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Your Practical Guide to Australian Family Law


The Family Law Handbook, 2nd Edition is a practical guide for people involved in or
THE
FAMILY LAW
thinking about separation or divorce. Written in plain English, it explains the workings of
the Australian system of family law, including recent major changes to the law affecting
family relationships. The Handbook sets out choices and practical issues and tasks that face
a separating couple.
The Fanily Law Handbook is invaluable in that it discusses not only how the family court

HANDBOOK
works, but all aspects of separation, including:
• what to do after the breakdown of a marriage or de facto relationship THE
• negotiating with your former partner
FAMILY LAW
• understand the court process and requirments

• understanding the mandatory dispute resolution processes


HANDBOOK
• making the best possible arrangements for your children

• successfully achieving a fair property settlement 2nd EDITION Maree Livermore 2nd EDITION
• going to court, with or without your lawyer.
Livermore
The Handbook contains samples of parenting plan provisions, court orders, forms and
affidavits that can be adapted for individual use, and a list of useful contacts and resources.
The Family Law Handbook, 2nd Edition is not only a must-have for those going through a
family law matter, it is also a most valuable reference for workers in the field of family law;
including counsellors, mediators, educators, social workers, public servants, students and
legal practitioners.

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For further information visit: www.thomsonreuters.com.au


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1
The family law system

Leaving a relationship is not a moment but a process. There are stages


along the way, and different aspects of wellbeing – emotional, physical,
financial, children’s – to monitor and manage. There may be steps for-
wards and steps backwards, and different routes to choose between. But,
sooner or later, most people reach a point at which they can stand back
and see that their personal life and financial affairs are effectively dis-
engaged from those of their former partner, and that their parenting
arrangements have settled into a new pattern. Only then can it be said that
the process of separation is complete.
The most important thing at the start is to understand the landscape in
which this journey from separation to separateness takes place. Read the
first few chapters of this book. Get some legal advice. Then take some time
to think. The decisions you make at the beginning may greatly affect the
difficulty and duration of your journey. You need to plan the most effec-
tive and least costly way to proceed.

If you are not yet separated (in your mind) …


If you have not yet truly decided in your mind to separate from your partner,
this is your only task for the moment. Don’t sit down to calculate possible
property settlement results if your relationship still hangs in the balance.
You owe it to yourself (and maybe also to your children) to take whatever
time and energy are required to work out the value of the entire relationship
to you in personal terms – without the confusion of financial ramifications.
The personal decision is hard enough in any case.
So don’t put the cart before the horse. If you are not settled in your own
mind about whether to continue in a personal relationship with someone
else, do sort this out first. Talk with your partner. See a counsellor, together
or separately. (For details about how to find a counsellor, see page 56.)
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2 The Family Law Handbook

Decisions at separation
If you really have decided to separate, you have four main groups of deci-
sions before you.

Practical arrangements
You need to decide who is going to move, where to, and when; how to
finance the move; and what interim income, expense and debt manage-
ment arrangements you can make, including Centrelink payments. These
matters are discussed in detail in chapter 2.

Parenting arrangements
For couples with children, perhaps the most important task is the design
of workable, cooperative post-separation parenting arrangements that
meet the needs of the children in the new circumstances of the family. See
chapter 6 for detailed information about this.

Property settlement
Initially, all you need to do is set the wheels in motion. It is often better not
to push to settle on property issues too soon after separation. But it is
useful to get some idea of what the law would decide was a fair distribu-
tion of assets in your circumstances, and to plan the process for the smart-
est possible resolution of the issue at the right time. See chapter 7 for a
description of the property settlement process; and seek legal advice.

Dispute resolution strategies


You are no longer ‘of one mind’ with your former partner, and yet now
many joint decisions are required to achieve separateness with minimum
damage to each other and to the children. How are you going to manage
this? You know yourself, your partner and your conflict resolution capac-
ity well. See chapter 3 for detailed discussion of various dispute resolution
strategies. Decide an approach with your former partner if you can.

The big picture


Keeping sane
The process of resolving parenting, property and financial conflict at the
end of a relationship is almost inevitably a very stressful experience –
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The family law system 3

whether you achieve the resolution by private negotiation, mediation or


litigation. There is, first, the discomfort of (perhaps public) discussion of
highly sensitive personal issues, and the difficulty of appearing to address
those issues unemotionally. Second, parties on both sides are often still
trying to come to terms with major and grievously unhappy changes in
their life circumstances. They may not be in the best possible shape for
dealing with a dispute.
If you become over-stressed you are in danger, at the very least, of
making poor decisions in settlement negotiations.
So it’s important to plan seriously to take care of yourself. You will need
a regular exercise regime, and someone outside the process – a profes-
sional or a friend – to talk to about what’s happening. You need to try to
maintain a life outside your family law dispute. Eating, thinking and
breathing your dispute will lead to poor decisions and poor outcomes.

The trend away from litigation and


towards dispute resolution
There are many different strategies available to separating couples
seeking settlement of their property, parenting and finance issues. These
include private negotiation (face-to-face, by telephone, by correspond-
ence); mediation (face-to-face, by telephone, in ‘shuttle’ mode); joint coun-
selling; negotiation assisted by lawyers; arbitration; and legal action (with
self-representation, or legally-aided or privately funded representation).
All these options are open to some people. The more expensive ones are
not open to many. But decades of experience in the family law system have
convinced community service workers, counsellors, the courts themselves
and even many lawyers that litigation is not the most effective way – for
anyone – to resolve a dispute about property, money or, especially, children.
Australian society is changing. More people are agreeing to work pri-
vately together to resolve their disputes than ever before, and the trend is
confirmed and encouraged by government policy. Major changes to the
family law system in 2006 entrenched the requirement for parties to make
a genuine attempt to resolve their disputes without a court decision, and
provided support structures for them in doing this.

