Your Trusted Family Lawyer in Hornsby and the Upper North Shore

Family law is the main law relating to:

• Divorce
• Parenting
• Property
• Spousal and De-facto Maintenance
• Financial Agreements
• Child Support Agreements

The Family Law Act 1975 (“the Act”) is the cornerstone of the Australian family law system.  It applies to all Australian States and Territories.  In Western Australia, it applies to married or previously married parties only.  The Family Court Act 1997 (WA) otherwise deals with de-facto relationships.

In addition to the Act, various court rules, procedures and directions will also apply. In NSW, the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Family Law Rules”) details the main aspects of practice, procedure and evidence in a case before the Federal Circuit and Family Court of Australia. 

The end of a relationship can be difficult, not only for the individuals themselves but their children.  For parties with children, one of the most important tasks is to design a workable, co-operative, post-separation parenting arrangement that meets the needs of the children moving forward.  When determining what is in the best interests of a child, the court may take into account any views expressed by the child and any factors (such as the child’s maturity and level of understanding) when determining what weight, if any, to give to such views (see section 60CC of the Act).  There are many causes for why a child may refuse to spend time with a parent.  If a court makes a parenting order in relation to a child, they may also require the child to engage with counselling or for the parties to participate in family therapy to address these issues.  In some cases, the court may make an order requiring the parenting order to be supervised by a family consultant or for a party to participate in a post-separation parenting program – especially where the underlying cause of the child’s refusal stems from the poor behaviour of the parent(s). 

The rights of the child are paramount.  Where one parent withholds a child from communicating and spending time with the other parent, they can only do so where it is for the protection of the child – and only for so long as is reasonably necessary. Under the Act, the child has a right to a relationship with both parents.  A parent that fails to facilitate this relationship without just cause may risk a change in the parenting arrangement such that orders are made for the child to live with the other parent and spend time with (or no time at all) with the parent who is unable/unwilling to uphold the rights of the child to a relationship.  It is important to remember that children are not property and should never be used as a way to hurt, punish or control the other parent. It is critical that you ensure that your language and behaviour towards your children and former partner remain respectful and proper at all times.  

The stress of a relationship breakdown and conflict of parenting and property matters can cause some people to lose control.  Despite reforms to the system, it is not perfect.  This can and does often result in parties behaving extremely poorly towards one another or engaging in irresponsible behaviour and substance abuse.  It is often difficult for parents to see their child’s interests as separate and different from their own, especially where the pain of separation is still raw. If a dispute reaches Court, the Court will determine what is in the bests interests of the child and in doing so, it is has the power to retrospectively assess the behaviour of the parents in coming to that decision and to determine whether that behaviour is in keeping with the objects under section 60B of the Act.  If a parent’s behaviour is deemed not to be child focus, the Court can make a range of orders including no contact orders.

No. Under the law, one parent does not have more rights than the other.  In fact, neither parent has any legal right to a relationship with their child, rather it is the child who has the legal right to a meaningful relationship with both of their parents.  Thus, it is incorrect to believe that simply because you are the parent of a child, you have a right to spend time with them.  The Act has been deliberately drafted this way over the years to change parent’s attitude about what they might consider are their “rights” to their children, encouraging instead the position that it is the children who have rights such as the right to be safe and to be able to be with, and be cared for by both of their parents.  Nothing in the Family Law Act shows a preference for any particular outcome in parenting cases.  In the recent amendments to the Act, the addition of “if it is safe to do so”, should be understood that in some cases, a parent can be a source of risk rather safety and the courts will prioritise safety over the needs/wants/expectations of any parent or caregiver.

You do not have the right to dictate who may be around the children when they are with the other parent – this goes both ways. The exception to this is where there exists a genuine safety concern.  In such cases, you should apply to the Court for an order that prohibits the children being in the presence of that person.  It is important to be realistic about the idea that your ex may at some point re-partner, if they have not already done so – life goes on after-all.  It is not healthy, or productive, to spend literally years of your life in dispute over parenting and property – to do so will come at a cost to your health, finances and the good opinion of your children.  Should you hold serious concerns about the welfare of your child in the company of another adult, you have a responsibility to ensure that your child is safe – this may include withholding the child from spending time with the other parent until such issues are addressed.  That said, if such grounds are found to be false or unjustified and you find yourself in court, you should expect the other party to use your behaviour as evidence against you in their affidavit.   

In parenting cases, the most common question for the court relates to which parent (or other person) a child is to live with and what time that child should spend with the other parent or people significant to the child.  These types of orders, called ‘live with’ and ‘spend time with’ orders consider things such as the specific needs of the child, practicalities such as how far the parties live from one another and distance from school, the age of the child, the types of activities the child is involved in and the commitments of the caregiver such as work and other care responsibilities. 

