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Family Law and You
Family Law and You
March 2019
Legal Services Commission
This booklet is for couples who are separating. This
is a simple guide to Family Law - it is not a substitute
for legal advice.
The information contained in this booklet has
been prepared with due care and is believed to
be accurate at the time of printing. However,
no responsibility will be taken for the accuracy
or reliability of such information, or for any loss
that may arise from an error or omission in the
information.
You can obtain free copies of this booklet from
many of the services listed at the back.
© Legal Services Commission SA
2Family Law and You
Family law and you page
Family dispute resolution 2
Lawyers 4
Family law courts 5
Family law terms 6
Children 7
Parenting plans 8
Parenting orders 9
Separation 13
Divorce 14
Child support 15
Property 20
De facto partners and property 23
Family violence 24
Changing a name 26
Wills 27
Services 28FAMILY LAW AND YOU by family dispute resolution, before applying
for court orders about their children. Family
The Family Law Act is the main law that deals dispute resolution can include counselling,
with divorce, disputes about children and mediation or arbitration.
property matters. All children are covered
by the Family Law Act, no matter where in The Family Law Courts will not generally
Australia they live or who their parents are. accept an application for parenting orders
The courts that can make decisions under unless a certificate from an accredited family
the Family Law Act are federal courts called dispute resolution practitioner is filed with the
Family Law Courts. These are the Federal application. The certificate is a statement that
Circuit Court and the Family Court. South the parties have not been able to resolve their
Australian courts and tribunals are involved dispute through family dispute resolution. It is
in matters not covered by the Family Law important to note that this requirement may
Act, such as some specific property disputes, not apply to cases involving family violence,
family violence, changing names and wills. child abuse or urgency. A certificate is valid for
Child protection cases brought by the 12 months only.
Department for Child Protection are dealt
with in the Youth Court. Family dispute resolution is conducted in
an informal setting and is less expensive,
This booklet explains family law basics and time consuming and confrontational than
tells you what you have to do if you need to going to court. The dispute resolution
take legal action. In many cases, you will be process is handled by an independent
faced with choices and you should get legal person who is skilled in dealing with
advice before deciding what to do. A lawyer family problems. They aim to help you
can help you understand your legal rights and the other parent to work through your
and responsibilities, and explain how the law disagreement and try to find a solution to
applies to your case. A lawyer can also help the dispute. As both parents are involved
you reach an agreement with your former in reaching a solution, this improves the
partner without having to go to court. For chances that the agreement will be long
details of where to get further information lasting.
and advice, see SERVICES on page 28.
Family dispute resolution practitioners do
not give advice so it is important to get legal
FAMILY DISPUTE advice beforehand. Family dispute resolution
RESOLUTION works best when both sides feel safe and
are able to negotiate equally. If there is a
Most separated parents can work out
history of family violence or allegations of
arrangements for their children without
child abuse, neglect or abduction, it may
going to court. All separating parents must
not be appropriate to attend family dispute
make a genuine effort to resolve problems
2resolution and you should seek legal advice. A counsellor can help you to explore concerns
Please note that the court may exempt you may have about your relationship and
you from family dispute resolution in these assist you to deal with separation issues
situations. and your children’s needs. Counsellors can
also help parents to resolve differences
The Legal Services Commission provides about parenting and negotiate contact
family dispute resolution through its Family arrangements for their children. You may see
Law Conferencing service. To use this service a counsellor separately or together with the
at least one parent must be eligible for legal other parent, whichever you prefer.
aid. To find out more see our Family Law
Conferencing pamphlet. If you reach agreement, you can record the
terms of your agreement in a parenting plan
Family counsellors also give advice and or apply to the court for consent orders.
assistance to couples who are considering
separation or who are finding it difficult to
cope with separation.
Most separated
parents can work
out arrangements
for children without
going to court.
3LAWYERS private lawyer. The Legal Services Commission
will decide if you are eligible by assessing your
The Family Law Act has an emphasis on financial situation. Your case must also have
resolving family problems without going to merit. This means that what you are asking
court. However, when separating, it is still for is reasonable and if you went to court,
wise to seek legal advice so that you know your case would have a reasonable chance of
what to expect when making decisions about success.
children, child support, or property.
Legal aid is not free. If you get legal aid,
When seeing a lawyer you should: you will have to pay a contribution towards
• find out how much it will cost you your legal costs (minimum of $70 for family
• ask about legal aid law matters). The amount you have to pay
• show your lawyer any important depends on your financial circumstances.
documents such as letters from your If you own real estate but have no cash, you
former partner or court orders may have to repay your legal aid costs when
• be sure you do not sign anything you sell your property or when your financial
or agree to anything that you do not position changes, even if this is many years
understand later.
• ask your lawyer to explain all your
options and the risks involved in any Even if you do not qualify for legal aid, you
legal action can still get free legal advice from the Legal
• keep a record of what you agreed to. Services Commission.
