in a division of property often has to cover both themselves and their children. In the short term this may mean that the actual amount awarded to the woman and children will be greater than the man receives but studies here and overseas show that men do better in the long run. A man with his greater income earning and borrowing capacity — and without children to care for — is able to build quickly on his share of the property. A woman who has residence of the children may not wish or be able to secure full-time employment. If she has been involved in full-time childcare during the marriage, she may not have the necessary skills to find a good job. A divorced or separated woman’s capacity to support herself may be a long way below her husband’s and the Court will often give women marginally more than men to compensate for this and to meet the greater needs of women and children. In the case of younger couples where women do have job skills or careers and where there are no children, women do not receive more than men in the division of property.

I owned it before marriage so it's mine

Just because a spouse owned a particular piece of property before marriage does not mean they will automatically have total rights to the property, or its monetary value, when the marriage ends. The property will be taken into account as a contribution by its owner, but over time it is assumed that both spouses will have contributed directly and/or indirectly to its maintenance or improvement. In other words, the longer the marriage, the less important are pre-marriage contributions in the final division of property.

I worked hard for this business so it's mine

Many spouses who have worked hard during a marriage to build up a family business do not consider that the other spouse is entitled to a share of it. They claim that the other spouse never worked in the business or only contributed as an ordinary employee and should only be paid the equivalent of wages. But where the other spouse has answered the telephones, arranged work for the business, kept the books or entertained business associates, the Court will consider these efforts as a contribution to the success of the business. Even where the other spouse has never worked in the business, if they have taken on the responsibilities of caring for the house and children they will be regarded as having made an indirect contribution by freeing the other spouse to put more time and effort into the business. Often the other spouse will have worked in another job to provide family income at times when the business was not as profitable and this too will be regarded as a contribution. This does not mean that the business will have to be shared equally between the spouses. The Court may give greater weight to the business spouse’s direct contributions in some circumstances.

Parental Responsibility - Who the Child Lives With and Communicates With

Who Can Apply to the Court?

Most court cases are between the parents of the children. However, under section 65C of the Family Law Act, an application for a parenting order may be made by:

  • either or both of the child’s parents;
  • the child;
  • a grandparent of the child; or
  • any other person concerned with the child’s care, welfare or development.

How to Apply

Applications concerning children are made to either the Family Court or Federal Circuit Court. The initiating applications are available online.

There are also Do-it-Yourself kits available for Consent Orders, which are applicable when seeking parenting orders.

Terms of Reference

There are many terms associated with parental responsibility. These are provided below.

Equal shared parental responsibility

The Family Law Act now presumes that parents, except in cases where there are reasonable grounds to believe that there is child abuse or family violence, have equal shared parental responsibility when making parenting orders. This presumption can be rebutted with evidence that it would not be in the best interests of the child (s61DA, FLA).

Who the child lives with

This was formerly known as custody. It refers to an order that the child live with a particular person, usually but not necessarily a parent. A ‘lives with’ order does not give any other rights or obligations. The order may say that the child lives with one person for a defined period of time and with another for another period of time. In order to have the same authority that an old custody order gave to the custodial parent, there must also be a specific issues ‘order’ to give day-to-day parental responsibility to the parent who holds the ‘lives with’ order.

Who a child spends time with and communicates with

This was formerly known as access or contact. It refers to the time that a child and the parent they are not living with spend together. ‘Spending time with’ is based on the right of a child to maintain a meaningful relationship with a non-‘lives with’ parent, and with other significant people in the child’s life. A ‘spends time with’ order may be with other people besides a parent, e.g. grandparents. An order can also be made allowing the time and method by which the child communicates with the ‘non-live with’ parent, for example – skype, telephone and email.

Specific Issues Order

This refers to an order about anything besides ‘lives with’, spending time with’ or child support. A specific issues order can say which parent has responsibility for the long-term or day-to-day care, welfare and development of the child. It may also be about:

  • particular needs of the child, e.g. medication;
  • conditions for ‘time spent’ such as no consumption of alcohol;
  • specific decisions in a child’s life about school, pierced ears, ballet lessons, football codes, hairstyles etc.

Family Reports

Family Reports can be ordered by the Court to assist it in making any decision about children (s62G, FLA). The report will usually cover the children’s relationship with each parent and any new partner, what is being offered by each parent in both material and emotional terms and any wishes the children express about which parent they would prefer to live with.

A family report will only be ordered after attempts at reaching a conciliated agreement with the assistance of the Family Consultants and registrars have failed. Usually, the Court has given a date for the final hearing of the matter. In many cases the evidence of each parent is sufficient to put the options and difficulties before the Court. In more difficult cases an independent assessment of the family relationships and problems is required. Family reports are often used to investigate the wishes of the children where the children have apparently been saying contradictory things to each parent or they have been reluctant to say anything at all about their preferences.

The family report will be prepared by a Family Consultant who will not have had any previous contact with the parties, and is not permitted to discuss the case with any other Consultant who has already seen the parents or the children.

A family report is not binding on a Court. After listening to all the evidence and each parent in the witness box, the judge may reach a view opposite to that of the Consultant. A family report is only one piece of evidence. It is, however, a very important piece of evidence. Courts rely on the expertise of the Family Consultants who deal with problems of separated families on a daily basis. If the report favours one parent, it can be very difficult for the other parent to persuade the Court to come to a different conclusion. The Family Consultant can be called to court by either parent’s lawyer and be asked to explain the report just like any other witness.

Instead of ordering a family report, a Court may order a report from an outside expert. Reports on the children prepared by psychologists, psychiatrists or social workers are only accepted by the Court if the Court has ordered the expert to prepare a report or has given special leave to a parent to submit another report which would require the child to see another specialist (s102A, FLA). Often, the Independent Children’s Lawyer will ask the Court to appoint an expert psychologist or psychiatrist to examine the child and present a report to the Court rather than present a family report (s68M, FLA).

Parenting Orders

How a Judge Decides

Courts are required to consider a child or children spending equal time or substantial and significant time with each parent. This is subject to considerations of practicality and the best interests of the child (s65DAA).

The factors a Court must consider when deciding what is in a child’s best interests, for any kind of order relating to the child are found in section 60CC of the Family Law Act. The paramount consideration for the Court when it makes orders about children is what is in the best interests of the child, this consists of two levels. The two primary considerations are:

  • The benefit to the child of having a meaningful relationship with both parents
  • The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s60CC(2)).

Other factors to be taken into account are contained in section 60CC(3):

  • the wishes of the child, considered in light of the child’s age, maturity and other factors that may influence the child;
  • the child’s relationship with each parent and with any other person;
  • the willingness and ability of each parent to facilitate and encourage a relationship between the other parent and the child
  • the existing arrangements for the child and the effect that a change would have on the child;
  • the effect on the child of separation from either parent, other children or any other person;
  • the practical difficulty and expense of a child having contact with a parent;
  • the capacity of each parent to provide for the child’s needs, including emotional and intellectual needs;
  • the child’s maturity, sex and background, including contact with culture or traditions of indigenous people;
  • the need to protect the child from physical or psychological harm;
  • the attitude of each parent to the child and to the responsibilities of parenthood (and willingness to comply with court orders);
  • any family violence involving a child or a member of the child’s family;
  • any family violence order that applies to the child or a member of the child’s family;
  • any attempt to avoid further litigation;
  • any other fact or circumstance the Court considers relevant.

In practice, the Court is usually very reluctant to move a child from an established situation where they are happy and settled. The Court attempts to avoid unnecessarily unsettling the child. The longer after separation this status quo has existed, the more difficult it is to reverse.
The Court will also be reluctant to split children up, so it will usually not decide to divide up the children between both parents. This situation may change, for example, if children have been separated by their parents while still young and have been apart for a long period.

Parents' Role in Decision Making

Parents are encouraged to reach an agreement about matters concerning the child between themselves, without the intervention of the court. They are encouraged to see the legal system as a last resort, to take responsibility for their parenting arrangements, minimise conflict, and act in the best interests of the child. The best interests of the child is the paramount consideration (s63BFLA).

Children's Wishes

The Court is required to take into account the child’s own wishes, if the child has expressed any, about where and with whom they wish to live. The Court will give these wishes such weight as it considers appropriate in the circumstances. This will depend on the child’s age and maturity, and any other factors that are relevant. There is no particular age at which the child’s wishes will be followed. The Court acknowledges that older children will often do what they please regardless of court orders.

Working out what are the true wishes of children can be very difficult. Parents can become involved in conflict because both claim that the child has expressed a wish to live with them. Both parents may be right, as the child may be caught up in conflicting emotions, and may say what each parent wants to hear. Children are often confused, and just want their parents to get back together.

Children should not be pressured into choosing between one parent and the other. It is better that they be told frankly about the separation and what is happening. Even young children are capable of understanding this. The children should then be told they can express a wish about where they want to live but that they are under no compulsion to do so. The responsibility for working out residence is the parents’ and not the children’s.

To protect children, the Family Law Act prohibits children under the age of 18 from giving evidence in court or on affidavit. There are a number of different ways that evidence of a child’s wishes can be presented, including:

  • family reports by a Family Consultant or any other court appointed expert;
  • affidavits containing statements about their wishes made by children to another person (usually one or both parents will do this);
  • through the child’s own solicitor if a child’s representative has been appointed by the Court.

In extraordinary cases, a child over the age of 10 may be a witness if the judge gives special leave.

Duration of Orders

Unless the orders state otherwise, a parenting order continues to have effect until the child or children:

  • reach 18 years of age;
  • marry or enter a de facto relationship;
  • are adopted by another person.

If circumstances change substantially, an application to vary any parenting order may be made. The Court will be reluctant to disturb the existing situation unless there has been a considerable change in circumstances.

The death of a parent in whose favour a residence order has been made does not automatically make the surviving parent the residence provider of the child. The surviving parent, or another person may apply for the making of a residence order in relation to the child. Where a person who does not have any parental responsibility for the child makes an application, then any person who does have parental responsibility for the child is entitled to be a party to the proceedings (s65KFLA).