Behaviour check
Losing your cool at the wrong time can result in the total waste of your
hard-won progress in mediation to date (as you watch your partner
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4 The Family Law Handbook

charge down the street to the solicitor’s office). If it happens in court, your
case before a particular judicial officer might be irretrievably damaged.
The stress of relationship breakdown and conflict over important
matters leads many of us into exhibitions of our least appealing character
traits. Unfortunately, this is a time when you can ill afford to lose control.
Despite reforms to the system, the family law process flourishes on dis-
plays of substance abuse, bad language, ‘hysterical’ behaviour, violence,
and inability to act like ‘a responsible member of society’.
You must ensure that your language and behaviour remain moderate
and proper at all times – and especially in the presence of your former
partner and children. Take care not to denigrate (criticise or tear down)
your former partner in the presence of your children. If you fail to control
your behaviour on any occasion, and you end up in court, you can expect
to find the details of what might have been a momentary lapse mercilessly
detailed in the other party’s statements.

Children are not property


Public policy discourages approaches that have the child ‘fairly divided’
between parents, like an asset to be distributed. By various reforms to
family law, parliament has worked hard in recent years to change parents’
attitudes about their ‘rights’ to their children, encouraging the idea that it
is the children who have rights (such as to be safe, and to be able to be
with, and be cared for by, both their parents).
It is difficult for many parents to see their child’s interests as separate
and perhaps different from their own, especially when the pain of even a
short-term separation from the child seems unbearable. But this is the task
for a separating parent. And although parents themselves are not legally
bound to prefer their children’s best interests to their own, many media-
tion organisations require parents to consider the children’s best interests
as a condition in their mediation agreements. Furthermore, if the dispute
does reach a court, the court will determine an objective picture of what is
in the child’s best interests, and may retrospectively assess whether the
behaviour of parents indicates a similar orientation.
See chapter 6 for a full discussion of the ‘best interests’ principle.

‘Winning’ and ‘losing’


It is easy for participants in a family law dispute to be drawn into a false
idea of winning and losing. Many people find that ‘winning’, in the end, is
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The family law system 5

not the same thing as achieving the outcome they originally set out to
obtain. They find instead that winning is more about moving forward into
the future with a sustainable lifestyle, good relationships, good health and
a positive self-image.
If you have ‘won’ in a court process at the expense of your health, your
conscience, the good opinion of your children, or the ability to make
cooperative decisions with the other parent, you may find, in the longer
term, that you have ‘lost’ – and that, in fact, you have lost a great deal.
On the other hand, if you settle your dispute early (or even, by your own
estimation, you ‘lose’ or ‘give in’ at court) you may be able to re-form suf-
ficiently good relationships to return fairly soon to a state of personal
equilibrium, and retain the potential, in parenting matters at least, to
negotiate more satisfactory arrangements later on.
It’s important to get a realistic idea of your prospects from a lawyer at
an early stage. Pursuing small differences over months of haggling may be
a waste of legal fees, and of emotional and relationship resources. Settling
early – and making some concessions – could be your most productive
way out of a process that doesn’t in itself produce too many true winners.

Is it worth it?
Damage to your, and your children’s, emotional state and recovery pros-
pects accrues in every week that your legal dispute goes on, while destruc-
tive communications are exchanged. Many people spend years of their lives
in dispute about property settlements and parenting arrangements. They
lose much of their settlement in legal fees and career impetus; they suffer
from depression and ill-health; their children are sad, tired and disturbed.
Remember that it is open to you, at any point, to choose not to be one
of them. You can close the deal on the best terms available to you right
now – and then get on productively with your new and real life.

Finding the relevant law


Even if you decide to try to come to agreement with your former partner
on property, parenting and financial matters privately, it is important for
both parties to understand the range of results they might expect in court
if their dispute resolution efforts fail. If both parties understand and
accept their legal rights and responsibilities there is likely to be a quicker
settlement, and a more sustainable long-term agreement.
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2
Marriage, separation and
divorce

The modern law of marriage grew from the ancient concept of the unity of
a man and a woman ‘joined’ under the marriage rite. The relationship
between a man and a woman in this archaic legal fusion – the marital rela-
tionship – influences much of family law in Australia today.

The law of marriage


The obligation to support your spouse
The obligation on spouses to support each other financially comes into the
Family Law Act (s.72) from the common law. The basic responsibility for
maintaining a spouse differs from the old law in that it applies:
• to both spouses, not just the husband
• only when the supported spouse is experiencing some kind of inability
to support him or herself.
This obligation exists for all spouses. In practice, however, it usually only
becomes relevant on marriage breakdown.

Ownership of property
The law long ago established that men and women can own property sep-
arately after marriage. They can also hold it together if they wish, either as
joint tenants or tenants in common, but co-ownership never arises from
the simple fact of marriage, as it once did. This is in contrast to the concept
of ‘community property’ applying in Europe and some US states.
Nevertheless, in proceedings relating to property the Family Court may
‘make such orders as it considers just and equitable’ in respect of all the
property of the parties, whether owned jointly or separately (Family Law
Act s.79). See chapter 7 for a detailed discussion of property issues.
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Marriage, separation and divorce 27

Marriage also remains relevant to property distribution on the holder’s


death. For example, a marriage automatically revokes a person’s will; and
if someone dies without a valid will their property passes under the laws of
intestacy to their spouse.

