Questions often arise as to how long after separation a person has to apply to the Family Courts to obtain property Orders.
In the case of marriage, a person is able to commence proceedings before the Family Courts seeking property Orders for up to 12 months after the date of divorce.
It is important to know when the date of divorce is. The date of the divorce is 30 days after the date the divorce order was made by the courts.
The divorce date will always clear and readily obtainable.
In the case of de facto couples, a person is able to make an application to the courts for property settlement for 24 months after the separation date.
In the case of de facto couples, the separation date is not always clear.
It is often helpful to have some evidence such as a text message or letter, at the time of separation, confirming the separation date.
It is important that you seek legal advice as soon as possible after separation to ensure that you are not out of time to commence proceedings before the Family Court.
Both de facto and married couples can commence proceedings out of time by agreement.
If parties agree to commencing proceedings out of time, but there remains disagreement about who is entitled to what proportion of the property pool available for distribution, then, the proceedings can commence out of time (by agreement) with the balance of the issues to be determined by the Court.
If however, there is no such agreement, a person is able to apply to the courts and seek permission to commence proceedings out of time.
In order to be successful in getting the court’s permission to commence proceedings out of time, a party will need to demonstrate the following:
- That hardship would be caused to a party to the marriage/relationship or a child if leave were not granted to the applicant; and
- The applicant can show that they have a real probability of success in their property settlement claim.
In considering whether the Court will grant its permission for the proceedings to commence out of time, the Court will also consider the following:
- The length of the delay;
- The reasons for the delay;
- Prejudice caused to the respondent by reason of the delay;
- The strength on the merits of the applicant’s case; and
- The degree of the hardship which would be suffered unless leave were granted.
In the matter of Slocomb & Hedgewood1 the Full Court of the Family Court allowed Ms Slocomb to commence proceedings for property settlement nearly 18 years out of time.
The Court found that although Ms Slocomb provided only some explanation for the delay, Mr Hedgewood had been equally inactive in protecting his rights.
Although the parties were significantly out of time, and the property pool was relatively small, the Court concluded that permission should be given to pursue property proceedings in the interests of justice.
The above demonstrates that not one of the considerations alone set out above, such as the length of delay, will be determinative of whether the court will grant permission to commence property proceedings out of time.
If you have recently separated or already exceeded the time limits set out above, you should obtain urgent legal advice in respect of your rights in obtaining a property settlement.
1  FamCAFC 219
Most people are surprised to learn that lottery wins acquired after separation can form part of the property pool available for distribution between them. If they have not already formalised a property settlement. Whether a lottery win is categorised as a joint contribution or sole contribution to the property pool is important.
Practically speaking, if categorised as a joint contribution, the property would be distributed accordingly.
If categorised as a sole contribution, the party who acquired the winning lottery ticket is likely to retain a much greater portion of the winnings.
In the 2014 matter of Eufrosin & Eufrosin1 the Full Court of the Family Court considered the purchase of a winning lottery ticket by the wife 6 months after separation. The husband contended that the wife had used funds from a business operated by him to purchase the winning lottery ticket. However, the Court found that whilst regular withdrawals were made from the business by both the husband and the wife after separation, those funds were then applied by each party to their own individual financial lives, being wholly unconnected with the former marital relationship. Accordingly, the source of funds used to purchase a lottery ticket will not by itself determine the issue of whether a lottery win after separation will be considered a sole contribution by a party or a joint contribution of the parties to the property pool.
If the parties’ have separated and there is no longer a common use of property and financial resources at the time the winning lottery ticket was purchased, a lottery win is likely to be considered a contribution to the property pool by the individual who obtained the ticket.
If the parties’ have separated but are not yet living separate financial lives (this might be the case if the separation is very recent), then the Court may find that the lottery win is a joint contribution to the property pool.
Even if a party successfully convinces a Court that the lottery win received after separation was their sole contribution to the property pool, the court may still award the other party a portion of it.
The reason that the Court will often (but not always) award the other party a portion of the lottery winnings is to account for the other party’s future needs after separation.