Spends Time With and Communicates With

A parent who does not have a ‘live with order’ may apply to spend time with a child. There is no automatic right to spending time – the primary carer does not have to allow time unless there is a court order that requires this. However, time will usually be ordered, and unless the child is at risk, then it is better to provide ‘time with’ without court orders.

The Court will look at whether spending time by a parent with a child will promote the welfare of that child, and in most cases the Court believes that it will. Grandparents or any other person who has an ongoing relationship with the child may apply to spend time with a child. Grandparents are usually expected to spend time with their grandchildren while the child is with the grandparent’s son or daughter.

The main purpose of spending time is to maintain a continuing relationship between the child and both parents. This means that the parent should keep the child in their personal care throughout the spending time period. Although it is often difficult, both parents should encourage the child to view spending time positively so that the child does not feel torn between the parents.

Types of Orders

Spending time should be organised to suit the particular circumstances of each family. There are no fixed rules about what sort of time may be ordered. Reasonable time may be ordered and is completely flexible leaving it to the parents to organise times. Fairly good communication and cooperation is required for this to work. Usually, defined time is ordered which sets out the exact time and place for time to occur. Examples of usual defined time orders based on the age of the child are:

  • Babies and toddlers – day time only, as frequent as is practical, from one to two hours for little babies to all day on either a Saturday or a Sunday every weekend as the baby gets older. Overnight ‘time with’ is generally not appropriate until school age unless the parent has been involved in the daily care of the child before separation.
  • School aged children – every alternate weekend between 9am Saturday (or 6pm Friday night) and 5pm Sunday night, plus half of school holidays, alternate Christmas days and birthdays and special visits on Mother’s Day, Father’s Day or other special days.

Supervised time is ordered if there is some concern that the parent does not have appropriate parenting skills or that there is some risk to the child’s safety. In Hobart, this is facilitated through the Children's Contact Service. Time can be suspended or denied entirely by an order of the Court if there is unacceptable risk to the child.

No-Time Cases

The Court will only deny time in cases where there are exceptional circumstances, such as where the child would be harmed by time spent or continued contact with a parent. Examples of such exceptional circumstances might be when the parent has physically or sexually abused that child or if the level of tension between the parties is so great that continued ‘time with’ will distress both the child and the primary carer.

In a case where there is an allegation of sexual abuse, the Family Court need not decide whether or not sexual abuse has occurred. The question the Family Court must answer is: would supervised or unsupervised time pose an unacceptable risk to the child of sexual abuse, or of other physical, emotional or psychological harm or disturbance? If the Court does decide that abuse has occurred, it is on a civil standard of proof – that is, on the balance of probabilities – and based on the proper rules of evidence. If the evidence is not clear enough for the Court to decide whether or not the abuse occurred, it must decide whether or not the risk is unacceptable in light of the serious harm a child suffers as a consequence of sexual abuse.

Enforcing Spend Time Orders

The Family Court does not oversee or follow up court orders. If there is a breach of the order – for example, the parent repeatedly fails to make the child available for ‘time with’ or turns up at the wrong time or on the wrong day – it is best to contact the Family Consultants at the Family Court or attend mediation at a Family Relationship Centre or other mediation agency who may be able to assist the parties to resolve their problem.

If serious breaches continue to take place, a contempt of court action may be taken against the parent who is breaching the orders.

The Family Court views parents who do not comply with orders very seriously and punishes those who contravene its orders. This can be a fine, compensatory ‘catch-up’ time for the time missed or, in extreme circumstances, jail. However, if the child is ill and a medical certificate has been obtained, this is considered to be a legitimate excuse for not meeting time requirements and is not a breach of the time orders. The Court will not force a parent to see their child if the child refuses to spend time with the parent/relative but will require independent evidence to support such a claim.

Parents' Behaviour

General parental behaviour

The Court will consider the behaviour of the parents if it affects the welfare of the children. If a parent does not allow the child to have time with the other parent this may make the other parent’s case stronger should they apply for a ‘lives with’ order. Generally, the Court looks at the way the parents’ behaviour reveals their abilities to raise the children in a responsible and caring way. For example, a refusal to pay child support may indicate a lack of concern for a child's/children's welfare.

Each parent’s attitude to contact with the other parent is of particular interest to the Court. Some aspects of parents’ behaviour that may be considered by the Court when making orders include willingness to pay child support, cooperation between parents, antagonism, religion, and other characteristics of the parent's lifestyle.

Religion

The Court may take evidence to show that a particular religion is or will be damaging to the child’s welfare, for example, in creating tension because of different values in different households.

Lesbian or Gay Parent

A number of cases involving gay parents have come before the courts and the decisions have varied. The Court looks at the personality and attitudes of the parties involved and the strength of their relationship to the child. The child’s acceptance or non-acceptance of their parent’s sexuality and the risk of them being exposed to social embarrassment are other matters the Court will consider.

Family Violence

When a parent has been violent to their spouse over a long period of time, they are unlikely to be considered suitable to raise a child.

The Family Law Act 1975 (Cth) section 60B(1)(b) outlines that the object of the Act, in relation to family violence is to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. Section 43(1)(ca) states that among the principles a court is to have regard to is the need to ensure protection from family violence. In section 60CC(2), one the primary considerations of the court in determining the best interests of a child is the need to protect a child from abuse, neglect, harm or family violence. The court can vary orders for spending time with a child or children with reference to family violence orders (Division 11, Family Law Act).
The definition of family violence has been extended in several important pieces of legislation addressing family violence and the measures that are being taken by federal, state and territory governments in an effort to minimise family violence. Tasmania has the Safe At Home strategy, and the Family Violence Act (Tas) 2004.

Under the Family Law Act section 4AB, family violence is not just the application of physical force – not just hitting a person. Family violence is ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful. This includes but is not limited to conduct such as:

  • an assault; or
  • a sexual assault or other sexually abusive behaviour; or
  • stalking; or
  • repeated derogatory taunts; or
  • intentionally damaging or destroying property; or
  • intentionally causing death or injury to an animal; or
  • unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
  • unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
  • preventing the family member from making or keeping connections with his or her family, friends or culture; or
  • unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.

Exposure of a child to family violence includes seeing or hearing family violence, or experiencing the effects of family violence, such as seeing bruises on a parent. Situations that may arise include:

  • Overhearing threats of physical injury or death;
  • Seeing or hearing an assault;
  • Comforting or providing assistance after an assault;
  • Cleaning up after family violence or property damage; or
  • Being present when police or ambulance officers attend an incident of assault.

The presence of family violence in a home, and the exposure of a child/ren to family violence will be taken into account in making spending time orders.

Children

Jurisdiction Over Children

All children now fall within the jurisdiction of the Family Court or the Federal Circuit Court in Tasmania. So-called ‘test-tube’ children are also brought into this jurisdiction. A child who is born of a married woman but who is not biologically the child of the husband and who has been conceived as a result of artificial insemination or the implantation of an embryo in the woman is deemed to be the child of the couple. It is not necessary that either the embryo or the sperm that produced the child come from the husband or the wife. The same provisions apply in relation to de facto relationships.

Agreeing About Children

Most parents who separate are able to decide between themselves where the children will live without taking matters to court. Whilst this can be a difficult and emotionally draining experience, solutions reached in this way usually suit everybody better than a decision imposed by the Court. Parents are better able than a Court to work out what arrangement suits their children.

The Family Court has compulsory dispute resolution sessions in which parents are encouraged to reach agreement concerning their children. If you do not complete the dispute resolution sessions, it is unlikely that the court will accept the application for a court hearing as dispute resolution proceedings are now compulsory.

There is no need for parents to go to Court about their children. Parents may allow their agreement to remain informal. They may also make a written agreement, called a parenting plan, about the continued care of the children after separation. A parenting plan becomes enforceable like a Court Order when it is registered in the Federal Circuit Court. Parenting plans must be prepared with the consultation of a Family Consultant or with each parent having had independent legal advice. Plans may not be varied once they are registered. If circumstances change they may only be revoked by a whole new parenting plan, or by parenting orders of the Court. For this reason, parents should only sign parenting plans after careful consideration and preferably on the advice of their lawyers.

Actions by Children

Applications may be made by children (or by others on their behalf) concerning their care, welfare or development. This recognises the independent needs and rights of children. For example, a child could seek an order allowing them to live with a person who is not one of their parents, or could seek an order for child maintenance.

The Family Court has power to supervise how parents exercise authority over their children. Children may be able to challenge the exercise of those powers by their parents or legal guardians. For example, if an unmarried pregnant teenager wants an abortion and her parents will not give permission, she may be able to apply to a Family Court judge to overturn their decision.

The Court may order (of its own decision or on the application of a party or the child) that a child be separately represented by an independent children’s lawyer. It may request that the Legal Aid Commission arrange the representation. The independent children’s lawyer promotes the best interests of the child and may present the child’s wishes to the Court. They may cross-examine and call witnesses. They will present direct evidence to the Court about the child and matters concerning the child’s welfare. The independent children’s lawyer is to act impartially and does not take instructions from the child but is required to ensure that the court is fully informed of the child’s wishes although it is not bound to adhere to those wishes if they are not in the child’s best interests.

Removing the Children

Restriction in Movement and Relocation

When the parent with whom the child lives wishes to move a considerable distance from the other parent, either to frustrate ‘time with’ deliberately or simply to start again, the Court must decide what is in the child’s best interests. The Court can make an order preventing the children from being taken outside the State or overseas without permission of the Court or the other parent. When asked to make such an order, the Court will determine each case individually, having regard to individual circumstances. In particular, the Court must consider the right of the child to have ‘time with’ on a regular basis with both parents, and the practical implications of maintaining direct ‘time with’ with both parents on a regular basis. These considerations are subject to what is in the best interests of the child overall.

If there is a possibility that a child will be removed from Australia, the Court can order the surrender of any person’s passport, including that of the child, and issue a warrant authorizing a person to stop and search any vehicle, vessel or aircraft or search any premises, in order to take possession of the child. Children’s names can also be put on a computer list maintained by the Australian Federal Police at airports and other points of departure from Australia.

