Children and Young Persons (Care and Protection) Act 1998 (NSW) provides that a person believing on reasonable grounds that a child is at risk of harm, may notify the Director-General of the Department of Community Services. Additionally, some jurisdictions provides that any person acting honestly and without recklessness in their reporting, will not be been deemed to have breached their professional ethics and is protected from civil liability, such as s 874 of the Children and Young People Act 2008 (ACT).

Although there are no specific provisions in South Australia and Western Australia for voluntary reporting, both jurisdictions still provide for those who have acted in good faith when reporting maltreatment of a child to the relevant authority, and will generally be protected from civil or criminal liability.

Section 90SB of the Family Law Act 1975 (Cth) (the Act) sets out when a court can make an order or declaration in relation to a de facto relationship if it is satisfied:

  • the total period of the de facto relationship is at least two years; or
  • there is a child of the de facto relationship; or
  • that one party has made a substantial contribution to the de facto relationship and a failure to make the order or declaration would result in a serious injustice; or
  • the relationship is or was registered under a prescribed State or Territory law.

Additionally, s 90SK of the Act sets out the geographical requirements to be met in order for a declaration or an order to be made, and the court must be satisfied:

  • that either or both of the parties to the de facto relationship had ordinarily resided in the participating jurisdiction when the application for the declaration or order was made, and either;
  • both parties to the de facto relationship resided in the relevant jurisdiction for at least a third of the de facto relationship; or the party applying for the declaration or order made substantial contributions in relation to the family or property in the relevant jurisdiction.

If the respondent is based in another country, it is important to find out whether Australia has an agreement with the other country in relation to civil proceedings, and such countries are referred to as a Convention country, as set out in reg 21AE of the Family Law Regulations 1984 (Cth). The other important detail, besides whether the respondent resides in a Convention country, is also whether the person is a citizen of that country.

If the respondent is in a Convention country, the documents may be sent to the registrar of the Family Court, who then forwards the documents to the respondent in the Convention country. For anyone who is unsure about the requirements of overseas service, they should check the Commonwealth Attorney General’s guide to Serving a legal document across international borders on their website.

For respondents in non-Convention countries, documents may be served by post or by using a process server in that country.

Section 90G of the Family Law Act 1975 (Cth) (the Act) outlines the circumstances when financial agreements are binding. The requirements are strict, and all parties must have been provided with independent legal advice about the effects of the agreement on the rights of the party, and the advantages and disadvantages of making the agreement. Additionally, the parties must be provided with a signed statement that independent legal advice had been sought, and that the agreement has not been terminated. After both parties have signed the agreement, both parties will be provided with either the original document, or a copy.

The Act provides the court a wide range of powers to make orders that the court deems necessary to enforce any agreements.

In demonstrating that a period of separation has begun, there are a couple of general actions that may be used as evidence, and can include:

  • one party to the marriage informing the other that the marriage is over, and which, separation will be considered to have begun from that point onwards; or
  • one party to the marriage may have begun living with a new partner or has taken steps to sever financial ties which may be actions considered as evidence that separation has commenced.

Separation can also occur when the parties may have separated, yet still reside in the same property. When demonstrating separation under one roof, it must be shown that at least one party to the marriage has considered the marriage has come to an end, and that the parties are residing independently of one another. Evidence of separation under one roof can include informing outside parties such as friends, relatives, or neighbours that the marriage has come to an end. Additionally, the parties also no longer engage in the usual activities that signify a marriage, such as sleeping in the same bed, cooking or cleaning for one another, or engaging in social events as a couple are just some examples.

Generally speaking, any property owned prior to the marriage may still belong to the party who purchased the property. However, the law may also treat the property as a contribution to the relationship, and the longer the marriage, the less important a factor pre-marriage property ownership becomes. There are no hard and fast rules as to the minimum length of time parties need to be married to one another for the property to be considered as jointly owned, and it will be up to the court to decide on the facts of each case whether the property forms part of the marital relationship, or still belongs to an individual spouse.

