by gorvallynch10 Things You Must Know About Family Law in Australia
10 Things You Must Know About Family Law in Australia
- Can I bring a de facto relationship property claim?
Yes, if:
- You have been living together on a genuine domestic basis for a period of at least two years; or
- There is a child of the relationship; or
- One person made substantial contributions to the relationship both financial or non-financial and a failure to make an order would result in serious injustice.
- I have just separated from my partner should I leave the family home?
Neither person can be forced from the family home except in circumstances of domestic violence allegations, however, either person can apply to the Family Court to obtain an order for exclusive occupancy. The Court will consider whether there are young children, whether the relationship is acrimonious, and which person can best financially support themselves outside of the home.
- Are there any important deadlines for filing court documents?
For property matters:
- If you are married there is no time limit. You can make the application after separation.
- If you have a divorce order: 12 months from the date of the order.
- If you are in a de facto relationship: 2 years from the date of separation.
For parenting matters only, there is no time limit in which to make an application.
- How does a court decide who children live with and how much time each parent gets?
- The best interests of the child. Meaning: the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from harm.
- Also the court will consider: the child’s views, any failure of a parent to fulfil their obligations as a parent, the effect on the child of separation from either parent or from any other person with whom the child has been living, the practical difficulty and expense of a child spending time with a parent.
The Court must consider equal time however in practice regularly makes a finding there is one parent the child spends the majority of time with and the other parent the child spends significant time with (often every second weekend, one school night every second week, and half of school holidays).
It is rare that one person will be prevented from seeing their child – only in cases of severe harm.
- How does a Court divide up assets?
- Value the property pool
- property owned when relationship started
- capital gain of property already owned
- property acquired during relationship
- property acquired after separation
- employment entitlements
- superannuation
- life policy surrender values
- business interests, company or trust interests
- money owing to the parties
- compensation & damages awards
- inheritances
- lottery wins (see windfalls in step 2)
- notional property that needs to be added back
- debts and mortgages
- borrowing capacity
- Assessing each person’s contribution to the relationship property (s. 79(4) Family Law Act)
- financial contributions direct or indirect
- non-financial contributions
- contributions as a homemaker or parent
- effect of orders on earning capacity
- s. 75(2) matters (see list at step 3)
- any orders affecting a party or child
- child support
- windfalls
- special contributions
- waste or negative contributions
- effect of domestic violence
- Identify future needs & resources factors (s. 75(2) Family Law Act) “the s. 75(2) factors”
- age & health of the parties
- income, property & earning capacity
- financial resources
- whether caring for children
- commitments to support themselves, children
or another
- pension entitlements
- a standard of living that is reasonable
- enabling a course of education
- extent of contribution to the earning capacity of the other
- duration of marriage & how that affected
earning capacity
- protection of the role of parent
- if cohabiting with another, the financial
circumstances relating to that
- effect of the proposed orders
- any child support
- any other factors it would be just to take into
account
- any binding financial agreements
- Overall justice & equity (s. 79(2) Family Law Act)
“The court shall not make an order … unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.”
- Do people have to disclose all of their property interests?
The Court requires disclosure of all sources of income, assets, liabilities and any financial resources, including through companies and trusts.
This does not mean that the asset or property disclosed will necessarily be divided in the property settlement. That issue is decided by the concept of “contributions.” It may be possible that an asset is 100% contributed by one person and therefore kept by that person.
Lawyers can obtain information about a person’s assets by:
- Subpoenas to banking institutions, accountants, the ATO, and others;
- ASIC or land registry searches to find interests held by a person in a company or land;.
- Issuing a request to a person’s superannuation fund for information about their superannuation.
- What happens if someone has withdrawn money from joint accounts?
If one person has withdrawn money without the consent of the other and has spent the money or transferred it to where it cannot be recovered then the Court can “add it back” to the property pool of assets to be divided.
This will have the effect of taking that money into account in any division of assets as though the person who withdrew it is keeping as part of their share of the assets.
- Are there alternative ways to pay my family law legal fees?
If you cannot afford to pay your legal fees as you go, you could apply for a partial property settlement, which as the name suggests, enables a person to receive part of their financial entitlement prior to the matter being finally determined.
- My ex-partner has taken the children interstate or overseas – what can I do so they are returned?
If your ex-partner refuses to return you can make an urgent application to a court for an order for your ex-partner to return with the children back to your location.
The court will take into account and balance the child’s best interests with the ‘right’ of the proposed relocating parent’s freedom of movement.
There is a convention known as the “Hague Convention on the Civil Aspects of International Child Abduction” which prevents child abduction overseas to signatory countries. Examples of a countries that have not signed are Lebanon and China (although Hong Kong is a special case). If you are worried, an urgent application can be made to notify the relevant airport to stop the parent at the departure gate.
- How to apply for a Divorce?
We have “no fault divorce” in Australia; you only need to say your marriage has broken down irretrievably and there is no reasonable likelihood that you will resume your relationship. You need to make sure financial arrangements have been made for the care of any children under the age of 18 years.
To apply for an application for Divorce you and your spouse must have been separated for at least 12 months and one day.
There is a common misconception that the granting of a divorce also addresses the division of matrimonial property and the care arrangements for the children of the marriage. This is not the case.
by gorvallynchCFMMEU and Jamsek Recent HCA Decisions
The High Court recently clarified the law on how the Court will determine who does and who does not qualify as an independent contractor as compared to an employee. The Court will look to the terms of the contract to decide the nature of the relationship, while confirming mere labels are not determinative.
In Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1, a construction worker, Mr McCourt, signed a contract with Constructs, a labour hire company. The contract (titled Administrative Services Agreement) labelled the worker as a self-employed independent contractor who provided services to Constructs. Constructs assigned the worker jobs at construction sites run by Hanssen Pty Ltd, a building company.
The main issue in this case was whether McCourt was an employee of Constructs or an independent contractor. If McCourt was an employee for the purposes of the Fair Work Act 2009 (Cth) he would be entitled to benefits such as paid personal leave and annual leave.
The High Court, by majority, found that where parties have primarily recorded the terms of their relationship in written form, the determination of whether that contract is one of employment or contractor must come from an analysis of the rights and obligations of the parties under that contract. Assuming the contract itself is in no way defunct, these rights and obligations are determined according to established principles of contractual law.
In this instance, the ASA dictated to McCourt who he was to work for – Hanssen – and that he was to follow the directions of Hanssen in return for payment by Constructs. The fact that the terms of the contract were that Constructs had control over who McCourt worked for and had the responsibility for providing a compliant workforce to Hanssen revealed the core of the relationship between the two parties. Mr McCourt was held to be an employee of Constructs. This was despite the label of independent contractor being used to describe McCourt.
While in ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2, the High Court unanimously held that two truck drivers were not employees of ZG Operations Australia Pty Ltd (ZG).
From 1977 to 1985 it was agreed the truck drivers were employees of ZG. However, in around 1985 they accepted ZG’s proposal to ‘become contractors’ and own their own trucks. Both drivers formed partnerships with their respective wives and signed written agreements with the company where they essentially took over the role of maintaining and operating their trucks. After singing these agreements, the primary contracting parties became the partnerships and the company, ZG.
The contracts between the partnerships and the company purely concerned the ability of the partnerships to operate the trucks owned by the company and the provision of a driver to drive those trucks. This relationship was not one of employer-employee but of independent parties contracting with each other, aware they were moving away from an employee employer relationship and into an independent contracting relationship.
The truck drivers were held to be independent contractors and not employees.