Your lawyer should not commit you to Representing yourself in court
anything that you have not discussed or You have the right to take your case to court
agreed to. If you are not satisfied with your by yourself. You should still get legal advice
lawyer, you can change to another lawyer, beforehand as you may be at a disadvantage
but you should not do this without a good if your former partner has a lawyer or if the
reason. Apart from having to start afresh and case is complex.
familiarise a new lawyer with your case, your
existing lawyer may decline to release your If you are not eligible for legal aid and
file until you have paid any outstanding fees. you cannot afford to pay a private lawyer,
you could seek help from a community
Legal aid legal centre or you may need to consider
representing yourself. If you are representing
Legal aid may be available for disputes about
yourself, it is important that you know
children and for family conferencing. In some
something about the relevant law and court
limited cases, legal aid may be available for
rules. Court staff can help you with questions
property disputes.
about court forms and court processes, but
You can apply for legal aid directly to the
cannot give you legal advice.
Legal Services Commission, or through a
4FAMILY LAW AND YOU
Your case, or story, must be presented to • Assist with Youth Court (care and
the court in writing, using the correct forms protection) matters
and affidavits. These must be prepared
The Legal Services Commission also provides
properly and this will require some skill
a social worker at the court to support
and knowledge. You will need to know the
people affected by family violence. The social
contents of documents from the other side
worker can help with safety planning and can
and how to challenge incorrect material.
connect clients with accommodation, financial
If your matter goes all the way to trial, you
counselling, and other social support services.
will also need to know the court rules about
examination (questioning) and cross-
examination of witnesses. The court is limited FAMILY LAW COURTS
in the assistance it can provide you if you are Both the Family Court and the Federal Circuit
representing yourself. Court are ‘Family Law Courts’ and have the
power to deal with Family Law Act matters.
Duty Lawyers and Social Support
The forms you use and the processes you must
Service
follow depend on which court you apply to.
Duty lawyers at the Family Law Courts can:
• Provide family law advice Both Family Law Courts deal with:
• Help with adjournments
• all orders relating to children including
• Help with Legal Aid applications
where a child lives, who a child spends time
• Provide referrals to private lawyers and
with and communicates with, child support
other services
or other issues that might arise regarding
Duty lawyers cannot: a child’s welfare (e.g. education, religion,
• Prepare complex court documents medical matters)
• Represent you in interim hearings, • enforcement and contravention of court
contravention applications and final orders
hearings (trials) • location and recovery orders as well as
• Provide specific legal advice or warrants for the apprehension or detention
representation in court if there is a conflict of a child
of interest (for example, if the other party • determination of parentage
or a child is represented, or has previously • applications for maintenance
been represented, by a Legal Services • property disputes between couples
Commission lawyer). In such cases the duty who have been married or in de facto
lawyer will provide general information relationships.
only.
• Provide specific legal advice
regarding property settlements (only
general information and advice)
5The views of the children
can be taken into account
depending on their
maturity and level of
understanding, as well
as the reasons for the
children’s views.
Almost all family law cases start in the Federal people are capable of filling in the forms
Circuit Court. The Federal Circuit Court deals themselves. If there is a dispute about children
with less complex family law matters, child or property, then it may be better to have a
support, and all divorce applications. lawyer help with your application to the court.
The Federal Circuit Court can transfer
complex matters to the Family Court. FAMILY LAW TERMS
The Family Court deals with the most The terms residence and contact (previously
difficult and complex cases. Consent order known as custody and access) are no longer
applications are also made in the Family used. The new terms that are used reflect
Court. A few types of cases are only heard in a greater emphasis on shared parenting
the Family Court, for example, international wherever possible.
child abduction and nullity of marriage. You
should seek legal advice before making an The term ‘lives with’ replaced residence and
application to the Family Court. custody. Similarly, the terms ‘spends time with’
and ‘communicates with’ replaced contact and
Family law cases begin with an application to access.
the court. Fees are charged for lodging most
applications but if you are facing financial A Child Representative is now called an
hardship, you may be able to apply to have Independent Children’s Lawyer, and the ‘child’s
the fee reduced or waived. For some matters, wishes’ are now expressed as the ‘child’s views’.
such as an uncomplicated divorce, most
6FAMILY LAW AND YOU
CHILDREN The way parents or other family members
react and adjust to the separation makes a
The Family Law Act refers to parents’ duties big difference to how children feel. Continued
and responsibilities and the best interests of fighting can hurt children more than the
the child. It says that children generally have separation itself. Children need the continuing
a right to know and be cared for by both care and support of both parents. They may
their parents and to spend regular time with worry less if you can agree about what is
other people significant to their care, welfare going to happen and explain why to them.
and development, such as grandparents. The However, you should be careful not to discuss
court may consider what the parents want, the dispute with the other parent or involve
but is most concerned about the children the children in adult matters.
themselves and ensuring that the best
interests of the children are met. What you need to consider
The views of the children can be taken
When making arrangements for children, you
into account depending on their maturity
will need to consider:
and level of understanding, as well as the
reasons for the children’s views. In certain • whether it is reasonably practical and in the
circumstances, the court can order the best interests of the children to spend equal
appointment of an Independent Children’s time or substantial and significant time with
Lawyer to represent the interests of the each parent (substantial and significant
children and help the court determine what time includes times other than weekends,
is best for them. No one under the age of 18 school holidays and other days)
is allowed inside the court room, including • how their time will be spent with other
babies. significant people in their lives, such as
grandparents and other relatives
What happens to children after • who will look after them after school
separation? • where they will spend holidays
Like adults, children react in different • any other things such as choice of school,
ways to separation or divorce. How they sport, health care, or religious matters, and
react often depends on the child’s age,
• the children’s cultural background, and how
temperament and the level of cooperation
they will continue to be involved in that
or conflict between the parents. For children
culture.
up to 5 years old, family breakdown can be
difficult to understand. Older children can
Every family is different, so the arrangements
also experience a time of confusion and
that work for your family may be different
uncertainty even though they are more able
from other families. Try to make arrangements
to understand what is happening.
that will work the best for your children.