Abduction of Children

If a child has been taken or not returned to the person who is their primary carer then that person must apply for a recovery order at the Family Court or local court as soon as possible. A recovery order is like a warrant for the return of the child and empowers all State, Territory and Federal police to find and return the child to the person who is their usual carer. It may also prohibit a person from taking the child again.

If the carer does not already have a residence order, the carer should also apply for a residence order and an order for the daily care of the child at the same time as applying for a recovery order. In an emergency situation, the Court may make an ex parte order giving residence and daily care immediately and without the other parent being in court.

The Court can also make a Location Order or a Commonwealth Information Order to obtain information from individuals and/or State and Federal government departments like the Department of Housing, the Commissioner for Taxation and the Department of Family and Community Services as to where the parent and the child or children may be.

International Abduction of Children

Convention Countries - the Hague Convention

Children may not be taken overseas without the consent of both parents or a court order. If a child has been taken overseas without the knowledge or consent of a parent or retained overseas for a period longer than consent was given, there are steps that can be taken to have the child returned to Australia.

Australia is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction (‘the Hague Convention’). If a child is taken to a country that is also a signatory to the Hague Convention, then the child will usually be returned to Australia. Under the treaty, a child must be returned to the home country unless the parent seeking the return has not actually had ‘time with’ with the child for some time, there is a grave risk the child would be harmed if returned, the child objects to the return and is an older child, or if the child has been removed from their home country for more than a year and is settled in the new environment.

Under the treaty, it is not necessary for the person who lost the child to have had a parenting order at the time of the abduction. It is only necessary that the child usually lives in the country from which they were taken, and that the person who lost the child has a legal right under the law of that country to determine where that child may live. The Family Law Act (Cth) automatically gives these rights to each parent on the birth of a child without a parenting order.

The Federal Attorney General is responsible for taking all action to locate and secure a child’s return, at no cost to the parent who lost the child. A solicitor with the Department of Family and Community Services prepares the application. There are a number of signatories to the Hague Convention.

Non-Convention Countries

Many countries that are not signatories to the Hague Convention (including some Pacific Island countries, some of Australia’s neighbours in Asia and some African countries) are still reciprocating jurisdictions for the purpose of enforcing court orders (see Schedule 2Family Law Regulations (Cth) 1984). Australian parenting orders may be registered in these countries. The orders should then be enforced and the child ordered to return to Australia. The Federal Attorney General’s Department may provide legal, financial and practical assistance to track down abducted children to these and other countries.

Common Misconceptions

The separation was his/her fault so s/he doesn't deserve the kids

As with divorce, fault in marriage breakdown is not relevant to the residence of children unless the behaviour or conduct affects the welfare of the children. Many people believe that when one parent has a new relationship or goes out socially that they are exposing the children to ‘moral danger’. The Court considers that a person’s lifestyle is generally their own business unless that lifestyle is so unstable or morally depraved that the children are in real danger of harm. This is rarely the case, even if a parent lives a fairly active social life.

S/he left the kids so s/he can't have them

There are many misconceptions about how the Court decides residence.Many people believe that the parent who leaves the home and the children cannot subsequently seek residence for them. This is wrong. A person may have left the children behind for any number of reasons. They may have left in a crisis or may not have had a suitable place to accommodate them. The Court will look at who is best able to care for the children. If children are left for a considerable period with one person, however, this may be seen as acknowledgment by the other that this is the best place for them.

Women always get the kids

Many men mistakenly believe that they have little chance of obtaining residence and that the Court is biased in favour of women. The Court takes the view that a child should reside with the parent who can most adequately meet all the needs of the child.

The Court’s statistics show that men get residence of at least one child in 40% of all cases decided by a judge. Most separating couples do not seek parenting orders in the Family Court. Since women often bear most of the responsibility for children’s upbringing as primary carers, they often continue this role after separation by mutual agreement.

 

Separation and Divorce

Breakdown of Marriage

The Family Law Act 1975 (Cth) deals with divorce and other disputes arising from the breakdown of marriage or a de facto relationship. This includes property, residence of and contact with children of the marriage or relationship, and spousal maintenance. A man and a woman who have lived together in a de facto relationship, can have property and financial disputes resolved in the Federal Circuit Court (FCC), as well as disputes involving children, that is, residence and contact, and any specific issues which relate to the welfare of children.

‘Cross vesting’ laws, which enable matters under federal law to be dealt with by state courts and vice versa, may allow property matters to be dealt with in the Family Court of Australia (FCA) if other matters are in dispute. If the only dispute is in regard to property then this must be resolved in the state courts.

The policy of the Family Law Act is to assist parties to separate with as little antagonism as possible, and to encourage them to reach their own agreements about their children, finances and property. At each Family Court and FCC Registry there is a counselling service. Counsellors can give advice and assistance to parties contemplating separation, and those who are finding it difficult to cope with separation. Counsellors can also help parties resolve differences over residence and contact.

The FCA and the FCC both require that before parties start a case concerning either parenting or financial issues they genuinely attempt to resolve their dispute with alternative methods than court. There are three steps to go through before parties can start a case:

  1. participate in dispute resolution services, such as family counselling, negotiation, conciliation or arbitration
  2. If this is unsuccessful, write to the other parties, setting out their claim and exploring options for settlement
  3. Comply, as far as practicable, with the duty of disclosure – this means, providing all information that is relevant, and not concealing information from the other parties.

Non-compliance attracts serious consequences, including financial ones by way of cost penalties.

There are exceptions. These include cases involving:

  • Urgency
  • Allegations of child abuse or risk of abuse
  • Allegations of family violence or the risk of family violence
  • An intractable dispute (for example, one party refuses to participate in pre-court negotiations)
  • A risk of prejudice to one party (for example, where there is a genuine concern that the other person will attempt to defeat your application if s/he acquires knowledge of the intention to start a case)

Divorce dissolves the legal bonds of marriage between the parties. It does not deal with other matters such as residence and contact with children, maintenance, child-support or the division of property. These have to be applied for separately (see later in this chapter).

The only ground for divorce is the ‘irretrievable breakdown of marriage’ (s48(1)). This is shown only where the parties have been living separately and apart for 12 months and there is no reasonable likelihood of them getting back together.

The Court will not decide if one party is more to blame than the other for the marriage breakdown. Accusations of fault, such as adultery, cruelty and desertion are generally not relevant under the Family Law Act 1975 for the purpose of divorce, but family violence may be taken into account in respect of property division and children’s residence and contact.

The law does not require separating or divorcing couples to obtain court orders about the settlement of children’s residence and contact, spousal maintenance, child support and property. In most cases couples reach their own informal arrangements, often with the help or advice of a lawyer.

Marriages of Short Duration

Couples married for less than two years cannot be divorced until they have seen a counsellor to explore the issues surrounding the breakdown of the marriage. This is not a difficult requirement to meet. Usually the parties just have to tell a counsellor that they do not think a reconciliation is possible. This requirement can be dispensed with in special circumstances, for example, if it can be shown that counselling is impractical because the parties live a long distance apart.

Arrangements for the Children

The court will not usually grant a divorce unless the parties have made suitable arrangements for all children treated by them as a child of their family who are under 18 years of age (s55A).
The application for divorce should set out details about the children including:

  • where and with whom they live;
  • their progress at school;
  • their health;
  • how often they see the parent with whom they do not live;
  • how much the parent with whom they live earns; and
  • the amount of child support being paid.

Although the judge has to approve them, these arrangements do not become orders of the court and are not enforceable by the court. Separate applications can be made for children’s residence and contact orders, and the Child Support Agency can assist with issues which relate to the financial support of children. In special circumstances (for example, where the other spouse or the children cannot be found), these details will not be needed for the divorce.

Separation

What is Separation?

Period of Separation

The 12 month period of separation begins the day both parties cease to live together as husband and wife, and must be completed before the application for divorce is filed. A party does not necessarily have to inform the other that separation has begun or to take any formal step to prove the commencement of the separation, however it is a good idea to document the beginning of a separation, and inform the other party.

A period of separation does not automatically begin simply because the parties are living apart because of imprisonment, illness or work transfer of one of them. As long as they continue to treat each other as husband and wife they will not be regarded as ‘separated’ for the purposes of the Family Law Act. In these circumstances, one party must usually inform the other that separation has begun before the period begins to run. Alternatively, where there is evidence that one party has started living with someone else, or where contact is not maintained by regular correspondence or visits, the court may presume the separation has begun.

Separation under One Roof

The parties can have been living separately and apart as husband and wife, but still live in the same house. It must be shown that either party or both parties left the marriage relationship and that they live independently of each other. As each marriage relationship is different, the facts which show separation under one roof may vary from case to case.

Normally it is necessary to show that the parties do not share any of the usual activities of marriage, such as sleeping together, eating together or going out together. One party can perform household services, such as ironing and washing, for the other if it is necessary for the running of the home and the convenience of others who live there.

The case for separation under one roof may be strengthened by showing:

  • that there were reasons why the parties remained together, for example, lack of finances to obtain separate accommodation, and/or the interests of the children; and
  • that the parties intend to live apart in the near future. An intention to continue living under the one roof may indicate a reasonable likelihood of reconciliation.

The court will normally require independent evidence from a neighbour, friend, or relative that there was a separation under one roof. This is called ‘corroborative evidence’. Where spouses intend to live separately under one roof, they should make sure that others know about this decision from the beginning of the separation. Although it is not necessary, it is also a good idea to say that the marriage is over, or to sign an agreement to this effect. While this may seem hard at the time, it ensures that there is no confusion between the spouses, and that one can apply for a divorce after the end of the one year period.

The court will also accept registration with Centrelink of the change in relationship status, as evidence of the separation.

Resuming Cohabitation During Separation

The parties may resume their marital relationship after the separation has commenced, and continue to live as husband and wife for one period of up to three months, without having to start the whole separation period again to be able to apply for a divorce. The separation period stands still during the reconciliation and starts again if and when the parties separate before the three months is up. Isolated acts of sexual intercourse do not break the separation period.

Example - Joe and Florence

Joe and Florence separated in January 1999. They decided to try again to make their marriage work and lived together again for the three months between March and May. The reconciliation didn’t work, so they separated again in May. As they had already been separated for the 2 months from January to March, they only had to wait another 10 months to reach the 12 month period of separation required for the divorce.