Advantages of marriage at relationship breakdown


Leaving aside questions of personal preference and religion, considerable
legal advantages still flow from the status of marriage.
Ironically, one of the principal benefits of being in a marriage (as
opposed to a de facto relationship) is that if you have to end it, you come
under the jurisdiction of the federal family law system. This system is
quicker, cheaper and altogether more accessible than the state-based
systems that deal with other forms of domestic relationships.
The advantages of the federal system are even greater if you were sup-
ported by your partner, and you will continue to be the principal carer for
your children after separation. The Family Law Act requires the courts, in
dividing marital property, to consider the future needs and resources of
the separating partners in relation to income, and such matters as the cost
of raising children. The various state laws providing for property distribu-
tion between former de facto partners do not consider such factors.
Additionally, under many insurance policies and workers’ compensa-
tion schemes only a ‘surviving spouse’ – that is, a marriage partner – can
recover death benefits or compensation for wrongful death.

Marriages made overseas


Most marriages validly made in another country are recognised in Aus-
tralia. You can also obtain a divorce for an overseas marriage, as long as:
• at least one of the parties lives in Australia, and
• the validity of the marriage can be formally proved by a marriage
certificate or other document (with a translation if it is not in English).

Marriage under Aboriginal customary law


A marriage in accordance with traditional Aboriginal law is not recog-
nised as valid under Australian general law.

The legitimacy of children


The concept of illegitimate children has been dead in Australia since 1987.
The parents’ relationship is irrelevant to the legal status of the children.
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28 The Family Law Handbook

De facto relationships
Separation
Despite its similarity to a marriage in daily life, a de facto partnership bears
little relationship to marriage at law. De facto unions are not recognised
under the common law, so the concept of ‘separation’ between de facto
partners is not recognised either. Under the common law, then, there is no
question of 'rights' or 'fairness' at the separation of de facto partners.
Except in matters concerning children, there is no recognition of de
facto relationships under the Family Law Act.
Property settlement
But for many people the reality is that living in a de facto relationship is much
the same as living in a marriage. To counter the common law position, all the
states and the principal territories have enacted legislation to regulate for
fairness in property and maintenance issues at the conclusion of a de facto
relationship (see page 7 for details of the legislation). The Commonwealth is
constrained by the Constitution from developing similar provisions.
These laws differ significantly from one state or territory to another, and
they do not necessarily provide for the different future needs and
resources of the partners. They may, therefore, offer significantly less to a
more dependent party than would the Family Law Act, if it applied. And
because it comes under state jurisdiction, without the accessibility now
established in the federal family law system, litigation in de facto property
matters is relatively expensive and difficult for self-represented litigants.
Parenting issues
All the child-related provisions in the Family Law Act, and everything in this
book about parenting responsibilities, arrangements, issues, plans, orders
and cases, and about the rights, welfare and development of children, apply
equally to children from de facto and marriage relationships.

Separation for married couples


‘Irretrievable breakdown of the marriage’
Since 1975, the only ground for a divorce in Australia is ‘irretrievable
breakdown of a marriage’. The only way to prove ‘irretrievable break-
down’ is by separation for at least 12 months (Family Law Act s.48).
This separation must be proved by evidence that the marital relation-
ship has been severed. A court will not consider a marriage to be ‘over’ by
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Marriage, separation and divorce 29

reason of temporary or trial separation, or even of physical separation,


without evidence of the severance of the relationship.
Why the date of separation matters
The date of the formal, legal separation affects many important matters –
for example:
• when a person can file for divorce
• when child support becomes payable
• when new Centrelink benefits become payable
• how the court will calculate the property settlement.

Constant fighting, extramarital sex and loss of love


do not prove the end of a marriage …
Peaceful coexistence and monogamous sexual relations are not part of the
legal profile of a marriage. Many people have workable marriages that do
not include these characteristics. Thus, the date that ‘he started his affair’ or
from which ‘we never stopped fighting’ is not in itself very useful.
The relevant indicators of a marital relationship are generally observa-
ble, and about practical matters. As many poets have more than ade-
quately described, love is neither observable nor classifiable. The death of
love is not provable in court and thus is not an indicator of the end of a
marital relationship.

The natural indicators of a marital relationship


Because people live their married lives together in so many different ways,
the law does not try to define, in practical terms, what final separation
must look like. Instead, the severance of the marital relationship is proved
by evidence of change in the overall character of the relationship.
If there is a dispute about the date, or about whether there has been a
final separation at all, the court will look at the total circumstances of the
relationship both before and after the alleged separation. It will look at
whether the parties live together, have sexual relations, cook or clean for
each other, go about together as a couple, jointly care for children, spend
time together, or support and protect each other. These are the some of the
natural indicators of a marital relationship. But the absence of one or
another of them won’t, in itself, be conclusive – there is no magic about
deciding not to cook for someone that will prove final separation.
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3
Negotiation and
settlement

A viable relationship of any sort involves reasonable communication,


some common values, and a preparedness to ‘give and take’. Unless or
until separating parties are able to develop an effective post-separation
relationship – and many people can – the scope for joint decision-making
about children and property may be fairly narrow and based around fields
of self-interest. In some cases these fields may be shown to intersect, and
settlement can take place notwithstanding the remoteness of the parties in
relationship terms. In other cases, the prospect of agreement and early
settlement recedes towards the realms of impossibility as former partners
seek to actually hurt, damage or punish each other.
One way or another, however, many if not most couples identify value
in reaching agreement, at an early stage, on a fair property settlement and
a cooperative parenting relationship for the benefit of their children.

Settling – sooner or later


Most separating couples – the vast majority – manage to resolve their
property and parenting arrangements privately, without court action. Of
those that do go to court, more than 95 per cent come to agreement on the
issues themselves, before any court decision is made.
So even if you feel, right now, that agreement with your former partner
is barely imaginable, you need to accept the reality that you will probably
come to an agreement with your spouse rather than have a court decide
the outcome. Do you want this sooner or later? Are you prepared to pay
$5,000, $10,000, $30,000, $100,000 in legal fees – with the same sort of
money deducted from the property settlement for the other parties’ fees –
for the difference between what you can achieve sooner and what you can
achieve later?
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54 The Family Law Handbook

Options for settling sooner


You can always choose to be part of the five per cent and wait for the court
to decide – or you may feel you have no real choice. But if you wish to
move ahead to finalise your arrangements more quickly and privately,
there are a number of dispute resolution processes from which to choose.
These are:
• negotiation
• counselling
• mediation, and
• arbitration.