7PARENTING PLANS However, you should seek legal advice before
doing so.
A parenting plan is a written agreement
signed and dated by both parties, that sets Is a parenting plan legally binding?
out parenting arrangements for children. All
A parenting plan is not a legally enforceable
separated parents could consider preparing
agreement. It is only a record of what has
a parenting plan. Like a court order, any
been agreed to and is different to a parenting
decision made in developing a parenting
order made by a court. However, a parenting
plan should be made in the best interests
order made by the court may take into
of the children. The plan can cover where
account a parenting plan that you have
your children will live, who they will spend
previously agreed to. If you want to make your
time with, their schooling and other specific
parenting plan legally enforceable, you must
issues such as holidays, medical and religious
apply to the Family Court for consent orders.
matters. The advantage of a parenting plan
This requires the consent of all parties to the
is that it can help you and the other parent
parenting plan. Only an agreement for the
to be clear about any agreed arrangements
long term care of children can be made into a
for your children. You can get help to reach
consent order.
agreement about a parenting plan from a
family dispute resolution practitioner, see
Consent orders
SERVICES page 28. Anything discussed at
A consent order is a written agreement for
family dispute resolution is confidential and
long term dispute resolution that is approved
cannot be disclosed to a court. However, the
by a court. It has the same legal force as
parenting plan itself is not confidential.
any court order. A consent order can cover
Can a parenting plan be changed? parenting arrangements for children as well as
financial arrangements such as child support,
A parenting plan should be flexible enough
property and maintenance (between parents
to cover the changing needs of children
who have separated).
and parents, and include a way of resolving
disputes that may arise. A parenting plan can If the Family Court approves the consent
be changed at any time to suit your needs, if orders they will have the same legal effect as
both parents agree. If you want to change a any other order made by the court. The court
parenting plan and the other parent does not must be satisfied that the orders are fair and in
agree, you may wish to attend family dispute the best interests of the child. Consent order
resolution to resolve the matter. templates can be obtained from the Family
Court or online at www.familycourt.gov.au.
If you have attempted family dispute
Both sides should seek independent legal
resolution and still cannot reach agreement,
advice before they sign their consent order.
you can make an application for court orders.
8FAMILY LAW AND YOU
PARENTING ORDERS In deciding what is in the best interests of a
child, the primary considerations of the Family
All court orders about children are called Law Courts are:
‘parenting orders’. Any person concerned
• the benefit to children of meaningful
with the care, welfare or development
relationships with both parents, and
of a child can apply for parenting orders.
Parenting orders can specify people other • the need to protect children from physical
than parents who are to spend time with or psychological harm and from being
and communicate with the child, including subjected or exposed to abuse, neglect or
grandparents and other relatives. While a family violence.
court can order that a parent be allowed to
In applying these two considerations, the
spend time with a child, it cannot make a
court must give greater weight to the need
parent do so.
to protect the children from physical or
The court can put special conditions in an psychological harm and from being subjected
order. For example, it can say where the or exposed to abuse, neglect or family
handover of the children must take place or violence. In addition, it will also consider such
it can make the time spent supervised if it things as:
thinks it is necessary. • the views of the child, depending on the
Other orders can be made giving one parent maturity and level of understanding of the
responsibility for aspects of the care, welfare child
and development of the child, such as • the child’s relationship with each parent
schooling and medical treatment. and other people, including grandparents
and other relatives
How does the court decide?
• the willingness and ability of each parent
When a court is making a parenting order, the
to facilitate and encourage a close and
Family Law Act requires it to regard the best
continuing relationship between the child
interests of the child as the most important
and the other parent
consideration. The Family Law Act says that:
• the likely effect on the child of changed
• both parents are responsible for the care
circumstances, including separation from
and welfare of their children until the
a parent or person with whom the child
children reach 18, and
has been living, including a grandparent or
• arrangements which involve shared other relatives
responsibilities and cooperation between
the parents are in the best interests of the
child.
9• the practical difficulty and expense appointed. This lawyer investigates what
of a child spending time with and is in the child’s best interests and provides
communicating with a parent information to the court.
• each parent’s ability (and that of any other Unless a court says that it is not in the child’s
person) to provide for the child’s needs best interests, both parents have equal
shared parental responsibility. This means
• the maturity, sex, lifestyle and background
parents must consult each other and reach
of the child and of the child’s parents, and
agreement about major issues such as
any other characteristics of the child that
schooling, health and religion. Equal shared
the court thinks are relevant
parental responsibility is not the same as a
• the right of an Aboriginal or Torres Strait child spending equal time with both parents.
Islander child to enjoy his or her culture However, where a court order provides for
and the impact a proposed parenting equal shared parental responsibility then
order may have on that right the court must consider whether the child
should spend equal time with both parents.
• the attitude of each parent to the child and
This depends on whether the court considers
to the responsibilities of parenthood
that it is in the child’s best interests and
• any family violence involving the child or a whether such an arrangement is reasonably
member of the child’s family practicable.