There is no legal definition of these terms in the Act and as such, the ordinary meaning should be given.  Unsurprisingly, there is a wealth of case law on their application and the Court can make any orders that it believes meet the two objects of the Act which are:

• To ensure that the best interests of children are met, including by ensuring their safety; and
• To give effect to the Convention on the Rights of the Child. 

Statistically, most parenting orders made result in the child living with one parent and then spending time with the other parent in a variety of ways.  It is important to note however, that following the amendments to the Act on 6 May 2024, the presumption for equal shared parental responsibility was abolished.  Previously when the presumption was applied, it triggered a series of mandatory considerations including equal time, or substantial and significant time.  

“Spend time” orders will often be accompanied by other orders such as communication, special time and holiday orders.  The court can also make orders for supervised time, when it believes it is in the best interest of a child to do so.  This can include an order that a person’s time is supervised by a particular person (e.g. a party’s relative) or a professional contact service.  These orders are commonly made in interim proceedings where there are allegations of family violence.  Sometimes a party will consent to their time being supervised on an interim basis on a ‘without admissions’ basis so that they can recommence their relationship with their child. 

The child may reside in a home that is not physically safe or supportive; it may have no heat, electricity, water, sewer disposal. The house may be in general disrepair. The second physical instability comes from the interactions that occur between family members. The Court does not know you or your children and therefore it will rely on the evidence before it. Unfortunately, a high number of family law matters involve family violence – which is not always reported. In such cases, the only evidence available may be a party’s affidavit. The Court often will take a cautionary approach when asked to make orders on an interim basis as it will not have the benefit of being able to test the evidence. Other forms of evidence that a Court will take into account include history of police and Department of Community Services involvement, Medical Records and Family Report. If the evidence before it demonstrates the parties inability to co-parent effectively or attend to the physical and emotional needs of the children, it will not hesitate in making orders that it deems are in the best interests of the child including orders for supervised contact or no contact.

The superannuation splitting laws allow separating couples to value and divide their superannuation after a relationship breakdown. Under the law, the Court has the power to make a splitting order requiring payments under a superannuation policy to be allocated between the member and the non-member spouse.  How parties super is to be treated will depend on the circumstances of the case including but not limited to, the size of the property pool, contributions of the parties, whether there is to be adjustment for section 75(2) factors, the value of the superannuation interest, the duration of the relationship etc. The type of splitting order, if there is to be one, will ultimately depend on what is just and equitable in the circumstances.  In some cases, there may be no splitting order however one party may receive a greater percentage of the non-super assets. 

Typical things that are property for the purposes of the Act include:

• Real property
• Cars, boats, caravans etc
• Bank accounts (whether held in joint names or solely)
• Businesses
• Shares
• Jewellery
• Furniture
• Superannuation
• Partnership interests
• Trade or professional licences
• An asset of a family trust
• A beneficiaries interest in a deceased estate;
• Contractual rights
• Digital assets including cryptocurrency; 
• Windfalls ie. inheritances or lottery/gambling wins; and
• Vested bankruptcy property in relation to a bankrupt party to the relationship. In such cases, the trustee in bankruptcy or a creditor may intervene in family law proceedings.

While every case is different, there is a general process which is ordinarily followed when dealing with property settlements.  This process involves:

1. Identifying the assets and debts of the parties and determining their value;
2. Ascertaining the direct financial contributions made by each party to the relationship including:
   1. What each party brought to the relationship;
   2. What the parties or each of them accumulated during the relationship; and
   3. What each party has accumulated since the relationship ended.
3. Ascertaining the indirect financial contributions of each party i.e. gifts and inheritances from families;
4. Ascertaining the non-financial contributions by each of the party such as caring for children and homemaking; and
5. Ascertaining what is often referred to as section 75(2) factors or “future needs”.  This takes into account the age of the parties, health, financial resources, care responsibilities of children or other dependents and the earning capacity of each of the party and what assistance they may need in the future i.e. retraining. 

When applying for property orders (either by consent or otherwise), the court must be satisfied that in all the circumstances it is just and equitable to make the order. This is not so much of a step but rather an overall objective which permeates the entire process of altering property interests.

The short answer to this question is “everything” and until the matter settles. When in doubt, disclose. Failure to do so will almost guarantee an unfavourable assessment of your behaviour which can have adverse consequences.

The court’s treatment of the impact of family violence has evolved over the decades such that the court is often called upon to what was previously referred to as a “Kennon Order”. When seeking an adjustment based on family violence, it is critical that the evidence shows how the family violence impacted the contributions of that party. Where the court is satisfied that both the applicant was a victim of family violence AND the impact on them was so significant that it impacted their ability to contribute, any adjustment made is usually modest.