Rights on Separation

A husband and wife have the following rights and duties before and after their separation:

Children

Parents are equally responsible for the care and upbringing of their children until the court orders otherwise. They may reach agreement about the care of the children and have orders made under the Family Law Act 1975 by consent of them both or have an agreement about residence or contact registered with a Court.

If the parents cannot decide with whom the children should live, either can apply to the court for a residence order. The parent who does not have the care of the children can apply to see them. This is called contact.

Financial Support

A spouse who cannot support themselves or the children can make an application to the court to order the other party to provide some financial support (or maintenance). Both parents are equally responsible for the financial support of children. They may reach an agreement about maintenance and then have that agreement registered under the Family Law Act or have court orders made by consent.

If the parties separated on or after 1 October 1989 then Child Support is governed by the Child Support (Assessment) Act 1989 (Cth). Assessments for child support will be determined by the Child Support Agency or the parties may settle child support by agreement and have that registered at the Child Support Agency.

Protection from Violence and Harassment

Where one party has threatened or assaulted the other party or the children, the Family Court of Australia, or a Magistrate’s Court, can make orders to restrain or stop further violence.

Property

The parties can make their own arrangements for the division of property and have that agreement approved by the court at any time before or after divorce.

Either party can apply to a court for orders for property settlement where there is no agreement between the parties. An application for property settlement must be made within 12 months of obtaining a decree absolute of divorce (or before actual divorce proceedings are instituted). If made 12 months after the decree absolute, leave seeking that the application be heard out of time must be obtained from the court before proceeding. This may be difficult in some cases and explanations must be provided for the delay.

If the party who has left cannot get their personal possessions from the house they can apply to a Magistrate’s Court or the Family Court of Australia for an order that these possessions be handed over.

Applying for Court Orders

Where a couple cannot agree on arrangements after their separation, either of them can apply for orders under the Family Law Act. The basic principles which a court will apply are set out below.

Residence of Children

The court will take the view that the primary consideration in determining where a child lives is what is in the best interests of that child. The Court does not have preferences for fathers or for mothers, or in relation to religion, race or any other matter. Residence can even be given to a person who is not a parent of the child.

Contact with Children

Again, the court will be primarily guided by what it sees as being in the best interest for the welfare of the child. However, the court generally takes the view that a child or children spend regular time with parents is desirable.

Occupation of the Matrimonial Home

An order to enable one party and the children to have sole occupation of the matrimonial home can be made in special circumstances, particularly if there is no other reasonable accommodation available and if it is clearly in the children’s best interests for them to reside in the matrimonial home. However, such orders are usually made on a temporary basis until there has been property settlement between the parties.

Property

The court can make orders about property settlement and can even change the legal title to property where that is appropriate. The court is guided by considering the contributions to property made by each party (including the ‘home maker’ contribution of a non-working spouse or parent) and the needs of each party (including the need to provide a home for the children of the marriage).

Maintenance

Both parties are equally responsible to financially support each other (where necessary) and the children. The following principles apply:

  • The obligation to pay maintenance takes priority over all expenses of a party to a marriage except for those expenses needed for the ‘support’ of that parent.
  • The court is required to ignore the fact that the party applying for maintenance may be eligible for, or actually receiving, an income support payment from Centrelink. The court is also able to make urgent orders for maintenance.
  • The Child Support (Assessment) Act provides the rules and proceedings for obtaining maintenance.

Peace and Privacy

The Court can make orders restraining the behaviour of one party if there is a threat to the safety, peace or right to privacy of the other party or of the children.

Temporary Protection of Assets

The Court can make interim orders to protect assets from sale or destruction (or other threats) until it is able to properly consider property settlement or maintenance matters.

When to Apply for Divorce

The application for dissolution of marriage (that is, divorce) cannot be filed in a Registry of the Family Court of Australia or the Federal Circuit Court until the 12 month separation period is over.

Who can Apply?

Either party can apply for divorce. It does not matter who left the marriage, or whether the other party does not want a divorce. A Joint Application may also be made by both parties together. Before the court can hear the application, there must be proof that the parties have some link with Australia.

The husband or wife must, at the date of application, be:

  • an Australian citizen;
  • domiciled in Australia - which means that they have made Australia a permanent home. It does not matter that they are living temporarily overseas; or
  • ordinarily resident in Australia, and have been living here for 12 months before the application is made. It does not matter that they are only temporarily living in Australia.

How to Apply

The person applying for divorce (the applicant) must fill out an Application for Divorce (called a ‘Form 4’ and available from Family Court Registries). This is a ‘do-it-yourself’ kit. It must be signed and witnessed by a Justice of the Peace or a solicitor. The completed Form 4 and two copies of it (good photocopies are acceptable) must be taken to the Registry for filing and sealing.

A copy of the marriage certificate must also be filed. If the original certificate is not available, certified copies are available from the Registrar of Marriages in the State or Territory in which the marriage took place.

Where the certificate is not in English, a translation should be filed.

A filing fee for the divorce application must be paid although this can be waived where there would be financial hardship and an application for ‘Exemption from Payment of Court Fees’ is made. Where the applicant is on a pension, the filing fee will not usually have to be paid.

Joint Applications

Parties can now apply jointly for a divorce. This change in the law takes divorce a step further away from the old ‘adversary’ approach and allows couples who agree that their marriage is over to dissolve it together. If the parties can agree about dissolution this can be an important and helpful step towards agreeing about the range of other matters (children’s residence, property and so on) that have to be sorted out.

Joint applications have a number of practical benefits. There is no need to go through the legal formalities of serving the documents. Parties can ask that the usual waiting time of 28 days between the date of filing and hearing be shortened. Sometimes the court can cut it down to two or three weeks depending on its workload.

A word of caution: To obtain a remission of the filing fee, both applicants will need to have financial difficulties. If one is working and the other on a pension the fee may still have to be paid.

Serving Divorce Papers

Serving the Application

The Court will keep the original application, stamp the copies (called ‘sealing’) and give the copies back to the applicant.

The following documents must then be posted or sent to (‘served on’) the other party (‘the respondent’):

  • a sealed copy of the Form 4; and
  • a pamphlet outlining the effects of divorce (available from the Registry).

The respondent must be served at least 28 clear days before the hearing date (42 clear days if they are overseas). There are several methods of service.

The Family Court website also provides a step-by-step guide to serving divorce papers.

Personal Service

The respondent can be handed the documents by a person (Reg 7.12 Family Law Rules 2004 (Cth)). A friend or relative, or a professional process server, can serve the documents (with or without the presence of the applicant). A professional server will charge a fee.

If the applicant uses personal service through a friend or relative they should get the following documents from the Registry at the same time as the application for dissolution is filed:

  • an Affidavit of Personal Service;
  • an Acknowledgment of Service ;
  • pamphlets outlining the effects of divorce. Family Court brochures are available from the Registry.

The server should hand the documents to the respondent only. It is not enough to leave them with someone else who lives or works with the respondent. If the server does not know the respondent they should identify the respondent by asking for their full name, the full name of their spouse and the date and place of marriage.

The documents must be left with the respondent. If they will not accept them the server should put them down within the view of the respondent. The person serving the documents should also say “Your husband or wife (whichever applies) is seeking a divorce from you. These are the papers and the Court will hear the application on...(name the date)”.

The respondent should also be asked to sign the Acknowledgment of Service form. It does not matter if the respondent refuses to sign this form. The applicant can rely on the affidavit sworn by the person who served the documents to prove that the respondent received them.

Once the documents are served, the server should fill out and sign an Affidavit of Personal Service in front of a Justice of the Peace or solicitor. The Acknowledgment of Service, if signed, should be attached to this affidavit and also signed by the Justice of the Peace as an annexure. These documents are then filed in the court as proof of service.

Postal Service

The documents can be served on the respondent, if the respondent will cooperate by signing the application, by post. If postal service is used the applicant will have to get the following documents from the Registry:

  • an Affidavit of Service by Post;
  • an Acknowledgment of Service;
  • an Affidavit of Proof of Signature.

Unlike personal service, the applicant can post the documents to the respondent themselves. Included with the sealed application and the pamphlet on the effects of divorce, there should also be an Acknowledgment of Service for the respondent to sign and a stamped envelope with the applicant’s name and address on it.

If the respondent does not sign and return the Acknowledgment of Service, another method of service will have to be attempted.

If the form is returned, the applicant should fill out and sign an Affidavit of Service setting out the date on which the papers were sent. It will also be necessary for the applicant to complete an Affidavit of Proof of Signature attached to the signed Acknowledgment form. In this affidavit, the applicant has to set out how they know that the signature on the Acknowledgment is the respondent’s. A common form of words is: "During the course of our married life I saw the respondent sign cheques and other documents on many occasions."

Overseas Service

If the documents are to be served overseas, the mode of service may depend on whether the country is a ‘convention country’ (that is, a country with which Australia has an agreement about civil proceedings, including the service of documents. There are a set of rules where service is in a non-convention country (Reg 7.19 and 7.20Family Law Rules 2004 (Cth)).

If you need to serve papers on a spouse in a convention country it must be done at least 42 days before the court hearing. The regular methods of service apply - postal service or personal service.

Substituting or Dispensing with Service

If the applicant does not know the whereabouts of the respondent, or has for some other reason been unable to serve the respondent an application can be made to the court for substituted service. The court can order some other type of service. If the applicant knows the address of a family member of the respondent they can post the douments to that person. The divorce documents must be in a sealed envelope addressed to the respondent and mailed as “confidential”. The letter the family member should ask them to pass the documents to the respondent. The applicant needs to swear an affidavit outlining that this has been a substituted service.

Sometimes the court will waive the requirement for service altogether. The applicant will need to make a separate application for dispensation of service. They will also need to swear an affidavit setting out the efforts that have been made to find the respondent. The court will not usually require the applicant to go to great expense in trying to track down the respondent, especially if they are not financially well off. It will not be necessary, for example, to hire private detectives.