• any family violence order that applies If equal time is not appropriate in the
to the child or a member of the particular circumstances, the court must then
child’s family consider whether ‘substantial and significant
time’ is in the child’s best interests. This
• whether it would be preferable to make
usually means that the time the child spends
the order that would be least likely to lead
with a parent includes weekdays, weekends
to further court applications and hearings
and holidays so that they are able to spend
in relation to the child, and
time together doing routine daily activities
• any other fact or circumstance that the in addition to sporting events, holidays and
court thinks is relevant. special occasions.
The court will not hear from the child directly, In making a parenting order, the behaviour
instead it will get information from other of the parents before and after separation
witnesses about the child’s views. To help it may be relevant. Because the court deals with
decide what should be done, the court can every matter individually, no one can tell you
ask a family consultant to prepare a family exactly what the court will decide in your
report. Sometimes, the court will order case. For this reason it is not much help to
that an Independent Children’s Lawyer be compare your case with others you may have
heard about.
10FAMILY LAW AND YOU
Applying for parenting orders See www.federalcircuitcourt.gov.au for more
To apply to the court for parenting orders, information about court procedures.
you need to complete an application form
and a supporting affidavit and a Notice
What orders can you apply for?
of Risk. You will also need a certificate A parenting order may deal with one or more
confirming that you have not been able to of the following:
resolve your dispute through family dispute • the allocation of parental responsibility for
resolution, unless an exemption applies. a child and, if two or more people are to
The affidavit is your statement of what has share parental responsibility for a child, how
happened and why you want the court to they are to consult with one another about
make the orders that you are asking for in decisions concerning the child
your application. The court can provide you
with a fact sheet about affidavits. After you • the person or people with whom a child is
have completed the application and affidavit, to live
you need to get it witnessed by a lawyer • the time a child is to spend with another
or Justice of the Peace (JP). There is usually person or other persons
a JP available at the court. There are strict
rules about how you serve (officially deliver) • how the child will communicate with other
documents. See the Federal Circuit Court persons
website for details. • child maintenance (for those children not
covered by the Child Support Scheme)
What happens when you apply for a
parenting order? • the steps to be taken before an application
may be made to a court for a change to the
Initially, the court will make interim
order
(temporary) orders that will apply until final
orders are made. After interim orders have • the process to be used for resolving
been made, the court will then put the case disputes about the terms or operation of
in the court list to prepare for trial and to the order, and
determine if the case can settle.
• any aspect of the care, welfare or
If the matter is not capable of settlement, development of the child or any other
the court will list the case for a final hearing aspect of parental responsibility for a child.
(called a trial) before a Judge who will decide
what is best for your children. It can take a
long time to proceed from interim orders to
the commencement of a trial. If your case is
urgent and there are special circumstances,
the court may agree to put your case before
others on the waiting list.
11Relocation of children Note that the court will consider whether
Even if there is no court order in place, a the excuse for a contravention is reasonable
parent should get legal advice before moving according to the Family Law Act.
with a child to another region or State
Depending on the particulars of the case and the
without the agreement of the other parent. If
type of contravention, a court has the power to:
a court considers it is in the best interests of
the child to remain where they are, the court • vary the existing orders
has the power to order that a child not be • order attendance at a post separation
removed. If a parent has already removed the parenting program
child, the court can order that the child be
returned. • compensate for time lost with a child as a
result of the contravention
Complying with orders about children • require the person to enter into a bond
Court orders are not optional. You must take
• order the person to pay all or some of the legal
all reasonable steps to follow an order. For
costs of the other parties
example, if there is a court order that your
child spends time with the other parent, you • order that the person pay compensation for
must do everything you can to encourage reasonable expenses lost as a result of the
the child to spend time with the other parent. contravention
If you or another party is not following an
• require the person to participate in
order, you should get legal advice about your
community service
options.
• order that a fine be paid
A court can only penalise someone for
• order imprisonment.
breaching a parenting order if you or
the other party makes a contravention
application alleging the other party is not
complying with the order. If the parenting
order is more than 12 months old, then the
person alleging the contravention must
first attempt to resolve the matter through
family dispute resolution (unless exempt
for other reasons). If a court finds a person
has breached a parenting order without
reasonable excuse, it may impose a penalty.
12FAMILY LAW AND YOU
Family Consultants The court is generally reluctant to interrupt
A court may at any time order the parents the children’s usual living arrangements. If
and children to see a family consultant (a a long time passes without you seeing the
court counsellor). Family consultants are children this may affect any application you
psychologists or social workers who specialise later make about who the children should live
in child and family issues after separation. with or spend time with. If you find yourself in
Communications with a family consultant are this situation, seek legal advice urgently.
not confidential and may be reported back to
the court. Period of separation
Family consultants can: For a divorce, you must be separated for at
least 12 months. However, it is possible to
• help you resolve your dispute
separate, have one attempt at reconciliation
• tell the court about the issues in dispute which lasts less than three months, separate
• write a memo to the court about their again, and still apply for divorce if the total
meeting with you, and period of separation adds up to twelve
months.
• make recommendations to the court about
the next step in the proceedings.