Advantages of private settlement


Cost
Settling privately means far less financial cost – in legal fees certainly, but
sometimes also in lost income-earning productivity.
Benefits for children
Children benefit from the early return to a low-conflict, cooperative parent-
ing relationship. See chapter 6 in relation to the damaging psychological
effects of extended parental disputes on children.
Getting your own solution
An agreement you make is likely to be more satisfactory and appropriate for
your circumstances over time than one imposed on you by a court.
Certainty
Going to the Family Court is a bit of a gamble. Since the major restructuring
of the law that occurred in 2006, it is more difficult than ever to predict the
outcome of a particular case. If you retain control of the decision-making
process, you can see what you’re letting yourself in for.
Quick resolution
Final court orders can take between nine months and three years to obtain.
Unresolved personal and financial affairs can become very difficult over that
time. Parties choosing private settlement can move on to develop and
establish their new lives.
Lower emotional toll
Family law litigation is not for the faint-hearted. Parties exchange bitter and
hurtful allegations. Lawyers can be offensive. The court process is stressful,
time-consuming and sometimes very disappointing. Parties who settle pri-
vately are more likely to keep their energy and emotional stability intact.
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Negotiation and settlement 55

Negotiation
Negotiation with legal assistance
A lawyer will always be happy to conduct pre-court negotiations with the
other party on your behalf. If they have a lawyer, you may be better placed
if you also have a lawyer for negotiations (if you can afford it).
Lawyers, however, often do not conduct negotiation with a view to
minimising the adversarial experience of either party. And when you get a
lawyer to negotiate for you, you lose a degree of control over the progress,
the style and, ultimately, the result of the negotiation.
If you feel that your lawyer-assisted negotiations are not going well, tell
the lawyer you’d like to try to manage yourself, pay the bill and collect the
file. It is your right to do this, if you wish, at any time.

Negotiating for yourself


You will definitely save some fees, and you may settle sooner and on a
more secure basis, if you do your own negotiating. You may choose to do
this whether or not the other party is represented by a lawyer – although it
is a very good idea to have legal advice about the issues beforehand.
See pages 64–78 for some hints on negotiating successfully.

Counselling
Relationship counselling
Many couples find that a counsellor can help them towards resolving both
the personal and the practical issues involved in separation.
The counsellor may see the parties together or separately (or sometimes
a bit of both). They may also see children.
Counselling is a more personal experience than mediation. It can take
place over several sessions, without the pressure of impending litigation.
You have more freedom to discuss emotional and behavioural issues. This
may be particularly important if the prospect of reconciliation or adjust-
ment to new life circumstances is a major issue for at least one party.
Joint counselling is not likely to be particularly successful after a
dispute becomes entrenched. See if you can get it started as soon as the
prospect of ongoing difficulties in the relationship arises.
Often, one party is initially unwilling to engage in counselling (or any
other form of dispute resolution). If your partner is unwilling but you
wish to try it, you may need to explain to your partner that court action
will be the inevitable consequence of failure to resolve matters privately,
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56 The Family Law Handbook

and that the first requirement of the court will be for the parties to attend
family dispute resolution proceedings in any case. (You could then
perhaps make an appointment with the counsellor and advise your
partner of the time, place and date. Attend the appointment yourself. If
your partner doesn’t show up you will have the opportunity for a good
talk.)
Personal counselling
Sadness, anger and other personal issues may seem unmanageable around
the time of separation. Many people now see private counselling as an
opportunity for support through this difficult time. Sometimes mediators
recommend counselling to help people to stabilise their feelings in prepa-
ration for effective negotiation and mediation (see Negotiation idea 3: Are
you ready? on page 65).
Counselling under the Family Law Act
The Family Law Act refers to ‘family counselling’ and ‘family counsel-
lors’, and provides for an accreditation scheme. The clients of accredited
family counsellors receive the benefit of important confidentiality protec-
tions (see (see pages 87 and 199).
Finding a counsellor
Relationship and personal counselling may be available free, or with fees
on a sliding scale based on income, from many private or community
service organisations, charities and churches. Psychologists also provide
relationship and personal counselling services. It is a good idea to look for
a counsellor who is an accredited family counsellor under the Act.
The public provision of court-based counselling services is being
wound back. A court may, however, designate court staff to act as an
accredited family counsellor (s.38BD).
Check with your local Family Court registry, a Legal Aid office or the
Yellow Pages for information.

Heads up and counselling!


Counselling can be painful, but vastly less so (and less expensive) than
hashing through private issues in a court case. If you feel unable to start with
counselling jointly with your partner, try talking one-to-one with your own
counsellor first. Schools, unions and workplaces often provide sympathetic
and cost-effective counselling services for members of their communities.
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7
Property

This chapter outlines the principles of property distribution under the


Family Law Act for couples who are or have been married.
Even if you aim to resolve any dispute without court action, you may
find these principles a useful framework for your negotiation and agree-
ment. An understanding of the likely range of results obtainable from a
court if private negotiation fails is an important prerequisite to effective
bargaining. This is sometimes referred to as bargaining in the shadow of
the law. See chapter 3 for more about negotiating.
The chapter goes on to describe, in practical terms, the process of reach-
ing and implementing a property settlement. It then looks at more special-
ised family law property issues such as superannuation, the rights of third
parties (like creditors) and bankruptcy.
The sample property orders at the end of the chapter may be used in an
application for consent orders, as well as in an application to the court.
Most of them are also suitable for inclusion in private agreements.