The following inexpensive enquiries are often sufficient to show attempts at service:

  • writing to the respondent’s family and friends, telling them of the divorce and asking them for information on the respondent’s whereabouts;
  • writing to the last known employer of the respondent and asking whether they left a forwarding address;
  • conducting a search of Motor Registry’s driving license and car registration records.

The application for dispensation of service and the supporting affidavit should be filed at the same time as the application for dissolution. The application may be decided by a Registrar or Deputy Registrar of the Court without need for the applicant to attend court. The court may order an alternative form of service such as by advertisement in a newspaper.

Court Process

Appearing in Court

The applicant can either appear in person or be represented in court by a solicitor or barrister. It is not necessary for divorcing parties to have a lawyer. In simple divorces the parties can easily represent themselves. Application for Divorce Forms from the Registries of the court have detailed side notes on how to fill in the forms. Court staff will also advise on filing and serving the necessary documents.

If the divorce is opposed or if it involves special circumstances such as separation under one roof, it is wise to seek legal advice. Free advice is available from the Legal Aid Office or Community Legal Centres. In relation to children’s residence and contact, maintenance and property matters it is advisable that both parties consult solicitors to ascertain their rights.

Going to Court

On the day of the hearing the applicant or their lawyer should arrive before the hearing time. It is not usually necessary for the respondent to appear. In the foyer of the court building there will be a list of cases being heard. The applicant should look for their name, note the number of the court where the case is being heard and its number on the list. The applicant should find the court and be seated in the court by the hearing time. An applicant should not sit at the long table where lawyers sit. If the applicant does not have a lawyer, the clerk of the court should be told.

Proceedings are relatively informal and conducted by a Registrar or Deputy Registrar rather than a judge. If represented by a lawyer the applicant will not usually have to say anything. If appearing in person the applicant will normally be asked by the Registrar to state their name, the name of the respondent and whether there are any children under 18 years of age. The Registrar will then read the papers and may ask a few short questions about the separation or the children. The applicant must stand whenever the Registrar speaks directly to them. The hearing of the divorce will only take a few minutes. Often there will be 10 or 20 other couples whose marriages will be dissolved in quick succession by the Registrar.

Many people say afterwards that the court was like a ‘sausage factory’ or that “it was over before I knew it". The reasoning behind this approach to divorce is that the breakdown of marriage is a private matter between the parties. The court is only concerned with the narrow factual question of whether the marriage is over. Unresolved emotional issues are best dealt with during private counselling and not in public by a court and lawyers. The court can concentrate on resolving disputes concerning children’s residence and contact, maintenance, property and other matters.

Witnesses and Attendees

Witnesses

In divorce proceedings, neither party is usually required to go into the witness box to give evidence. Sometimes the Registrar may require evidence about the separation or about the children. This will usually be very simple and not involve cross-examination by the respondent or their lawyer unless something contentious has been said. Often the Registrar will just ask the parties questions while they are seated at the bar table without requiring them to give evidence from the witness box.

Where the children live with an applicant who has a de facto marriage partner, that partner should come to court to give evidence, if necessary. Where the children live with the respondent and the respondent is not represented in court, the Registrar may want to hear evidence from the applicant or someone who has seen the children recently if the applicant is not fully aware of their situation. If the applicant does not have sufficient knowledge about the children and the respondent cannot attend court, they should be asked to swear an affidavit setting out the arrangements for the children.

Where there has been a separation under one roof, it is usually sufficient if the evidence of another person corroborating the applicant’s story is set out in an affidavit. However, if possible, this person should be in court in case the Registrar wishes them to give further evidence.

Bringing Friends and Relatives

Parties are free to bring friends and relatives to court if they feel in need of support. Children are not normally allowed in court.

Absent Parties

In some circumstances the court can be asked to hear the divorce application in the absence of both spouses and their legal representatives (‘divorce on the papers’). The Registrar will make a decision on the basis of the papers that are filed in court. This should make divorce cheaper and simpler.

Divorce on the papers is only available if there are no children under 18 years of age. If at the hearing date the respondent has not filed an Response opposing the divorce or a Notice Requesting that the Dissolution Not Be Heard in the Absence of the Parties, then neither the applicant nor a lawyer need turn up.

Appeals

If either party appeals against the terms of the decree nisi or the decree of annulment within 28 days after it is made, the decree nisi will not automatically become absolute until one month after the appeal is heard (ss55(3)(a) and 94(1)). The appeal is lodged by filing a Notice of Appeal at the Principal Registry and paying a filing fee.

Opposing Divorce

There are only very limited grounds for opposing a divorce. It is not enough that the respondent does not want a divorce, or says that they still love the other party, or wants a reconciliation. As the only ground for divorce is the irretrievable breakdown of marriage, the only way the respondent can stop the divorce is by showing that this has not occurred. The respondent will have to establish either that the parties have not yet been separated for 12 months, or that there is a real likelihood of reconciliation and the marriage has not ended. To prove that the marriage has not ended, the respondent must show that both parties want a reconciliation. This will be very difficult, because the applicant has brought the proceedings for divorce for the very reason that they want to end the marriage.

If the respondent considers there are grounds for opposing the divorce, they should prepare and file a Response. This must be done within 28 clear days (or 42 clear days if the respondent is overseas) of the application for dissolution being served on the respondent. A joint counselling session at the Court offers a better chance of reconciliation than dealings in a court room and the respondent should try to arrange a counselling session at the Family Court or a marriage counselling organisation. Even with counselling, the respondent should file an response if they consider there are grounds for opposing the divorce.

Dissolutions and Annulments

Dissolution of Marriage

Once the court is satisfied that the 12 month separation period has passed and that proper arrangements have been made for the children, it will grant a decree nisi. The decree nisi automatically becomes final or absolute one month later and a sealed copy of it is sent to the parties in the mail. Technically the parties are still married until the order becomes absolute and they cannot remarry till then. This waiting period can be shortened in cases of urgency or hardship.

If the parties become reconciled during this period, they must apply to the court to have the decree nisi set aside. Otherwise the marriage will be dissolved when the decree becomes absolute.

Annulment

An application for a ‘decree of nullity’ is an application for an order from the Court that a marriage be declared invalid. Invalidity may result from one of the following:

  • either party was already married at the time of the ceremony (that is, bigamy);
  • the marriage was within a prohibited relationship (for example, sisters cannot marry brothers, parents may not marry children, step-brothers may not marry step-sisters (s23, Marriage Act);
  • there was no consent by either or both parties to the marriage (for example, through fraud, duress, mistake or mental incapacity);
  • the ceremony was invalid (e.g. improperly appointed celebrant); or
  • the parties or one party were not of marriageable age.

Contrary to common belief, a marriage can no longer be annulled on the grounds that it was ‘unconsummated’.

Nullity proceedings are begun by filing an application at a Family Court Registry. The application must include an affidavit setting out all the relevant facts and circumstances evidencing the invalidity (Reg 4.29, Family Law Rules).

Parties to a void marriage may remarry at any time without entering a bigamous relationship. Children born of a void marriage are treated equally with legitimate children.

A party to a void marriage who honestly believed at the time of the ceremony that the marriage was lawful will be treated as a legitimate spouse for the purpose of property settlements and maintenance awards under the Family Law Act and for probate purposes.

Legal Representation and Advice

Choosing a Lawyer

Just because a person is a lawyer does not mean that they have the skills, knowledge or experience to deal with a family law case. Not all lawyers do family law or do it well. Before engaging a lawyer it is wise to ask about their experience. The Law Society has a list of lawyers who practice family law, the Legal Aid Commission and Community Legal Centres may also be able to give guidance.

Costs

It is advisable to get legal advice if there are problems or proceedings about the children, property, or spousal maintenance etc. Complex legal questions can arise and a party without legal advice may be disadvantaged. Solicitors and barristers may not charge more than the Family Court’s scale of fees unless the client agrees in writing to a different scale.

If the parties are unable to agree about arrangements for the children or a property settlement, applications have to be made to the court. Under the Family Law Act, each party usually pays their own costs, whether the case is decided in their favour or not. One party may be ordered to pay the other’s costs if the application or appeal has no merit, one party is in difficult financial circumstances, or has conducted the proceedings so as to unnecessarily increase costs or for various other reasons.

Legal Aid

The Legal Aid Commission of Tasmania (LACT) provides telephone advice for the cost of a local call. And a free legal advice service through its Clinic Advice Services for family law (children’s) matters. Legal Aid also provides the assistance of a Family Law Duty Lawyer who is available at the court during court lists to assist with avice, limited negotiations and representation in court. There is no means test for advice. Free advice can also be obtained at Community Legal Centres.

A person may also consult the private solicitor of their choice who can apply for legal aid on their behalf. Aid is subject to a means test. Aid is also available for appeals. If aid is approved, a minimum contribution (currently $60) is usually required although this may be waived in cases where the applicant can demonstrate that the payment of a contribution would impose real financial hardship. A contribution may be imposed or increased once proceedings are over. This is because a person who could not initially afford to bring proceedings may well be in a different position after a dispute is finalised.

Legal aid is not granted for applications for divorce unless it is imperative (in the LACT’s opinion) that the marriage be dissolved and the applicant is in a position of special hardship. Aid is not available from the LACT for enforcement of maintenance orders because the Child Support Agency can do this for free.

If in doubt about making an application for legal aid to the LACT, phone the LACT, go to a Community Legal Centre or see a lawyer. Legal Aid applications must be lodged electronically, and are usually processed in two working days. See their website.

The Relevant Courts

Changes in the late 1990s to the federal court structure has meant that there are now two courts that have jurisdiction to resolve family disputes: the Family Court of Australia and the Federal Circuit Court. The Federal Circuit Court (FCC) deals with the majority of family law cases that arise, while the Family Court deals with more complex or lengthier proceedings. The FCC hears matters that take less than three days. The FCC also hears matters concerning property more often than the Family Court.

The Family Court and the Federal Circuit Court share jurisdiction over many matters in the area of family law. Both have jurisdiction over family law, and both focus on alternative dispute resolution methods for resolving legal disputes. Both the Family Court and the Federal Circuit Court stress dispute resolution alternatives to litigation. Both courts have jurisdiction over both marriage and de facto relationships. Both courts also provide e-filing for divorce, initiating applications and response to initiating applications, to speed up and simplify the process of divorce.