Separation under one roof
For a divorce, a couple can be separated
SEPARATION
while living in the same house, but it must
A couple is considered to be separated when be shown that the marriage relationship has
they are leading separate lives. There are irretrievably broken down. You are not usually
no formal procedures to show that you are considered to have separated if you share the
separated, no forms to fill in and nobody usual activities of marriage such as sleeping
that you have to notify. If you are claiming together, shopping and eating meals together,
Centrelink payments you will need to notify entertaining friends, going out together with
Centrelink of your separation within 14 days, your children, or sharing bank accounts.
because this may affect your payments.
Spouses intending to live separately under
Regardless of whose name is on the title one roof should make sure that others know
to the family home, both members of the about it from the beginning of the separation,
couple are entitled to live there. If there is as the court normally requires evidence from
a dispute, you cannot force your partner to a friend or relative that there was a separation.
leave without a court order. If the situation There must also be good reasons why you
is unpleasant you may prefer to leave the remained together in the same house, such
home, but keep in mind the importance of as caring for children or not having enough
maintaining a relationship with your children. money to live separately.
13The only ground for divorce
is the irretrievable breakdown
of the marriage. It does not
matter who was at fault or
whether one spouse does
not want a divorce. You must
show the court that you have
not been living as a married
couple for at least twelve
months and that you will not
get back together.
DIVORCE are usually filed electronically in the Federal
Circuit Court. For more information, visit
Divorce is the legal end of a marriage. The www.federalcircuitcourt.gov.au. The Federal
only ground for divorce is the irretrievable Circuit Court also has a YouTube channel
breakdown of the marriage. It does not where you can watch videos about how to file
matter who was at fault or whether one online applications, and how to serve your
spouse does not want a divorce. You must divorce application on your spouse. If you are
show the court that you have not been not able to file your application online, you
living as a married couple for at least twelve can contact the National Enquiry Centre and
months and that you will not get back ask for the application forms to be sent to you.
together. The only way to stop a divorce is You can do this by using the live chat function
to show that this has not occurred. A divorce on the website, by email to enquiries@
does not deal with issues such as who the familylawcourts.gov.au or by calling
children live with, child support or the 1300 352 000.
division of property.
The cost of filing a divorce application is
People married less than two years cannot currently $900. You may be eligible for a
apply for divorce unless they first get a fee reduction, particularly if you receive a
certificate from a counsellor, stating they Centrelink benefit or hold a concession card.
have attended marriage counselling and that The reduced fee is $300. You can also apply
reconciliation is unlikely, or they have other for the fee to be reduced to $300 if you are
special reasons to obtain a divorce. in financial hardship, however you will not
be able to electronically file your application
Applying for a divorce and you should contact the National Enquiry
You do not need a lawyer to apply for a Centre so that the appropriate forms can be
divorce. Either you or your spouse, or both of sent to you.
you together, can apply. Divorce applications
14FAMILY LAW AND YOU
The Legal Services Commission can offer The divorce order becomes final one month
advice about divorce. If there is a difficulty after the court makes the order. From that
writing English or some other complication time you are free to remarry. The court sends
you may be able to get legal aid for a lawyer out divorce order certificates after the divorce
to make the divorce application. If you do becomes final.
not know the whereabouts of your former
spouse it is still possible to get a divorce but CHILD SUPPORT
the application is more complicated and legal
advice should be sought. The law says that both parents have a duty to
provide financial support for their children.
The divorce papers include questions about How much should be paid depends on the
the care of any children under 18 (note: this financial circumstances of each parent, the
can include any child who was living with level of care each parent provides for the
both of you at the time of separation). The children, the ages of the children and whether
forms ask about where the children live, their either parent supports other children (not
time and communication with each of you, including step-children).
the financial support provided by each of you,
their health and their education. Although the Non-parent carers of children (such as
court has to approve the arrangements about grandparents, or other carers) can also apply
the children in order to grant a divorce, they to receive child support from the parents of
do not become orders of the court and are not the children.
binding on you. The Department of Human Services–Child
The person applying for the divorce (or Support (formerly known as the Child
his or her lawyer) must normally appear at Support Agency) can be asked to collect and
the court hearing if there are children under transfer periodic payments of child support,
18 years. Your spouse does not have to attend or the payments can be made by private
unless he or she wants to argue against a arrangement between the parties.
divorce. If there are no children under 18 years
of age you can state on the form that you do Parentage
not want to attend court. However you must Because child support can only be claimed
attend if your spouse wants to oppose the from a person who is a parent of a child,
divorce. disputes can arise about parentage. If
necessary, DNA parentage testing can be used
You can take a friend or relative with you
to resolve these disputes. For legal advice
but children are not allowed inside the court
about parentage issues, call the Child Support
room. Family Law Courts have a limited child
Help Line on 8111 5576.
minding service for parents attending court,
which must be booked in advance.
15Child Support Assessment Level of care
Most child support assessments are The amount of care that is provided for a child
calculated by the Department of Human is an important part of the formula calculations.
Services – Child Support according to a If a person provides care for a child for at least
mathematical formula. To create a formula 14% of the time they are considered to be
assessment, the Department needs accurate meeting some of the costs of the child through
information about the parents’ taxable the care they provide. The amount of care is
incomes, the amount of care each parent converted to a percentage of the costs and is
provides for the children, and whether either used in the formula calculations as indicated in
parent supports other children. Alternatively, the table below.
the assessment can be based on a formal Nights per year and percentage of costs met
written Child Support Agreement which has through care:
been worked out between the parents. 0-51 Less than Regular Care = 0%
Nights per year
52-127 Regular Care = 24%
Child Support Formula 128-237 Shared Care = 25-75%
238-313 Primary Care = 76%
The child support formula takes into account
314-365 Greater than Primary Care = 100%
the:
• parents’ incomes (based on taxable The Department (Tel:131 272) should be
incomes) informed of any changes in care arrangements
• costs of children (based on the as soon as possible. Disputes can arise about the
combined income of the parents) level of care used in the assessment.