Settling privately
People do not have to settle their financial affairs at the end of a marriage
in any particular way. They are free to make their own arrangements.
Contrary to popular belief, there is no legal requirement to lodge any form
with the court or obtain court approval for a private property settlement.
Parties can agree to split their assets 50–50, 0–100, 60–40, or even 0–0 (if
they decide to give it all to someone else), then take action to give effect to
their agreement.
Whether this is the best course for you is a question that can only be
answered with the benefit of legal advice. There is a major advantage in
having court orders (including consent orders) – they provide statutory
protection from future property claims.
There are significant financial incentives, however, for private negotia-
tion and settlement. The cost of a fully litigated property case, complete
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318 The Family Law Handbook

with lawyers, starts at about $30,000 per party. When considering an


offer made in private negotiations, it is useful (and sobering) to think of at
least this figure (multiplied by two, for two parties) as funds from the
property settlement that could be lost in legal fees. Are you confident you
could do better in court, with the legal costs factored in?
Many couples achieve cost-effectiveness, enforceability and finality by
managing their own negotiations, with or without mediation or the help
of a lawyer, then filing in court for consent orders when the deal is done.

Not for de facto couples


As explained earlier, the parts of the Family Law Act that give the court power
to make orders for property settlement apply only to couples who are or
have been married.
Property distribution for a couple who are living or have lived in a de
facto relationship is dealt with by state and territory law, which is different
in each state and territory. The relevant laws are listed on page 7. The
scope of this work does not allow a comprehensive review of them.
You should seek legal advice before instituting proceedings as a self-
represented litigant on de facto property issues. State court procedure is
complex and often difficult for non-lawyers, and litigation in state courts
can be expensive. There are significant differences, too, between the enti-
tlements of former de facto partners under state and territory legislation
and those of former married partners under the Family Law Act, particu-
larly in relation to their future needs and resources. All this reinforces the
vital importance of a genuine effort by former de facto partners in dispute
resolution methods such as negotiation, counselling and mediation (see
pages 55–61).
Many of the sample orders on pages 370–375 may be used in the pri-
vately negotiated agreements of separating de facto couples. But the law
and court procedure described in the rest of this chapter does not apply to
parties in de facto relationships.

The court’s four-step process


The court uses a staged process to help it determine a ‘just and equitable
settlement’.
Step 1 involves identifying and valuing the assets and liabilities that
form the global pool of property that is the subject of the settlement.
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Property 319

Step 2 requires:
• assessment of each party’s financial contributions to the family’s assets
• assessment of non-financial contributions (such as homemaking and
caring for children)
• some consideration of ‘negative contributions’, such as violence,
gambling and substance abuse.
At this stage, a preliminary percentage or dollar-value allocation of the
property may be made – on the basis of the contributions assessment only.
Step 3 requires consideration of the parties’ future needs and resources
– factors such as their age and health, their ability to support themselves,
and their other commitments. These factors are used to adjust the alloca-
tion reached on the basis of contributions alone at Step 2.
In Step 4, the results of Steps 1 to 3, and the consequences of the various
orders that might potentially be made, are checked for overall fairness in
the light of all the circumstances of the case.

Applying the four steps to out-of-court settlements


You may wish to use this process in your own analysis and negotiation –
the method is designed to result in a fair distribution of assets, and it helps
you to keep in view the likely result in court if negotiations fail.
On the other hand, there are no particular rules to private negotiation
other than the ones you agree with the other party. If you agree to discard
a principle observed in the four-step process (for example, excluding
superannuation from the asset list) – well and good. Just remember that
the principle will come back into play if you can’t agree, and you end up in
court.
The four steps are discussed in detail on pages 321–342.

Two approaches to the distribution of marital assets


Meaningful negotiation can take place only after both parties have dis-
closed all relevant information in their possession, and jointly identified a
global pool of marital assets and liabilities. From this point, many people try
to allocate the assets, or a portion of each, one at a time. This is called the
asset-by-asset approach. The other method is the global approach, under
which the parties agree on the central pool of assets and liabilities, calculate
its value, then negotiate and finally distribute on the basis of percentages of
the total. The two methods are discussed below.
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320 The Family Law Handbook

The asset-by-asset approach


The asset-by-asset approach may be suitable if:
• it is possible to ‘horse-trade’ on items of relatively low value and remove
them from the pool without significantly changing the percentage going
to each party
• the relationship has been short
• the property pool is small
• property interests were kept separate in the course of the relationship
• there is a significant difference in the initial contributions of each party
• an asset or cash representing a significant proportion of the property
pool was received close to or after separation, or
• the parties just want to do it this way.
But beware – though it may feel right initially to share things on a ‘you have
this, I’ll have that’ basis, many couples soon find that they cannot seem to
negotiate a fair result using this method. They lose their way in terms of the
overall value of one party or another is taking.
It may also be difficult to apply the court’s Step 2 and Step 3 assessment
principles to individual assets – a significant threat to the chance of a fair
outcome.
The global approach
Under the global approach, parties agree on the value of a pool of assets and
liabilities and then negotiate a percentage split – once at Step 2 of the
court’s process, and then again, on a different set of considerations, at Step
3. At Step 2, for example, you might, after considering contributions factors
alone, negotiate a 50–50 split. At Step 3, after considering your future needs
and resources, you might allocate an additional 10 or 15 per cent to one of
you who has responsibility for the care of three young children and a
reduced future earning capacity.
After the final percentage split is negotiated, the parties go back to
work out which assets and shares of assets will go to make up the shares.
There are usually a number of ways in which the shares can be made up.
The global approach is favoured by lawyers and courts to reduce the
complexity of negotiation, ensure fairness overall and obtain a set of com-
parable options for property division.
The importance of an agreed set of assets, liabilities and values
To negotiate meaningfully in percentages, the parties must be playing on
the same field. Before you start to negotiate shares, you need to work to
agree on the values of individual assets and liabilities and the total net value
of the global property pool.
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Property 375