Family Court – exclusive jurisdiction

The Family Court has exclusive jurisdiction over the validity of marriages and divorces, and adoption. It is also the court which deals with more difficult issues of family law, such as:

  • international child abduction
  • international relocation
  • special medical procedures
  • serious allegation of sexual abuse of a child
  • serious allegations of physical abuse of a child

The Family Court also hears disputes over whether a case should be heard in Australia, and also complex questions of jurisdiction and law. The Federal Circuit Court will deal with many of the smaller scale issues in family law. There is a large body of publications available on the Family Court website concerning all aspects of the Family Court process.

Federal Circuit Court and Family Court: overlap

The Federal Circuit Court was created in 1999 in order to relieve the court loads on the Federal and Family Courts of Australia. The rules and procedures of the court are generally less formal than other courts, making the processes of court more accessible and quicker.

Whilst both the Family and Circuit Courts deal with normal family law issues such as divorce, separation, maintenance, and child support, the Federal Circuit Court will hear the majority of divorce applications in Tasmania. As the Family Court has exclusive jurisdiction over the more complex or sensitive cases, as noted above, so the Federal Circuit Court takes the burden of more typical cases, such as separation or divorce.

The Federal Circuit Court has the jurisdiction to determine applications concerning:

  • Orders to resolve parenting and financial disputes
  • Spousal and de facto maintenance
  • Property disputes
  • Divorce
  • Contravention applications (alleging a breach of a court order)
  • Enforcement of orders made by either the Federal Circuit or Family Court
  • Location and recovery orders as well as warrants for the apprehension or detention of a child
  • Determination of parentage and recovery of child bearing expenses
  • Applications for injunctions
  • Superannuation (which can now be considered property in a divorce or separation)

The Federal Circuit Court is a quicker and cheaper option for parties to proceedings. If a matter proves to be more complex or lengthy than initially thought, a party to the litigation can apply to have the proceedings transferred to the Family Court. The Federal Circuit Court can also do this on its own motion.

All divorce applications should be filed in the Federal Circuit Court of Australia (FCC). The process costs less in the FCC. The Federal Circuit Court shares registry facilities with the Family Court of Australia. These are located on Davey St, across from St David’s Park.

The Federal Circuit Court sits two days a month, and there are court lists available online through the FCC website. The Family Court of Australia only sits in Hobart when there is a trial to take place. The FCC takes care of the procedural matters of resolving divorces, settlements, maintenance, and issues with children. The FCA will only sit to hear complex matters, hence there is no court list available. The FCA may also be a closed court, depending on the subject matter of the hearing.

Child Maintenance

Introduction

All parents are expected to contribute to the financial support of their children whether they were married, lived in a de facto relationship, or never lived together. The amount the liable parent must pay depends upon the income and financial situation of both parents.

The Child Support Agency (CSA) was set up as part of the Australian Tax Office to administer Child Support. Before this system was introduced, up to 80 percent of separated fathers were avoiding payment of child support. This meant that women were increasingly relying on social security payments. The CSA was introduced to make it more difficult for parents to avoid paying and thus ease the burden on Centrelink. Statistics indicate that around 70 percent of liable parents now pay child support.

The CSA manages collection of child support. It can do so either by arranging for an employer to deduct payments from a parent's pay, or by having the parent send the money to the agency. Generally, use of the CSA to assess and collect child support is voluntary. Parents may make their own private arrangements for the financial support of their children.

The CSA, Centrelink, community legal centres including the Hobart Community Legal Service’s Child Support Service, and the Legal Aid Commission's Child Support Service can all assist with information on these matters.

A parent or other person who cares for a child and who is an ‘eligible carer’ as defined by the Child Support Assessment Act (Cth) 1989 (CSAA) may get child support. The parent assessed as having to pay child support is known in the Act as the ‘liable parent’.

To be an eligible carer, a person must be either:

  • a person who is the sole or principal provider of daily care to the child;
  • a person who shares the daily care of the child with another person who is not the same person from whom the maintenance is sought; or
  • a person who is jointly responsible for care of the child.

The CSA determines the amount the liable parent must pay using a formula based on both parent’s taxable incomes and the amount of time the child/children spend/s with each parent. The formula is designed to cover many different situations and allows for different family circumstances.

If the eligible carer receives more than the minimum amount of family tax benefit and/or receives parenting payment from Centrelink, then Centrelink will require the carer to take reasonable steps to obtain child support from the other parent. There are exemptions from this requirement, however they must fit within Centrelink guidelines such as fear of violence from the other party, whereabouts of the other party not known, or paternity not established. The social workers at Centrelink can assist people who are concerned about making a child support application. Child support can only be sought from a parent of the child who is present in Australia at the date of the application.

How to Apply

First Steps

There is an online form available. Also, the CSA needs proof that the person from whom the child support is sought is the child's parent (s29(2) Child Support Assessment Act 1989). This requirement is satisfied if:

  • they were married and the child or children are of the marriage;
  • the person’s name appears on the birth certificate;
  • a court has found that they are the child's parent;
  • they acknowledge they are a parent of the child in a legal document (e.g. statutory declaration); or
  • they have adopted the child.

Once paternity is established, the CSA proceeds to make a child support assessment for the current child support period (s31CSAA) which is not necessarily the current calendar or financial year. It will notify both parties of the assessment and of either party's right to apply to the Child support Agency or the Court for a different assessment (ss33-34CSAA). Child support begins from the date the Child Support Agency accepts the application, unless the parent applying for child support causes unreasonable delay in the application process. In that case, the agency will determine a reasonable commencement date for child support payments, according to the circumstances.

The Formula

The assessment is based on a formula applied to both parent’s taxable incomes. You can access a Projected Estimator online. The formula takes into account any other biological or adopted children the liable parent may have to support and allows for an excluded amount of income as ‘self support’, which is the same for each parent regardless of income. The formula then factors in the number of children, and the amount of time each parent will spend with the children. Some examples of Child Support assessment are available.

There is a minimum child support liability for all payers of $7.09 per week ($320 a year) which changes slightly each year with the Consumer Price Index (CPI); however if a liable parent’s income is less than the minimum income set by the Agency , the payment can be reduced to a nil payment. This includes liable parents on social security payments.Examples of the formula for assessment of payment for child support, with variables such as more than one family to support, can be accessed.

A liable parent may ask the Child Support Agency to reduce the amount of child support payment if their current income has fallen by at least 15 percent from the income the original assessment was based on. This is done by lodging an Estimate of Income form.

Either party may apply to the CSA's Departure from Assessment Team to depart from the assessment if they can establish the existence of one or more of the nine grounds (reasons) which are set out in the legislation. Examples of these reasons include that extra costs are incurred in the support of a child with special needs, or that the assessment did not properly take into account the income earning capacity, property and financial resources of one or both of the parties. The parties can have their matter heard by a senior case officer at a conference - either together, separately, by telephone, or based on their written submissions alone. If a party is dissatisfied with the decision of the senior case officer they may make a new departure application to the Family Court. However, they must have been through the above administrative process first.

Proving Paternity

The Family Court has the power to order DNA tests to assist in proving paternity (s69WFLA). Paternity tests are often essential where paternity is in dispute, as some men will not acknowledge their responsibility. These are expensive tests costing $700-$900. The Court can order these costs initially to be shared between the parties. If the test proves positive, the Court can order the father to repay the mother's share of the costs. Legal aid may be available for the mother. In these cases, once a positive paternity test result has been received, they should be asked to sign an Acknowledgment of Paternity form which can be obtained from the Child Support Agency.

The CSA will not accept results of a paternity test as proof of parentage. The CSA will only stay or depart from an assessment of child support upon receipt of a court order.

Private Child Support and Collection Arrangements

Parties can enter into private agreements between themselves and can also choose to collect the child support without the assistance of the Child Support Agency. The Child Support Assessment Act also provides for the registration of private agreements with the Agency which will ensure that the agreement is enforceable in the future. Parents entitled to receive child support who receive income support from Centrelink need to obtain the approval of Centrelink before they can enter into private agreements and must be getting at least 100% of the assessed amount of child support from the liable parent.

A child support agreement can be registered with the Child Support Agency for collection. This is usually the best option to ensure regular payments although where there is a history of regular payments, the CSA encourages parents to opt for private collection. If private collection later breaks down, the entitled parent can ask the agency to again start collecting the child support.

Child support agreements can only be changed with the consent of both the entitled parent and the liable parent or by order of the Court. They are usually difficult to change and parents should only sign one after receiving independent legal advice.

Child Bearing Expenses

Under section 67B of the Family Law Act, the father of a child, whether or not he has ever lived with the mother, is liable to contribute to the mother's maintenance for the period before the birth. These expenses can include clothing for the child, cot and car seats as well as her medical expenses, including surgical, hospital, nursing, pharmaceutical and related costs. Proof of these expenses should generally be retained. Should the mother or child die in circumstances related to the pregnancy or birth, funeral expenses can also be claimed.

The Court will consider the financial situation of each parent and any special circumstance that may cause injustice or undue hardship. However, the Court must disregard any entitlement of the mother to an income tested pension, allowance or benefit (e.g. parenting payment or Maternity Allowance) (s67C, FLA). Applications may be made to the Family Court either before the birth or within the first 12 months after the birth. Any later applications requires special leave of the Court.

Enforcement and Ending Child Maintenance Orders

Enforcement

A child support order rarely means the end of a person’s financial problems. In many cases it is just the beginning. The parent who obtains the order in their favour faces problems of:

  • irregular payment;
  • inability to pay the full amount;
  • disappearance of the other parent; and/or
  • change of name or work place, meaning that garnishment (a court order that the maintenance payments be paid by the person’s employer from the employee’s wages) is not possible.

Under the Family Law Act it is no longer possible to have a child support defaulter (that is, a person who does not pay child support) imprisoned for non-payment. However, if the defaulter acts in contempt of the Court, (e.g. willfully disobeying the court order), the contempt may be punished by imprisonment.