• level of care provided by each parent. How to change a Child Support Formula
Parents’ incomes are important because,
Assessment
when added together, they are used to work There are a variety of ways to change a formula
out the theoretical costs of raising children, assessment, two of which are described below.
in a family with that level of income. A Estimate of Income
‘Costs of Children’ table has been created
If a parent’s income is at least 15% lower than
using Australian research, which also adjusts
the income used in the assessment calculation,
the costs for the number and ages of the
a parent can provide an up-to-date estimate
children.
of his or her income to the Department.
The costs of the children are shared between An Estimate of Income only affects future
the parents: payments; it cannot operate retrospectively.
However, conditions apply and penalties can be
a) in proportion to their individual incomes,
added if a person significantly underestimates
and
their income. Caution should be exercised in
b) after taking into account the amount of
using this remedy.
care each parent provides for the children.
16FAMILY LAW AND YOU
Changing your Assessment in Special The law provides for two types of child
Circumstances support agreements -
Either parent can apply to change the
Limited Child Support Agreements
assessment if they believe that special
circumstances exist to justify a change. These agreements must be in writing, signed
An application to change an assessment by both parties, and provide for at least as
must be based on particular grounds. The much child support as would be payable
most common reasons for changing an under a child support formula assessment.
assessment relate to the incomes of the Limited Agreements can be terminated by
parents, private school fees, child care costs either party after 3 years (or sooner if certain
and costs associated with special needs of circumstances are met). They can also be
children. Changes can be made to past or terminated by agreement or set aside by court
future assessments, but retrospective changes order.
are limited to the 18 months prior to the Binding Child Support Agreements
application being made. A court application
These agreements can be for less than, or
can be made if changes are required to an
more than, the amount payable under a child
assessment which is more than 18 months, but
support formula assessment. Binding Child
less than 7 years, in the past. For legal advice
Support Agreements can also include lump
about changing a child support assessment,
sum payments, but special requirements
contact the Child Support Help Line on
apply. Each parent must obtain independent
8111 5576.
legal advice and the agreement must include
certificates from the lawyers stating that
Child Support Agreements
advice has been given about the effect of the
As an alternative to the child support formula, agreement on the rights of the individuals,
some parents are able to reach a private and the advantages and disadvantages of
agreement about child support payments. entering the agreement.
Child support agreements can include periodic
payments, non-cash payments or lump sum In order to provide this advice, a lawyer would
payments, although only periodic payments need to obtain information about the financial
can be collected by DHS – Child Support. position of both parents, and have a sound
The use of coercion or threats to secure an knowledge of child support law.
agreement can invalidate the agreement. Be Parties should also be aware that if a Binding
sure to get legal advice before signing a child Child Support Agreement provides for less
support agreement. child support than the amount payable
under a formula assessment, the amount of
Family Tax Benefit (A) will be calculated with
reference to the child support amount that
would have been payable under the formula
assessment (not the amount provided for
17in the agreement). Binding Child Support action can also be taken by the Department
Agreements can only be ended by a further or the payee to recover a child support debt.
Binding Child Support Agreement or, in Late payment penalties can be charged if the
exceptional circumstances, by a court order. child support debt is more than $1000.
Parents are able to make their own private
Adult Children (over 18 years). arrangements for the payment of child
A child support assessment can be extended support. However, private collection is only
to the end of the school year if the child recommended in cases where the assessment
is attending secondary school when s/he is based on reliable incomes, and the payer is
turns 18. This request must be made to DHS likely to pay or has a good payment history.
– Child Support before the child turns 18. In cases with private collection arrangements,
Failure to extend the assessment can result Centrelink will assume that the full child
in a reduction in the payment of Family Tax support amount is being paid/received when
Benefit (A) for the child. calculating Family Tax Benefit (A) entitlements.
Adult Child Maintenance (over 18 Non-Agency Payments
years)
If the payment is collected by DHS–Child
When the child support assessment ends, a Support, a paying parent can seek credit
court can order that maintenance continue to for cash or non-cash payments made to the
be paid for adult children if they are unable to payee or a third party, or other payments that
fully support themselves because they are: were made in lieu of child support payments.
i) completing their education, or Many payments can only be credited if the
ii) they have a disability. receiving parent agrees that the payment
Legal advice about Adult Child was intended to be treated as a child support
Maintenance can be obtained from the Child payment.
Support Help Line on 8111 5576.