Sample orders for spouse maintenance


Periodic spouse maintenance
That the Wife pay to the Husband the sum of $200 per week/fortnight/
month by way of the spouse maintenance of the Husband.
That payments of maintenance commence within 7 days of the date of
these orders and be made directly to the Husband by way of cheque/bank
deposit to [account]/cash.
Maintenance 'in kind'
By way of spouse maintenance, that the Husband meet all regular
payment obligations in respect of the mortgage, council rates, water rates,
and home and contents insurance of the matrimonial home as they fall
due, and further that the Husband pay within 7 days any arrears accrued
in respect of these payment obligations.
Lump sum maintenance
That the Wife pay to the Husband the sum of $185,000 within 21 days,
being a lump sum payment of spouse maintenance for the Husband.

The conciliation conference document


If the parties to a property application have been ordered to a conciliation
conference, they must each complete a conciliation conference document.
A sample completed form, and a sample Attachment to Part F, are on
pages 377– 382.
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376 The Family Law Handbook

Sample initial listing of assets and liabilities in a


property pool
Asset/Liability Value Held by Held by
$ husband wife
$ $
House at 16 March Place, Inglewood
(net of mortgage) 500,000 250,000 250,000
Furniture and household effects 11,600 2,600 9,000
Honda motorcycle 1,500 1,500
Ford Explorer 1999 (net of lease pay-out) 1,000 1,000
Telstra shares 1000 @ $4.75/share 4,750 4,750
Commonwealth joint account 2,500 1,250 1,250
Less balance Westpac Mastercard (10,000) (10,000)
Less balance American Express Gold Card (8,000) (8,000)
Value of total pool 503,350 246,350 257,000

Schedule of options for property division – global


analysis of the property pool
Based on the pool in the previous sample:

Proportion of pool to Husband’s total Husband to Wife to transfer


each party entitlement transfer to wife to husband
$ $ $
@ 30% to H – 70% to W 151,005 95,345
@ 40% to H – 60% to W 201,340 45,010
@ 45% to H - 55% to W 226,508 19,842
@ 50% to both parties 251,675 5,325
@ 55% to H – 45% to W 276,843 30,493
@ 60% to H – 45% to W 320,010 73,660
@ 65% to H – 35% to W 327,178 80,828
@ 70% to H – 30% to W 352,345 105,995
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Property 377

Sample conciliation conference document


Conciliation Conference Document
ATTACHMENT B OF THE CASE MANAGEMENT DIRECTIONS
Family Law Rules
Please type or print clearly and mark [X] all boxes that apply.
Filed in:
Client ID number _______________
Family Court of Australia
Family Court of Western Australia Lodged at

Filed on behalf of:


(specify full name of party) Lodged on
Husband/father
Court location _________________
Wife/mother
Other (specify)
Court date __________________
Completion of Form
Each party must:
Prepare this document
Deliver a copy to the other party no less than 7 days before the Conciliation Conference
Deliver a copy to the Court not less than 7 days before the Conciliation Conference
This document will not remain on the Court file following the Conciliation Conference and will either be returned to you or
destroyed. There should be set out a list of the current property, liabilities, superannuation and financial resources, both
as to identity and value, that are agreed, and those that are not agreed.
Only complete the relevant section. Eg husband or wife

Part A Current financial circumstances of the parties


Property
Item Ownership Husband’s value Wife’s value Other’s value
House - 12 Harp St Attica joint 400,000
1995 Holden Commodore joint 5,000
2002 Ford Explorer joint 15,000
Cash - IMF savins acct husband 17,750
Shares - Execucorp joint 6,000
Life insurance wife 5,000
Yacht husband 11,500
Furniture joint 20,000

Total $ $480,250 $
Liabilities
Item Ownership Husband’s value Wife’s value Other’s value
Mortgage - 12 Harp St joint 100.000
Visa joint 12,000
Car loan (Explorer) joint 12,000

Total $ $124,000 $
Net $ $356,250 $
1
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378 The Family Law Handbook

Superannuation
Item Ownership Husband’s value Wife’s value Other’s value

Total $ $ $
Financial Resources
Item Ownership Husband’s value Wife’s value Other’s value

Total $ $ $

Part B Contributions: Prepared on behalf of:


Set out the contribution based entitlement, expressed as a percentage of the net value of the assets of the
parties from the commencement of cohabitation to the date of final separation and the present date.

At final separation Husband 50 % Wife 50 %

Current Husband 50 % Wife 50 %

Reasons Set out in a brief but concise form having regard to s.79(4)(a), (b) and (c) the matters
relied upon to support the entitlement specified.

Financial contributions (s.79(4)(a))


The husband has made the principal financial contribution since the birth of the couple's first
child.

Non-financial contributions (s.79(4)(b))


The parties have made equivalent non-financial contributions.

Contributions to welfare of family (s.79(4)(c))


The wife has made the principal contribution as homemaker and parent since the birth of the
first child.

2
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Property 379

Part C Other factors: Prepared on behalf of:


Set out the adjustment (if any) expressed as a percentage of the net value of the assets of the parties to be
made to the contribution-based entitlement alleged, having regard to the factors in s.79(4)(d), (e), (f) and (g).

Husband less 20 % Wife plus 20 %


Reasons Set out in a brief but concise form having regard to s.79(4)(d), (e), (f) and (g) the
matters relied upon to support the entitlement specified.

Effect of any order on earning capacity (s.79(4)(d))


The parties propose consent orders confirming the status of the wife as primary carer for the
couple's three children (aged 8 and 3). The parties agree that the wife will not work until 2008,
when the youngest children commence school. At this time, she will seek part-time
employment as a graphic designer.