Anyone entitled to be paid spousal maintenance or child support, or both, under a court order or agreement may register that entitlement with the Child Support Agency. The CSA will then collect and enforce the payments. Enforcement action for any defaults or arrears may include wage garnishment, seizure and sale of personal or real property and/or sequestration of estates (Reg 20.05Family Law Rules 2004).

Wage garnishment requires that the liable parent's employer takes the child support payment out of the parent’s pay packet. This is called ‘employer withholding’. In order to garnishee a person's wages successfully, the person must be in regular employment and be employed by a person or company which pays them a salary or wage. This has been one of the most successful methods of child support collection.

Ending a Child Maintenance Order

Unless otherwise specified, a maintenance child support order for a child ends when the child turns 18, dies, marries or is adopted (ss66T-VFamily Law Act (Cth)). An administrative assessment issued by the Child Support Agency ends when the child turns 18, marries, dies, is adopted or no longer resides in Australia. A child who has turned 18 may continue to receive child support for the remainder of Year 12 schooling, but only if it is formally requested by a parent before the child turns 18. As well, support may be ordered to continue, by agreement between the parents or by court order, for any child over the age of 18 years when that child is still studying or has a disability and requires ongoing parental support (s66L, Family Law Act).

Administrative Remedies

Generally, the Child Support Agency will try to exhaust administrative remedies for enforcement before taking any court action. These can include:

  • notices issued to third parties directing them to pay to the CSA any money they hold or may hold on behalf of the liable parent (most commonly used against banks);
  • notices issued to third parties in Australia holding the liable parent's money where the debtor is not currently residing in Australia;
  • notices requesting information about the liable parent;
  • setting aside a transaction to defeat a child support liability; and
  • tax refund intercepts.

If the above methods fail, the Child Support Agency may consider starting legal proceedings to enforce the payment of arrears. Either the CSA or the entitled parent may start enforcement proceedings against the liable parent, and this is most commonly done by filing an enforcement summons in the Family Court.

Adoption

Introduction

The adoption of children within Tasmania is governed by the Adoption Act (Tas) 1988, and the Adoption Regulations (Tas) 2006. All sections, regulations and rules are from these sources unless otherwise indicated.

Adoption creates new family relationships in law. The child ceases to be the child of the original parents and becomes, for legal purposes, the child of the adopting parent or parents (s50, Adoption Act). Thus, for example, the adopted child has a right to be maintained by the adopting parents but no longer by the original parents; the child will succeed in intestacy to the estates of adopted relatives, not the original ones (although an adopted child may succeed under a will of an original relative in some circumstances, s52, Adoption Act). If the relationship between the adopting parents and the child breaks down it will come under the ordinary child welfare system.

Adoption is essentially permanent although there is power to discharge an adoption order (s28, Adoption Act). This would only occur in the most exceptional circumstances.

The Adoption Act

The Adoption Act (Tas) 1988 establishes that the welfare and interests of the child or adopted person shall be regarded as the paramount consideration at all times, and requires officials administering the Act to have regard to adoption as a service for children. Depending on the age and understanding of the child, the child’s wishes and feelings must be ascertained and be given due consideration.

The Act allows adopted persons over 18 years to obtain copies of their original birth records and other information concerning their adoptions, after receiving counselling. Adopted children under 18 years can also obtain copies of their original birth records and other information concerning their adoptions, but with the written agreement of their adoptive parents and each natural parent who consented to the adoption.
Under the Act, natural parents of an adopted person to obtain information concerning the adopted person with the written agreement of the adopted person, if over 18 years, or with the written agreement of her or his adoptive parents, if under 18 years.

The Adoptions and Permanency Service within the Department of Health and Human Services (DHHS) is established under the Adoption Act, as are approved adoption agencies. These bodies are authorised to:

  • provide counselling and advice;
  • establish and maintain an Adoption Information Register; and
  • facilitate the provision of information to persons on that Register.

The Act introduces additional safeguards to protect the rights of relinquishing parents including:

  • mandatory counselling prior to signing adoption consent;
  • provision of written information concerning the meaning and effect of adoption and the alternatives to adoption prior to signing consent;
  • provision for additional prescribed witnesses to the signing of consents;
  • provision for written advice to a relinquishing parent of certain events following the signing of consent.
  • Provides for the consent of the father of an ex-nuptial child to be required in certain circumstances.
  • Introduces additional grounds for dispensing with a parent's consent.

The Secretary of the DHHS is authorised under the Act to make arrangements for the adoption of children from overseas by approved persons and provides for the Secretary to exercise supervision and guardianship of such children following their arrival in Tasmania (referred to as intercountry adoptions).

Some other important aspects of adoption that the Act regulates include financial assistance available to facilitate the adoption of certain children in special circumstances. The Act restricts the adoption of children by spouses of natural parents or relatives to special circumstances relevant to the needs of the child, and provides for specific criteria relating to eligibility and approval to adopt to be prescribed by regulation in all circumstances of adoption.

Who Can Adopt Children?

Assessment and Approval

Applicants may apply to either an approved agency or the DHHS to adopt a local child. Applicants for intercountry adoption must apply to the DHHS. The Regulations prescribe the application and assessment fees. Applicants are not to be accepted for assessment unless they satisfy the Secretary or the principal officer of an approved agency that they fulfill all of the following requirements:

  • that in the case of joint applicants they are husband and wife, or are parties to a registered significant relationship or are residing together in a stable continuous relationship (i.e. the applicants do not have to be married at the time of their initial assessment but are required to be married prior to the making of the adoption order);
  • that each applicant is resident in Tasmania and each is a permanent resident of Australia;
  • that each applicant is an Australian citizen; or in the case of joint applicants, that one of the applicants is an Australian citizen;
  • that each applicant is in good physical and mental health and it is reasonable to expect that health will be maintained;
  • that each applicant has not been sentenced to a term of imprisonment for a criminal conviction within a period of 5 years preceding the application;
  • that each applicant has not been sentenced to a term of imprisonment of 5 years or more at any time;
  • that each applicant has not been convicted of any offence against a child;
  • that each applicant is not undertaking a treatment for infertility;
  • that a female applicant is not pregnant (Reg 15).

Once an application is accepted, the applicants will then be assessed to determine their suitability. This will involve medical evidence and interviews, and detailed discussions with social workers and/or other Department officers. Only the Secretary or the principal officer of an approved agency can approve applications for adoption. An approval is valid for three years with provision for three extensions of up to two years per extension (Reg 22).

Adoption Placement and Requirements

Eligibility for Local Adoption or Intercountry Adoption

In the case of a child who is subject to a general consent – i.e. a local adoption or an inter-country adoption, an adoption order is usually only made in favour of a married couple. Their relationship must be of at least three years duration, but that period can include the time the couple resided together in a stable continuous relationship before their marriage. However, the court may make an adoption order in favour of one person if it is satisfied that exceptional circumstances exist in relation to the welfare and interests of the child which make it desirable to do so (s20(4)Adoption Act).

 

The applicants must also be at least 18 years older than the child, although the court may also waive that requirement (s22).

The court may not make an adoption order unless each of the applicants fulfils the prescribed requirements relating to approval. These requirements are contained in the regulations and may be amended from time to time.

The court must be satisfied that the adoption order would promote the child’s welfare which is the paramount consideration and that any wishes expressed by the consenting parents in relation to the religion, race, ethnic background, etc of the adoptive parents have been considered by the Secretary of the DHHS or principal officer.

Local Adoption

Very few local children are offered for adoption. Some of these may be older children or have special needs. Every effort is made to select the most suitable available parents who will best meet the needs of the particular child. The consenting parent may also be involved in the selection process and may express wishes about on-going contact or information about the child. Where both the consenting parent(s) and the adopting parent(s) agree, they may choose to meet each other and to maintain contact. This is known as "open adoption".

Intercountry Adoption

Intercountry adoption is the most common form of adoption these days, although the number of children available is decreasing. A fundamental principle of intercountry adoption is ensuring that the best interests of children needing adoptive families are met. This is in line with Australia’s international obligations.

Intercountry adoptions are part of State-Federal cooperation. The Australian Government Attorney-General’s Department ensures Australia meets its international obligations, and is responsible for the various intercountry adoption programs in different States and Territories. State and Territory governments are responsible for the processing of individual adoption applications.

Families who seek an intercountry adoption must meet standard assessment criteria as well as the specific requirement that the prospective adoptive parent has an understanding of, and interest in, the culture of the child's background and the capacity and commitment to facilitate maintenance of positive links with that culture (Reg 18(g)).

In addition to these criteria, the applicants must also meet the criteria set by the child’s country of origin.

Private Adoption

Private adoption is illegal in most States and Territories. Adoption must be in accordance with the Adoption Act or satisfy the requirements for expatriate adoption. This is where an Australian abroad has adopted a child according to the laws of the country from which the child originates.

Adoption by Spouse of Natural Parent or Relatives

Step-Parents: Known Child Adoptions

Many couples who enquire about adopting a child born to one of them, or born to a relative of one of them, are really seeking to bring about a change in the child's legal name rather than become involved in the process of adoption. They may, in error, believe that adoption is the only way in which this can be achieved. A change in surname through the Births, Deaths, and Marriages Registry is a much simpler process and one which does not attract the sometimes complicated consequences of obtaining or seeking an order of adoption. It should be remembered that the copy of a birth certificate will show the child's original name, together with the entry recording the change of name.

Where a custodial parent marries or is in a relationship with a person other than the child's other biological parent, and they wish to achieve more than change the child's legal name, adoption may still not be the most appropriate course. It is desirable for them to give careful consideration to the effects of adoption. After adoption, not only does the child cease to be the child of the original non-custodial parent but the adoption order terminates the child's relationship with all the other relatives forming part of the child's extended family on the side of the non-custodial parent. At the same time the children would acquire a new set of grandparents and other relatives arising out of the relationship created by the adoption between the children and the person who would now be their adoptive parent.

It is necessary for those who seek such adoption orders to give careful consideration to whether or not the termination of such relationships will benefit the child.

The making of adoption orders in favour of a spouse of a natural parent or relative is restricted by specific requirements (ss20 and 21Adoption Act). The consent must be a specific consent for adoption by particular parents (ss29 and 33(2)), and the application may only be made by the Secretary (s18).