If the payee does not agree, there are still
Collection and enforcement some payments that can still be credited as
DHS–Child Support can collect periodic child support. These include some education
payments of child support or maintenance expenses, essential medical and dental
payable under a child support assessment treatment, and payments for the payee’s
or a child support agreement. Court orders accommodation or vehicle expenses. They are
for adult child maintenance or spousal called Prescribed Non- Agency Payments and
maintenance can also be registered for can only be credited if the case is collected
collection by DHS–Child Support . The by DHS – Child Support and the paying
Department has broad powers to collect parent has less than regular care (14%) of the
child support debts including collecting child(ren).
from wages, intercepting tax refunds and
collecting money from bank accounts. Court
18The Child Support Help Line FAMILY LAW AND YOU
can give free legal advice
about all child support and
maintenance problems
8111 5576
Centrelink Failure to take action to obtain or maintain a
To be entitled to claim Family Tax Benefit (A) child support assessment may result in the
for a child, a person must be caring for the FTB(A) being reduced to the base rate.
child for at least 35% of the time. A parent Entitlement to Family Tax Benefit (A) is
who is eligible to receive more than the base calculated for each child and is influenced
rate of Family Tax Benefit (A) is required to by household income and child support
obtain child support payments from the payments, as well as the amount of care
other parent. This is called the Maintenance provided for the child. You can talk to
Action Test. A parent is required to take this Centrelink about how your Family Tax Benefit
action within 13 weeks of separation, or from (A) is calculated and paid.
the date of birth of the child. A Centrelink
social worker can grant an exemption from
Overseas Child Support
the need to take action to obtain child Australia has reciprocal arrangements with
support in family violence cases. many countries for the collection of child
support overseas. Arrangements with each
If a parent will still be receiving Family Tax
particular country differ, and some countries
Benefit (A) for the child when s/he turns 18,
have better collection arrangements than
and the child is still attending secondary
others. Disputes about parentage can be more
school, the parent is required to ask DHS-
difficult to resolve where one of the parents
Child Support to extend the child support
resides overseas.
assessment until the end of the school year.
19This is a complex area of law and legal advice An application for property division or
should be obtained in each individual case. settlement to a family law court may be made
any time from separation but no later than 12
The Legal Services Commission offers free
months after the divorce becomes final. For
legal advice in relation to all child support
de facto couples, it is 2 years after the date
and maintenance issues through the Child
of separation. A late application can only be
Support Help Line 8111 5576.
made with special permission of the court.
PROPERTY The family home
Upon separation, you should notify your Under the Family Law Act a partner may
bank that you have separated and take be entitled to share in the family home or
steps to protect yourself in case your former other assets even if they did not pay any
partner incurs extra debts that you will money towards them and they are in the
be responsible for. For example, you may other partner’s name. The court will take into
wish to close joint credit card accounts and account indirect financial contributions (such
cancel any loan redraw facility that the other as paying bills), contributions as a homemaker
party can access. You should review your and parent, and each partner’s future needs.
will and superannuation or life insurance
If there is enough other property, the court
policies if your former partner is named as a
may grant one partner the family home,
beneficiary.
especially if that partner is looking after the
If you and your former partner cannot agree children. However, if there is no other way of
on how to divide your property, then either giving each partner their fair share, such as
of you can ask the court to make a property one partner buying the other out, the house
order. Get legal advice about which court to must be sold. The transfer of real estate and
file your application as this depends on the motor vehicles between former partners
complexity of your case and the value of the following their separation should be exempt
asset pool. from stamp duty. You should seek legal advice
about the documents required for a stamp
Property can include anything of financial
duty exemption.
value, including a house, land, money,
superannuation, shares, cars, furniture, and If your name is not on the title of the family
small household items. Generally, it is not home it is important that you see a lawyer
worth going to court over items which have quickly in order to protect your fair share
only a small value. in case your former partner tries to sell or
otherwise dispose of the home. A caveat (a
notice of claim) can be placed on the title by
anyone who has an interest in that real estate.
20FAMILY LAW AND YOU
If you leave the family home it does not mean However, you should at least seek legal advice
that you lose your entitlement to a fair share before signing an agreement to check that the
of the property. However, you should bear in agreement is legal and fair. Be certain that you
mind that court proceedings are an expensive understand your property rights and get legal
and time consuming way to recover advice (from a different lawyer than the one
property. It is important that you obtain, if representing your former partner) before you
possible, financial records such as tax returns, sign any final documents.
superannuation statements and bank records,
If you reach an agreement with your former
to help with the division of assets. You can
partner about dividing the property, you
leave the family home and take your fair
should record the agreement in a consent
share of the household goods if it is likely to
order approved by the court or in a binding
be difficult to obtain them later.
financial agreement. This can help to prevent
any future claims about property.
Superannuation
Superannuation is treated as property for Binding financial agreements
the purposes of property settlement. You will
You and your partner can make an agreement
need to gather accurate information about
at any time on how your property and
the value of your superannuation fund(s) and
financial resources will be divided if you
those of your former partner. To do this you
separate. These agreements are evidence
will need to complete the Superannuation
of your intention at the time you signed the
Information Form and Declaration, available
agreement, but they may not be relevant
from the court. Superannuation funds usually
many years later and the court may not agree
charge fees to provide the information.
with what they say. One of these agreements
Any agreement, or court order, about can also be made after you have separated.
superannuation can split the superannuation Before entering into such an agreement, you
into separate policies or it can ‘flag’ part of the should obtain independent legal advice about
superannuation payment to go to another the content and effect of the agreement.
person when the policy becomes payable.
To be enforceable, agreements must be in
Superannuation can be a major asset in the
writing and signed by both partners, and each
division of property and the law in this area is
partner must have had independent legal
complex. Be sure to seek legal advice.
advice and each partner’s lawyer must have
signed the agreement to say this.