This is intended to provide a fair and equitable outcome ensuring that each party receives a fair distribution of the property having regard not only to their contributions to the property pool, but also, their future needs after separation.
To demonstrate the point, in the above matter, as a consequence of the husband’s greater financial needs after separation, the husband was awarded the sum of $500,000 of the lottery win.
Similarly, in the matter of Farmer & Bramley2 the husband won the lottery 18 months after separation in the sum of five million dollars ($5,000,000).
In that matter, the parties had lived together for 12 years, however at the time of separation there were no assets of any significance.
During the relationship the wife supported the husband through a heroin addiction, whilst he studied, and the child of the relationship resided solely with the wife without any financial support from the husband.
In that matter, having regard to the wife’s significant financial and non-financial contributions throughout the twelve-year relationship and the existing disparity of the parties’ financial circumstances at the time of the hearing, the Court awarded the wife in the sum of $750,000 (approximately 15% of the winnings).
Similarly, the matter of Bradley & Weber3 the husband won a lottery in the sum of $1.27 million, six months after separation.
The wife was awarded $225,000 (approximately 20% of the winnings) even though the husband had purchased the lottery ticket six months after separation, and they had been living separate financial lives.
The above cases are good examples of why parties should formalise their financial affairs between them at the earliest possible opportunity to ensure any future property acquired by them is free from any claim as their former partner or spouse.
Had the above lottery wins been received after formalising the financial affairs by a binding financial agreement, or Final Orders of the Court, thereby bringing an end to the financial matters between them, the other party would not have been entitled to receive a portion of the winnings.
1  FamCAFC191.
2  FamCA 1615.
3 (1997) FLC 92-770.
Yes. Although the Family Courts treat superannuation as a different class of property than other property such as houses, cars,motorbikes, savings and home contents (the Court refers to this type of property as cash assets). Because superannuation is something that you don’t have access to (unless of retirement age) people often tend to forget about superannuation when considering their property entitlements. In some cases, the superannuation entitlements of parties are significant and sometimes, the only significant property of the parties.
It is not uncommon for a party (usually but not always the mother) to take a significant amount of time from the work force to raise children and to contribute as the primary homemaker and parent of the relationship. It is not difficult to imagine a scenario where the mother has contributed as a primary homemaker and carer for the duration of a long relationship, but because the father was the sole income earner, the parties have not acquired cash assets of significant value. Meanwhile, the husband/father due to his ongoing full-time work for the duration of a long relationship, could have amassed significant superannuation entitlements whilst the wife/mother has acquired little to none.
Another common scenario is where one party is self-employed and applies all their available income to the living expenses and/or cash assets of the parties, as opposed to making contributions to a superannuation fund.
In cases such as this, if the other party maintains full time employment for most of the relationship, they would likely acquire significantly greater superannuation during the relationship than that of their spouse.
Accordingly, it is important that superannuation is given proper consideration when discussing a property settlement, even if there are no other significant cash assets to consider.
In a long relationship where the contributions of the parties (both financial and non-financial) have been more or less equal, one party should not end up with significantly more superannuation than the other party. To correct any imbalance to the parties’ superannuation entitlements, a superannuation split can be either agreed between the parties and formalised in an Application for Consent Orders or Binding Financial Agreement, or, Ordered by the Court.
A superannuation split will take a portion of the superannuation from the party with more and roll it over into a superannuation fund of the party with less. However, whilst neither party would be eligible to access the superannuation entitlements until retirement age, a superannuation split will ensure that parties are able to enjoy similar entitlements when eligible.
If you need advice regarding your superannuation in relation to your Family Court proceedings – get Conditsis involved, contact us now.
Generally speaking, a windfall such as a lottery win acquired during a relationship will form part of the property pool that the Family Court will adjust between parties.
The question that often arises is whether that lottery win is to be considered a contribution by the person that purchased the lottery ticket, or, a contribution by both parties.
The family Courts will generally view such a lottery win during a relationship as a joint contribution by the parties1 notwithstanding that the lottery ticket may have been purchased by only one of the parties and from their sole income.