Where a spouse of a natural parent is seeking to adopt his or her spouse's child of a previous marriage, it is necessary to obtain leave from the Family Court of Australia before an adoption application proceeds. If leave is granted this does not necessarily mean that the Secretary of the DHHS will support a subsequent adoption application, or that the court will make an order if it is not satisfied that the specific requirements of the Act are fulfilled (s24).

There is no prohibition on private placement of children with relatives of the child. Where, however, the couple wishes to adopt the Secretary must make the application to the court. It is wise for the applicants to discuss this matter with a solicitor and with the DHHS as in many cases a custody or guardianship arrangement such as a parenting order may be more appropriate, and less costly, than adoption to secure the child’s welfare.

If the spouse of a natural parent of a child, or a natural relative of a child wishes to proceed with an application to adopt, they must satisfy the prescribed criteria and go through the same assessment and approval process as any other applicant for adoption.

In some instances, families who have raised the child may decide to wait until the child turns 18 before an application is made (s19(1)(b)). However, if a child is not adopted by the family until after 18 years of age, and the child (now an adult) is or has been married, they cannot be legally adopted.

Spouses or Relatives

The spouse of a natural parent of a child, or a natural relative of a child, may wish to  formally become the parent of the child. ‘Spouse’ is defined to include the other party to a significant relationship which is registered under the Relationships Act (Tas) 2003. This means that a child may be adopted by the partner of his or her parent or by relatives, regardless of whether the partners or relatives are a same sex couple or a heterosexual couple. The relationship must be of at least three years duration and be registered at the time the adoption order is made.

Same-sex Adoptions

Same-sex adoption is currently the focus of a campaign in Tasmania to change the law around adoption to allow same-sex couples to access domestic and intercountry adoption procedures on equal footing with married, heterosexual couples. Same-sex couples are currently denied the right to marry, and thus cannot adopt as the legislation does not permit unmarried couples to apply to adopt, except in the ‘step parent/known child situation.  

Currently, same-sex couples can access the ‘known’ child adoption mechanism, which is the process detailed under Step-parents – ‘known’ child adoption. Section 20(2A) of the Adoption Act only allows a party in a same-sex relationship to adopt the child of their partner, where their partner is the natural or adoptive parent of the child, or where they or their partner is a relative of the child.

However, under the Status of Children Act (Tas) 1974section 10C(1A), where a woman is in a significant relationship with another woman and, with the consent of that other woman, undergoes a fertilization procedure as a result of which she becomes pregnant, the consenting woman is, for the purposes of the law of the State, to be treated as if she were the parent of any child born as a result of that pregnancy. This means that the adoption process is not necessary where a lesbian couple have a child by IVF together. If the child is born before the couple begin a relationship, the same-sex adoption procedure will apply.

The Court's Attitude

The court’s adoption practices are an important factor in the administration of the Adoption Act 1988 (Tas). The courts have recognised that there is strong evidence to support the policy that children have a right to know that they are adopted. This applies to children adopted in the conventional sense of the word as well as those adopted by spouses of natural parents or relatives. The court recognises the potential trauma and/or damage to a child resulting from accidental or malicious disclosure by other persons. Adoption is a matter to be discussed with the child by those closest to him or her, who know the proper circumstances of the child’s background and who will assist in a most tactful and constructive way.

As a result, the court will not, as a rule, approve or make an adoption order for a child in the care of proposed adoptive parents unless the court is satisfied that the adoptive parents intend to start the process of informing the child of his or her status while the child is young. If the child is no longer young the court will have to be satisfied that this process has begun.

A similar issue affecting the adoption in natural and relative cases is the severance of, or the maintenance of, the relationship or contact between the child and the original parents. The question is particularly relevant to cases where the original parents were divorced or where the child is to be adopted by the parents of the natural mother. This issue also arises quite frequently where the original mother is very young at the time of the child’s birth.

The Adoption Process

Adoption by Consent

If the mother was married to the father at the time of the birth, or subsequently, both parents' consent is required (s29(2), Adoption Act 1988). Where a child is born to a single woman, her consent is required to the child's adoption. The father's consent is also required if he has taken certain specified action to legally establish his paternity before or within 30 days of the day on which the mother signs consent, for example, he is named on the birth certificate or there is a declaration of parentage under the Status of Children Act 1974 (s29(3)).

The consent is in a prescribed form and the signature on it must be witnessed by two people authorised to witness consents (s30Reg 24). Before a parent signs consent he or she must receive counselling and be given written information on the effect of adoption and alternatives to adoption, not less than 24 hours before signing consent (s31). The first witness must certify that the consenting parent received the counselling and written information. The consent may not be signed by the mother before the child is born or earlier than seven days after the birth, unless it is proved that the mother was in a fit condition to do so (s36). Normally the consent is taken by a DHHS or approved agency worker seven clear days after the birth - that is, not earlier than the child's ninth day of life.

Except in the case of adoption by a spouse of a natural parent or relative (see below), the consent must be a general consent to the child's adoption by any persons in whose favour an adoption order may be made (s33). This enables the agency to select the adoptive parents it thinks appropriate. The parent may include in the consent any wishes about:

  • the religious convictions;
  • ethnic background;
  • marital status;
  • sexual orientation; or
  • race

of the adoptive parents (s24) and also ongoing contact or exchange of information about the child. The Secretary of the DHHS or principal officer are required to make reasonable efforts to place the child with an approved couple who would bring the child up in accordance with those wishes (Reg 29).

This is an obligation taken most seriously by the Secretary and principal officers and they are required, if they are unable to place the child in accordance with the wishes of the consenting parent, to justify that to the satisfaction of the court. However, there is no legal redress if the adoptive parents, after the order of adoption is made, change their mind or do not honour any undertaking or agreement that they have entered into to comply with the wishes of the consenting parent(s).

Once all the required consents are given, this has the effect of making the Secretary the child's guardian who then has the power to make all decisions about the child until the adoption order is made (s40). The consent can be revoked within 30 days of its being given in which case the parent would normally be entitled to have custody of the child (s35).

Releasing a Child for Adoption

A parent or guardian who wishes to place a child for adoption must make arrangements through the DHHS or an approved adoption agency. If the object is to place the child in the care of relatives, arrangements can be (but do not have to be) made through a solicitor for the completion of the appropriate formal documents, but the application to court can only be made by the Secretary.

Dispensing with Consent

Although the parents' consent is normally required, in some circumstances the court may make the adoption order without it. This process is called dispensing with consent (s37).

The court may dispense with the consent of a person (other than the Secretary) to the adoption of a child where the court is satisfied:

  • that a person whose consent to the adoption of a child is required cannot, after reasonable inquiry, be found;
  • by a certificate signed by not less than two legally qualified medical practitioners, that any such person is incapable on psychiatric or other medical grounds of properly considering the question;
  • that the person has abandoned, deserted, persistently neglected, or ill-treated the child;
  • that the person has seriously ill-treated the child to the extent that it is unlikely that the child would accept, or be accepted by the person within the family;
  • that the person has, for a period of not less than one year, failed, without reasonable cause, to discharge the obligations of a parent of the child;
  • that the person is unable to meet the needs of the child due to the person’s physical or mental disability; or
  • that there are any other special circumstances which justify dispensing with consent.

Who controls adoption?

Jurisdiction over the making of adoption orders in Tasmania is vested in the Magistrates Court (Children’s Division). Adoptions may be arranged by the Secretary of the DHHS or by an approved adoption agency. An approved adoption agency is usually a non-profit, non-government organisation. In Tasmania, the only approved adoption agency is Centacare.

The DHHS is the primary adoption agency in the state and is responsible for adoption of children the subject of general consents (referred to as ‘local adoptions’), relative or spouse of natural parent adoptions and intercountry adoptions. Other adoption agencies may only operate with the approval of the Minister (Part 2 of the Adoption Act and Part 2 of the Adoption Regulations set out the specific requirements affecting approved adoption agencies). The only approved agency in Tasmania is Centrecare which deals with local adoptions. The system prohibits private arrangements with a view to the adoption of a child except between relatives of the child as defined in the Act (s3Adoption Act).

It is an offence to place a child for the purpose of adoption except through an approved adoption agency or with specific approval of the Secretary of the DHHS (s110). Applications to the court for adoption orders can be made only by the Secretary or the principal officer of an adoption agency, on behalf of the prospective adoptive parents (s18). The consent of the original parent(s) must be a general consent, that is, they (or he or she) cannot nominate the person to adopt the child, unless they (or he or she) are relatives of the child as defined by the Act (s3).
These rules effectively mean that no one may adopt an unrelated child unless he or she has been assessed and approved by the Secretary of the DHHS or the principal officer of an approved adoption agency as a suitable person to adopt the child and the placement of the particular child has also been approved. Finally the legal process for making application for an adoption order is subject to close scrutiny by the Magistrates Court.

It must be remembered that adoption relates to the welfare and interests of the child concerned (ss8 and 17). Adoption is, in essence, a legal action which dramatically changes the legal status of all the parties to the particular adoption — the adopted child, the original parent(s) and the adoptive parents.

While these principles apply to adoption generally, the process outlined above is somewhat different for the adoption of the child by the spouse of a natural parent or a relative. These adoptions will be dealt with separately.

Generally speaking, the children who are the subject of adoption arrangements are:
• ex-nuptial children born to a single mother;
• children who are in Departmental foster care where the parents and the Secretary have reached the conclusion that the child's best interests will be served by it being adopted (that is, by foster parents).
• non-citizen children (children from overseas who have been placed for adoption with approved Tasmanian applicants).

Contacts and Resources

Department of Health and Human Services

The DHHS website provides information on State level adoption services.

Attorney-General’s Department

The Attorney-General’s Department website provides useful information on a range of topics and issues associated with adoption.

Births Deaths and Marriages Registry

This site provides information about how to change a child’s name.

Disclaimer

This does not constitute legal advice and the Tasmanian Law Handbook should not be used as a substitute for legal advice. No responsibility is accepted for any loss, damage or injury, financial or otherwise, suffered by any person acting or relying on information contained in it or omitted from it.