Reaching agreement
Wherever possible, people should attempt
to reach an agreement about property
settlement after separation. This saves the
expense, delay and worry of a court case.
21A court may set aside or vary an agreement Direct contributions include:
or order in some limited circumstances, for • money contributed during the relationship,
example if there has not been full disclosure, such as wages or income
or there has been fraud, duress, or other • property owned at the time the relationship
unfair conduct. An agreement or order began
may also be set aside if there has been a • gifts and inheritances
significant change in circumstances relating • work done on the property such as building
to a child of the relationship such that or renovating
hardship would be caused if it were not set • effort put into building up and running a
aside. business.
The efforts of a partner who worked in the
How the court decides
home looking after the children and doing
The court has very wide powers to divide the housekeeping are considered indirect
the property in whatever way it thinks is fair. contributions to the property. A homemaker
No two cases are the same and each partner can be entitled to a share of the property
should get independent legal advice on their even though they have not paid any money
case from a lawyer who specialises in family towards it or earned any income during
law property cases. In determining property the relationship. In many cases, the indirect
disputes, the court first identifies the net contributions of the homemaker are equal
value of the combined assets. Then the court to the direct contributions of the income
considers the contributions each person has earner. This may not be the case where
made to the property and their future needs. the relationship was short or the direct
Finally, the court’s decision must be just and contributions of one partner are much larger
equitable. There is no rule that property than the contributions of the other partner.
should be equally divided according to a
50/50 formula. A partner will not necessarily Future needs
get half of everything, or be able to keep The court can also decide whether a greater
those things in their name that they paid for. share of the property should be given to
It all depends on each partner’s contribution, the partner who has the greater need in the
their needs and what is just and equitable. future. It will look at matters such as:
Contributions • the age and health of both partners
• the ability of each partner to support
The court looks at the history of the
themselves in the future
relationship and determines how much
• whether either partner is supporting a
each partner has contributed to buying,
dependent, such as a child
maintaining and improving the property.
• whether a partner is being supported by
someone else, such as a new partner or
parents.
22FAMILY LAW AND YOU
If one parent has the sole responsibility DE FACTO PARTNERS AND
for the day to day care of the children, a
claim may be made for a greater share of
PROPERTY
the property, but this may be balanced by Two people may be in a de facto relationship
the payment of child support by the other if they are not married or related by family
parent. As a guide, the court is likely to award and they live together as a couple on a
more to one partner where the other has genuine domestic basis. De facto partners in
access to greater financial resources. This is a South Australia who have separated after 1
complex area of law and legal advice should July 2010, can enter into a binding financial
be sought. agreement and make an application for
property settlement or maintenance under
Maintenance the Family Law Act.
To obtain a court order for maintenance
However, an application to a Family Law Court
under the Family Law Act, the applicant
for property settlement or maintenance can
will generally have to prove that they are
only be made if:
unable to work or cannot support themself
properly because of old age or sickness, • the de facto relationship existed for at least
the need to care for children or some other two years, or
reason. In addition, they would have to • there is a child of the partners, or
show that their former partner is able to pay
• the relationship has been registered in a
the maintenance. Maintenance claims can
State or Territory of Australia under laws for
be resolved formally at the same time as
the registration of relationships, or
property settlement, either by court order or
financial agreement. A payment can be made • one of the partners has made substantial
in a lump sum, or by periodic payments. An financial or non-financial contributions
order for periodic payments of maintenance to property as homemaker or parent and
can be registered for collection with the serious injustice would result if an order was
Department of Human Services–Child not made
Support.
An application for property settlement must
Time limits apply to maintenance claims and be made within two years of the relationship
legal advice should be sought at the earliest ending, but in exceptional circumstances the
opportunity. court may grant leave to make an application
outside of this time period. The court will
decide how the property should be divided
and whether maintenance should be paid in
the same way it does for married couples.
23Certified Domestic Partnership FAMILY VIOLENCE
Agreements
Family violence may include physical violence,
If a de facto couple made a certified domestic damaging property, threats, emotional and
partnership agreement under South Australian psychological abuse, financial control and
law that was in force before 1 July 2010, that social isolation. You can take action to stop it.
agreement may be taken to be a binding
financial agreement under the Family Law Act. Reporting violence
However, the only parts of the agreement that
If there has been family violence, call the
could be enforced by a family law court are
police on 131 444. The police have the power
those to do with the property and financial
to:
resources of the parties, and maintenance.
• arrest the offender
For relationships not covered by the Family • search for and remove weapons
Law Act or other South Australian legislation, • charge the offender with a criminal offence
rights to property on the breakdown of a • immediately issue an intervention order (if
relationship are governed by the common law the offender is present or in custody) or
rules of property, trusts and contract. The law apply to the court for an intervention order
in this area is complex and legal advice should on your behalf.
be sought by anyone who wants to make a
Do not be afraid to call the police for
claim.
protection for yourself and your children.
There are special police units trained to
handle family violence. If your local police are
not helpful, ask to speak to a police officer
from the Family Violence Investigation Section
as soon as possible. You can also seek help
from a domestic violence service and the
Legal Services Commission, see SERVICES
page 28.
Applying for an intervention order
If you are the victim of family violence, ask
the police to apply for an intervention order
from the Magistrates Court. You do not have
to show you have been physically hurt before
you can get help. An intervention order can
stop a person from coming onto certain
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