The Full Court of the Family Court when explaining why it took that position, commented as follows:
“Where both parties are in receipt of an income and where the marriage is predicated on the basis of each contributing their income towards a joint partnership constituted by their marriage, the purchase of the ticket would be regarded as a purchase from joint funds in the same way as the purchase of any other property within that context and should be treated accordingly. Where one party is working and the other party is not, the same conclusion would ordinarily apply because that is the mode of partnership selected by the parties”.
The above comment recognises the importance of non-financial contributions as well as financial contributions made by parties during a relationship and demonstrates that a party does not need to be earning an income to be considered to have jointly contributed to the lottery win.
The question of whether a lottery win will be considered a joint contribution of the parties or a sole contribution, will largely be determined by the circumstances of the relationship existing at the time when the ticket was purchased.
For a discussion on how the Court treats lottery wins received after separation, please see “Lottery Winnings After Separation – Who Gets the Money in Family Court Proceedings”.
1 Zyk & Zyk  FamCA 135
Chief Justice Diana Bryant has called on the Government to increase funding for the Family Court, describing the underfunded system as letting down “vulnerable people caught up in the system”.
Newcastle: Court delays in action
To see the backlog in action, look no further than Newcastle’s Federal Circuit Court. The court is experiencing a 19-month backlog in dealing with family law matters after one of three judge positions was left vacant from February 2017. The two judges who remained are each responsible for about 770 matters – almost double the national average.
On 8 September, it appeared calls for assistance may have been heeded, with the Government announcing the appointment of Jane Costigan to the Newcastle Registry of the Federal Circuit of Australia.
The Family Court workload
The Family Court is a busy jurisdiction. In 2015-16 over 100,000 applications were filed in the Family Court system across family law issues including:
- separation and divorce
- parenting and custody disputes
- family and domestic violence
- missing children
- property and finance matters.
The average delay from filing to hearing is approximately 17 months, but some families have waited up to three years for their case to be heard.
Finding a balance for self-representation
In 2015-16, 44% of people involved in Family Court matters represented themselves. The increase of 5% from the previous year reflects the ongoing trend towards self-representation.
Self-representation is a right but can leave the system clogged with people without legal experience trying to run complex legal cases. Especially when emotions are running high around children, custody and divorce.
The Family Court recommends getting legal advice, but there’s no obligation to do so, and not everyone is eligible for legal assistance. Despite the costs of a legal representative, professional family law expertise is likely to help move their case forward and resolve it quicker than through self-representation.
Delays leading to settlements
The waiting times aren’t in keeping with the Court’s vision of putting children and families first and maintaining functional family relationships after separation; the backlog is not helping.
Backlogs in family law courts increase the likelihood some will choose to settle their case. Dispute resolution without judicial processes – including resolution of cases by agreement between the parties – is a fundamental element of family law. However, the need for closure to matters can encourage settlement in a case, and an outcome which isn’t in the best interests of children and families.
No resources to check compliance
When cases do make it through the system, a lack of resources means there’s no capacity to monitor compliance with orders made by the Court. Chief Justice Bryant remains concerned the Government “doesn’t understand the effect this is having on families”. Without enforcement of compliance, decisions of the court are rendered almost meaningless.
Fixing the faults
Chief Justice Bryant called on the Federal Government to boost court funding so more registrars and family consultants could ease the bottleneck.
The Government responded by announcing a $10.7 million package to engage more family consultants across the Federal Circuit Court of Australia, the Family Court of Australia and the Family Court of Western Australia.
It remains to be seen if this injection of funds for frontline services is enough to make a difference to the family law delays.
Resolving your family law matter
If you have a family law issue in the Family Court, your best chance of a speedy resolution in the best interests of your family is specialist family law expertise.
We’re ready to help
New laws proposed by the Federal Government would introduce streamlined parenting hearings and preventing victims of family violence from being confronted by alleged attackers.
Following a review of the Family Law Act, the changes are expected to help reduce bottlenecks and long waiting periods in the Family Court, and reassure victims of violence of their safety in the system.
Parental Management Hearings for smarter dispute resolution
The new laws propose a $12.7 million investment in parental management hearings to resolve family law disputes.