Matters as relevant (s.79(4)(e) s.75(2))


The two youngest children are twins. The female twin, Kayla, has a low weight-to-age ratio and
may suffer health problems in the future.

Other orders (s.79(4)(f))

Child Support (s.79(4)(g))

Part D Just and Equitable


Set out in a brief but concise form any circumstance relevant to s.79(2) “the Court shall not make an order
under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order”

Husband

Wife The wife relies upon the matters described in Part C above to justify the adjustment to the
contribution-based entitlement claimed.

3
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380 The Family Law Handbook

Part E Other Party’s Claim


Set out in brief but concise form details of other party’s claim as relevant and the husband and/or wife’s
proposal in relation to that claim.

Other party

Husband

Wife To the wife's knowledge, no third-party claim exists in respect of property owned by her or in
her possession, except the liabilities set out in Part A above. These are proposed to be dealt with
as set out at Part F below.

4
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Contents

Foreword xii
Introduction xiii
1 The family law system 1
Decisions at separation 2
Practical arrangements • Parenting arrangements • Property
settlement • Dispute resolution strategies
The big picture 2
Keeping sane • Behaviour check • Children are not property
• ‘Winning’ and ‘losing’
Finding the relevant law 5
The Family Law Act • The Federal Magistrates Court Act
• Legislation about court rules and procedure • Child support
legislation • Legislation about family violence • De facto
property legislation • Case law
Getting legal advice 9
Sources of free legal advice • Choosing a lawyer to advise
and assist
Court action 12
From court action to dispute resolution: A work in progress
• Advantages of coming to agreement without court action
• Moving to court action • Which court? • How long will it
take? • How much will it cost? • Representing yourself in court
2 Marriage, separation and divorce 26
The law of marriage 26
The obligation to support your spouse • Ownership of
property • Advantages of marriage at relationship breakdown
• Marriages made overseas • Marriage under Aboriginal
customary law • The legitimacy of children
Separation for married couples 28
‘Irretrievable breakdown of the marriage’ • Separation under
one roof • Should I stay or should I go? • Financial and
property matters • Arrangements for children • Orders for
personal protection
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vi The Family Law Handbook

Divorce 44
Eligibility for divorce • Grounds for divorce • Which court?
• Opposing an application • Advantages of joint applications
• Timing • Disputes in relation to children
Sample ‘Separation under one roof’ affidavits 50
Affidavit 1 • Affidavit 2

3 Negotiation and settlement 53


Settling – sooner or later 53
Options for settling sooner • Negotiation • Counselling
• Mediation • Arbitration • Power imbalance in private
dispute resolution
Negotiating with your partner 63
Negotiation through a lawyer • Negotiating your own
settlement
Procedures before making an application 78
Dispute resolution requirements for parenting cases
• Pre-action procedures for property cases • The two stages
of pre-action procedures • Improper use of the pre-action
procedures • Non-compliance with the pre-action
procedures
Certificates required to commence proceedings 82
To commence divorce proceedings • To commence parenting
proceedings
Dispute resolution after a case commences 85
Property cases • Parenting cases • Non-compulsory dispute
resolution
Offers to settle 86
Compulsory offers • Filing an offer in court
Forms of agreement 90
Private agreements • Binding financial agreements • Consent
orders
Documents for consent orders 105
The cover sheet • ‘First page’ of consent orders • Minutes of
Consent Orders • Form 11 Application for Consent Orders
• Sample cover sheet • Sample first page of consent orders
• Sample Minutes of Consent Orders • Sample Form 11

4 Court process 135


Choosing the court 135
Jurisdiction • Court policies • Practical considerations
• Transfer
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Contents vii

The process of litigation 139


Stages of the process • Case management in ‘child-related
proceedings’: A new pathway • Case management in the Family
Court • Case management in the Federal Magistrates Court
• The Family Court of Western Australia • Appeals
Common aspects of court operation 149
Mentions and callovers • Directions and orders • Changing
a court date • Special circumstances • Urgent hearings and
expedited trials • Court services
Filing and forms 156
Filing documents • Applications and accompanying documents
Serving documents 162
Filed documents you don’t need to serve • Methods of service
• Serving the independent children’s lawyer • Proof of service
(it may be vital) • Conduct money • Addresses for service
• If you can’t serve a document
Disclosure and discovery 166
Disclosure • Discovery
Obtaining information and documents 169
Subpoenas • Notice to Produce • Notice of Non-Party
Production of Documents • Information from employers
• Information in relation to family violence or child abuse
Contempt of court 175
Contempt inside the courtroom • Contempt outside the
courtroom • Punishment
Frivolous and vexatious litigation 176
Frivolous applications • Vexatious applications • Abuse of
process • Repeated frivolous, vexatious or abuse of process
applications
Court fees and legal costs 177
Court fees • Legal costs
5 Evidence 181
The basic task for evidence 181
Factors, facts and evidence • What is evidence? • Analysing
your case • The ‘best evidence’
The law of evidence 186
Why there is a ‘law of evidence’ • Where to find the law
of evidence
Admissibility 188
A short course on admissibility
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viii The Family Law Handbook