There may be instances where the court may consider that there is a “reasonable excuse” for contravention of an order with the reasonable excuses outlined in s 70NAE of the Family Law Act 1975 (Cth)(the Act), and are as follows:

  • the party fails to understand their obligations imposed by the order;
  • one party holds the reasonable belief that it was necessary to contravene the parenting order to protect the health and safety of the child, the parent, or another person;
  • the act of contravention was not for a period longer than was necessary to protect the health and safety of the person.

In order for one spouse to be maintained by the other, there are two general conditions that should be met. First, one spouse must be “unable to support herself or himself adequately” by the reasons set out in s 72(1) of the Family Law Act 1975. Secondly, the other spouse is reasonably able to maintain the other party. In the Marriage of Sharpe (1978) 31 FLR 500 at 501, Toose J noted that unless both conditions are met, there may be no maintenance liability for either spouse.

In order to prove separation under one roof, some of the evidence that can be used may include:

  • moving into separate bedrooms and informing another person of the change in the sleeping arrangements
  • informing friends and family that a separation has occurred
  • recording the separation on a document and preferably having both parties sign and date the document
  • changing the will
  • informing outside entities of the change in the relationship, which may include banks or insurance companies.

A testamentary guardian is a person who is responsible for taking care of the child’s daily and long term needs if there is no surviving parent, and there are no other court orders stating who the child shall live with.

If a testamentary guardian does take up the role of a primary carer, he or she will generally have the same types of powers, rights and duties of a natural parent – such as the ability to make important life decisions on the child’s behalf. Additionally, testamentary guardians also need to ensure that the child is adequately housed, clothed, and educated.

Similar to the types of considerations you would make in the best interests of your child, deciding who is to be your child’s testamentary guardian is extremely important. Therefore, it’s essential that you have an in-depth discussion with a potential guardian addressing issues such as; how you wish your child to be raised, which may include matters such as, religious and educational considerations. Having such a discussion will ensure that your child will be properly looked in accordance with the wishes of you and your partner.

Any statements made by the parties to the dispute and any child during family counselling and family dispute resolution are for the most part, confidential. However, it should be highlighted that the confidentiality requirements is also extended to the Child Responsive Program.

Family counsellors, practitioners, or any other professional referred to by the family counsellor or practitioner, generally cannot disclose any information contained in statements. However, under the following circumstances, a family counsellor, practitioner or other professional may be compelled to release information contained in the statement under the following circumstances:

  • the counsellor or practitioner is compelled by law to report the information, such as instances of child abuse or if a there is a risk of abuse;
  • the parties or persons with parental responsibility for the child involved in the matter have provided their consent;
  • the counsellor or practitioner holds the reasonable belief that disclosure is necessary in order to protect the child from harm, or to protect against threats to a person’s life, health or property;
  • the information would help the independent child’s lawyer to perform their role;
  • under s 60L of the Family Law Act 1975 (Cth), it is necessary for the provision of a family dispute resolution certificate.

Most family law disputes are resolved without the court being required to make a decision. Most applications to the court are made to formalise an agreement reached between the parties.

One of the first decisions you will face upon separation is whether to engage a lawyer.  It is particularly important to be represented by an experienced family lawyer when there are children involved, where your spouse has engaged a lawyer, where there is significant disagreement about parenting or division of property or where you are not emotionally prepared to negotiate matters directly.

Yes, certain time limits do apply. For example, with property settlement and spousal maintenance issues, the limitation period for filing an application is 12 months from the certificate of divorce being issued for married couples, or two years from the date of separation for defacto couples.  For divorce applications, there is no time limit in which the application can be submitted.

Superannuation is treated as a different type of property.  Separating couples may value their superannuation and split superannuation payments. Splitting does not convert superannuation into a cash asset and it remains subject to superannuation laws.

Your Family Law Team

Danielle Henderson
Tahereh Rouhipour
parke separation lawyers jim parke
Jim Parke

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