The hearings are a new approach to resolving less complex family law disputes where both parties are representing themselves. In 2015-16, 44% of cases before the Family Court involved self-represented parties.
Designed as a less adversarial approach, the hearings will gather evidence from both sides to make decisions in the best interests of children and families.
Planned for a trial in Parramatta, the hearings would be rolled out across all relevant Australian jurisdictions.
No face-to-face contact protects victims of family violence
Current laws still allow for the victims of domestic and family violence to be cross-examined by their attacker who has been charged or convicted, or by an alleged offender.
The draft laws propose new rules preventing victims of family violence from being personally cross-examined by convicted or alleged perpetrators, or be required to cross-examine the convicted or alleged perpetrator if they are representing themselves. Instead, the court will appoint another party to undertake the cross-examination.
The new approach is a response to concerns that this interaction may further traumatise victims of violence, and the fear of facing attackers in court contributes to victims not reporting family violence.
Critics say the changes don’t go far enough, and that to protect victims, legal representation should be required for both parties, so family lawyers with expertise in these types of cases are a ‘buffer’ between the victim and the alleged abuser.
Public consultation has now closed on the issues, with a report expected in 2018.
Help when you need it
Family law can be a complex area – it can be emotionally draining for parents and children. Our specialist family law team are experts in dispute resolution and in supporting you through the Family Court hearing process. At the heart of our approach is maintaining your family relationships and acting in the best interests of your children. Contact Conditsis Lawyers today.
The end of a relationship can be an emotionally draining time, especially when children are involved.
Amid the upset and turmoil, a number of big questions need to be answered. Who will the children live with? How much time will they spend with each parent? What will be the responsibilities of each parent? And how will you negotiate other people, such as grandparents?
In almost all cases, we find that it’s best if you and your former partner can reach an agreement on how your children will be cared for. However, if you are unable to agree, you may need to consider a dispute resolution process or a court enforced parenting order.
Before you can apply to the court for a parenting order, in most cases you will need to take part in a Family Dispute Resolution Conference. This will give you and your former partner an opportunity to actively shape a solution for your family. In order for dispute resolution to be effective, both parties need to make a reasonable effort to communicate with each other and resolve the situation through counselling or mediation, with the help of an experienced Family Law solicitor.
Generally, dispute resolution is faster, cheaper and less stressful than going to court. It also improves the chances of finding a lasting resolution to your problem.
If you and your former partner are unable to resolve the issue through dispute resolution, you may need to consider applying to the court for parenting orders. Going to court is stressful, costly, and time consuming, however it can sometimes be the only way forward.
The Family Law Act 1975 (Cth)
If your matter does progress to court, your situation will be assessed based on Australia’s leading piece of family law legislation; The Family Law Act 1975 (Cth) (The Act). The Act covers all matters surrounding the custody of children in Australia, and it’s based on two major concepts; parental responsibility and the best interests of the child. If you do go to court, it’s worth taking some time to think about how these issues may affect your case.
Parental responsibility is a key issue in Australian family law. In Australia, both parents are legally responsible for their child/ren until they turn 18 years of age. This is the case even if you or your former partner choose to remarry or start a new family.
When the court considers parental responsibility, it takes into consideration your ability to make decisions that affect the day to day care, and ongoing welfare of your child.
Best interests of the child
The Family Law Act 1975 is designed to protect the ‘best interests of the child’. This means that a court ruling is likely to prioritise what is best for your child/ren over what is most convenient for you or your former partner. If you are about to go through this process, it’s important to understand that the Family Law Act 1975 does not focus of ‘parental rights’, but rather, ‘parental responsibility’.
At Conditsis Lawyers our sympathetic and experienced team of family law specialists understand the emotional and financial impact law proceedings can have on you and your family.
In Australia, Divorce is obtained by an Application to the Federal Circuit Court of Australia.
The Divorce only deals with the dissolution of the marriage. It does not deal with issues of financial support, property distribution or arrangements for children.
Grounds for Divorce
The only ground for Divorce in Australia is that the parties have been separated for at least 12 months and that there is no reasonable probability of them recommencing married life.