Claiming privilege 197


Sources of privilege • How to claim privilege
Affidavits 202
Formalities • What to include, what not to include
• Contradicting affidavit evidence
Reports 209
Family reports • Expert reports
Witnesses 212
In a parenting case • In a property matter • Desirable and
undesirable testimony • Reluctant witnesses • Evidence from
cross-examination and re-examination
Applying for an order for a family report 216
6 Parenting 219
Children’s response to parents’ relationship
breakdown 219
Helping children cope
The parenting principles 222
Parenting values in the law • The effect of the parenting
principles • The objects of the Family Law Act • Parents’ rights
The new philosophy of shared parenting 223
Parental responsibility • The presumption of equal, shared
parental responsibility
The best interests of the child 229
How the ‘best interests’ principle affects parents • The
approach of the court in determining ‘best interests’ • The
best interest factors • Primary considerations • Additional
considerations
Post-separation parenting arrangements 243
Spending time and communicating after separation • The legal
duty of each parent to encourage the child’s relationship with
the other • Concerns about sharing the parenting role • If the
child is reluctant • Timing problems • Problems at changeover
• Child and family services • The costs of spending time with a
child • Disputes about post-separation arrangements
Parenting plans 254
Formal requirements • Effect of a parenting plan • Changing or
terminating a parenting plan • Issues addressed in a parenting
plan (or parenting order)
Parenting orders 257
Who can apply for parenting orders • Who parenting orders
may be made about • Family dispute resolution requirements •
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Contents ix

Types of parenting order • Order for supervised time with a


child • Parental responsibility orders • Family violence orders
and parenting orders
Evidence in parenting cases 269
Changes to evidence in child-related proceedings in 2006
• Evidence in interim hearings • Evidence of the views of
children • Evidence of parenthood • How the court decides
parenting orders
Relocation 276
Legislation • Trends in relocation cases • Applying for orders
Travel with a child 282
Local and interstate travel • Overseas travel
Abduction of a child 284
Recovery of a child in Australia • If you don’t know where the
child is … • Recovery of a child taken overseas
Step-parents, ‘functional parents’ and
non-traditional families 288
Functional parents and parenting orders • Adoption • Same-
sex parents
Child abuse 290
Notification to child welfare authorities • Notification to the
Family Court • Consideration of child abuse by the Family
Court • Applying for interim orders • Examination of children
for evidence of abuse • When a child is the subject of a child
welfare order
Order drafting and sample orders 295
Using attachments to set out the proposed orders • Identifying
parents and children • Covering the issues • Using the sample
orders • Drafting consent orders and parenting plans • Sample
parental responsibility orders • Sample orders about where the
child will live • Sample orders for spending time and
communication • Sample orders for changeover • Sample
orders limiting parental behaviour • Sample orders requiring
parental behaviour or procedure • Sample orders for
communication and consultation • Sample orders for dispute
prevention and resolution • Sample urgent and ex parte orders
• Sample orders dealing with relocation • Sample recovery
orders • Sample location orders
Contravention of parenting orders 311
• Reasonable excuses for contravention • Categories of
contravention • Bonds • The best interests of the child • Effect
of a parenting plan on a contravention allegation • Variation of
the orders • Contravention applications
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x The Family Law Handbook

7 Property 317
Settling privately 317
The court’s four-step process 318
Applying the four steps to out-of-court settlements
Step 1: Identify and value assets and liabilities 321
Identifying assets and liabilities • Valuing assets and liabilities
Step 2: Assessing the parties’ contributions 328
Making the assessment • Financial contributions
• Non-financial contributions • Contributions as a homemaker
and parent • Negative contributions • Balancing financial and
non-financial contributions
Step 3: The section 75(2) needs and resources
factors 335
The section 75(2) factors • How the factors are assessed
Step 4: Testing for justice and equity overall 342
Pre-settlement property issues 342
Pre-action dispute resolution requirements • Disclosure
requirements • Urgent spouse maintenance orders • Exclusive
occupation orders • Injunctions preventing dealings with
property • Interim property orders
Final property distribution 347
Private property settlements • Applying for property orders
• Responding to an application for property orders • Variation
of orders • Enforcement of property (and maintenance) orders
Specialised family law property issues 355
Superannuation • Third party interests in property settlement
• Bankruptcy and property settlement
Spouse maintenance 363
Ability to pay • Applying for spouse maintenance • Varying
spouse maintenance orders • Spouse maintenance orders and
final property orders • Lump sum maintenance orders • The
effect of remarriage • Enforcement of a maintenance order
Order drafting and sample orders 369
Using the sample orders • Samples for consent orders • Samples
for use in private agreements • Injunctions • Sample real estate
orders • Sample orders: Other assets • Sample liability and
indemnity provisions • Sample catch-all provisions • Sample
orders: Injunction for exclusive occupation • Sample orders:
Injunction for personal protection • Sample orders for spouse
maintenance • The conciliation conference document • Sample
initial listing of assets and liabilities in a property pool
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Contents xi

• Schedule of options for property division – global analysis of


the property pool • Sample conciliation conference document
8 Hearings 383
Two litigation tracks 383
Hearings and trials 384
Law on the conduct of trials and hearings • Law about the
subject of the case: Substantive law
Interim hearings and other interlocutory
proceedings 387
Procedural applications • Hearings involving disputed facts
Going to court 389
Preparation and arriving at court • In the courtroom
Preparation for the final trial or hearing 392
Compliance with formal requirements • The Trial Notice
• First hearing day in child-related proceedings • Final
affidavits • Amended application and response • Gathering
documentation: Subpoenas and Notices to Produce
• Gathering witnesses • The pre-trial conference • The Joint
Case Summary • The Summary of Argument • Analysing a
child-related case • Fees • Notice of changes to the ‘trial
information’ • Notice of objections to evidence • List of
documents to be relied upon • Notice to attend for cross-
examination • More preparation strategies • Timing of the trial
• Using a support person in court
The stages of a final trial or hearing 413
Objections to the admissibility of evidence
Strategies for the trial 417
The opening address • Evidence-in-chief: Witnesses • Evidence-
in-chief: Documents • Cross-examination • Re-examination
• The case-in-reply • The closing addresses
Judgment, costs, appeals 430
Judgment • Costs • Appealing the decision

Contacts and resources 431


Cases 435
Index 437