Who can apply for a Divorce in Australia
Either you or your spouse must be:-
- An Australian citizen by birth or granted citizenship; or
- Currently living in Australia and intend to live here indefinitely.
If you were married overseas and satisfy the other requirements you can apply for a Divorce here in Australia. You must provide a copy of the marriage certificate. If this is not in English you must have it translated by a qualified translator.
If your marriage is less than 2 years, you and your spouse will need to obtain counselling and obtain a counselling certificate, or file an Affidavit (sworn statement) along with a Divorce Application as to why this has not happened.
Separation under the one roof
You and your spouse may live in the same household during the 12 month period of separation. You have to prove that you were in fact separated during that time. This done by way of an Affidavit (sworn statement) filed with the Divorce Application.
Do you both have to agree to a Divorce?
No. Only one of you have to decide that the marriage is over, and communicate that to the other spouse.
If there are no children of the marriage under the age of 18 years you will not be required to attend the Court Hearing.
If both you have your spouse make the Application for Divorce and there are children under the age of 18, neither of you will be required to attend Court.
However, if you apply for a Divorce as a sole Application and there is a child of the marriage under the age of 18 years you must attend the Court Hearing.
A child of a marriage is:-
- A child of both you.
- A child adopted by you and your spouse.
- A child of your spouse.
- A foster child who is under your care and living in the household of you and your spouse during the marriage.
Divorce can become complex once other factors are involved.
It is recommended that you seek legal advice before commencing these actions.
Separation and divorce is tough on families, especially children. Even when both parents want the best for their children, it can be difficult when emotions are running high and finances are involved.
If you can reach an agreement with the other parent about parenting arrangements, a Parenting Plan is a great start. But it’s important to understand the difference between types of agreements, and how best to protect yourself and your children.
What is a Parenting Plan?
A Parenting Plan is an informal agreement made between both parents which can cover information like:
- where your child lives including shared custody, scheduled visits, school holidays and special occasions like birthdays
- how you’ll work together to make any big decisions
- who your child spends time with
- who is in charge of day-to-day responsibilities like transport between houses, or medical appointments
- how you’ll resolve an issue if you disagree.
The agreement needs to be in writing and signed by both parents. There’s no special form or standard format for a Parenting Plan, so it’s a good idea to get help from an experienced Family Law solicitor to make sure all the important issues are covered.
Do we have to make a Parenting Plan?
No. But the law encourages parents to make their own parenting decisions, without the need for a court case. Agreeing on a Parenting Plan means you can avoid going to Court and having others make decisions about your children.
You don’t need to wait until you disagree before you get legal help with your Parenting Plan. Your Family Law solicitor can provide support to resolve any disputes and negotiate an agreement.
If you feel any pressure or threatened to agree to a decision, get independent legal advice before signing anything that will affect you and your children.
Is a Parenting Plan enough?
A Parenting Plan doesn’t have to be registered with the Family Court and is not ‘enforceable’. But to give both parties certainty, and provide security for your children, you can register the Plan with the Family Court.
How do I register a Parenting Plan as a Parenting Order?
If both parties agree on a Parenting Plan, you can choose to register it with the Family Court as a Parenting Order (called a Consent Order when both parties agree on it). You don’t need to attend a court proceeding, but each parent should receive independent legal advice.
A Parenting Order can also be made by the Court if parents can’t agree on arrangements. This takes the decision-making out of your hands and a judge will decide on arrangements based on what is best for the child’s welfare, and ensuring they maintain a relationship with both parents. The judge will take any existing Parenting Plans into account if they need to make a Parenting Order.
Which is the best choice for me?
Even if you’re getting on well with your ex, it’s still a good idea to register your Parenting Plan with the Court. If there is any history of abuse or violence, it’s essential to register the agreement for your own peace of mind.
We’re ready to help
Our experienced family law team will support you through making a Parenting Plan and registering it with the Family Court. We’re experts in managing separation and children’s issues, and reaching agreements to meet your children’s needs and maintain family relationships.
Even if you agree on a Parenting Plan with your ex, talk to a Family Law solicitor and register the Plan with the Family Court.