Separation between de facto partners and married couples
The date of separation is an important one in the context of family law and for de facto relationship law.
The separation date is relevant to issues such as when divorce can be sought, when limitation period might expire, contributions for property settlement and other issues.
What is separation?
I assume most people would think they know whether they are separated or not however surprisingly it is often an issue. This is particularly the case when there is a reason to make it an issue such as when one party alleges a limitation period has expired.
In legal terms a “separation” is more than a physical separation. It involves the breakdown of the consortium vitae which is a fancy Latin way of saying “marital relationship”.
What was said of marital relationship in the case of In the Marriage of Todd No 2 has often been repeated by courts as being correct:
“What comprises the marital relationship for each couple will vary. Marriage involves many elements some or all of which may be present in a particular marriage – elements such as dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of the marriage by both spouses in public and private relationships, and the nurture and support of the children of the marriage.”
Thus the notion of separation occurs when there is a breakdown of the above marital relationship, in a de facto relationship, or marriage.
This means people can be living apart and not separated; or living together and be separated, i.e. “separated under one roof”.
The practicalities of separation
To determine the separation date, three other conditions are necessary. These are:
- One or both people in the marriage or de facto relationship form an intention to separate;
- The person forming the intention to separate acts on the intention – because marital relationships vary for each couple, this can usually be determined by examining the relationship before and after the alleged separation date. Casual acts of sexual intercourse after separation don’t necessarily mean you’re back together but it could form part of the evidence to support a resumption of the marital relationship;
- Communication of the intention to separate – This was mentioned in the case of Todd No 2 referred to above however it was subsequently recognised in In the Marriage of Falk. This condition requires that communication be direct or indirect by words or conduct.
I suppose you could say considering the above breaking up by email or text is the smart thing to do if you want to be clear about the separation date.
Perhaps it’s better etiquette to have the “it’s not me – it’s you” conversation (did I get that right?); and follow up with a gentle email or text message to confirm the date.
Why is the separation date important?
The main reason why separation date is important is in relation to divorce, the breakdown of a de facto relationship, and limitation periods.
The Family Law Act 1975 replaced the fault based grounds for divorce that existed previously with the one ground, that is, “irretrievable breakdown of the marital relationship”.
This ground for divorce is established by a continuous period of separation of not less than 12 months. Thus separation is necessarily established to obtain divorce.
After divorce has been granted a limitation period for property settlement in marriage operates 12 months after the date of divorce. This means if you get divorced you may not be able to seek property settlement without the permission of the court.
In de facto relationships the limitation period is 2 years after the end of the de facto relationship (date of separation).
Sometime the court will treat contributions people have made to property after separation differently in assessing property settlement. There have been a number of cases in which people have had windfalls such as Gold Lotto wins or inheritance at about the date of separation, or shortly after, that makes the date of separation an issue.
In the context of child support and child support calculator
Section 25 of the Child Support Assessment Act 1989 provides one of the conditions to obtain child support is that the applicant is not living with the other parent as his or her partner on a genuine domestic basis.
Section 9 provides “separation” means “circumstances in which the parties to a marriage are, under the Family Law Act 1975 taken to have separated”. Thus the principles are the same and the date separation occurs is relevant.
The child support calculator or child support estimator link is available in an earlier blog post for anyone wanting to obtain an indication of child support payments payable.
Family law advice
If you have any queries in relation to separation, divorce, de facto relationships, property settlement or child support payments, my firm Hooper Mill Family Lawyers can assist you with practical advice. We are Brisbane Family Lawyers servicing all areas.
The Family Report
The family report has significant weight in parenting proceedings and to assist with parenting arrangements post separation. It is often very helpful to have a family report prepared prior to mediation or family dispute resolution to assist separated parents. It is important to understand what the report entails, who writes it, and how it affects custody arrangements.
Who writes it?
The court appoints a specialist family report writer to write the family report. The family report writer is an independent expert and can be appointed privately by the parties or as Court appointed “family consultant”. Strictly speaking the report writer has the status of being a Court Expert (Federal Circuit Court Rules) or Single Expert witness (Family Court Rules). This means the family report writer is not a witness for either party and may be cross examined by either party. The specialist normally has a background in psychology and/or social work.
How is the report written?
Once the court appoints the report writer or consultant they begin the interview and observation process. They will interview both parents and people close to the family and often observe the children in an informal interview, observe transition between adults, and see how they interact with the adults. The children have the option to speak with the family report writer or consultant but can choose not to.
What factors are considered?
In a custody matters, the aim is to ensure the best interests of children are met. Interviews with family members assist to determine issues in the custody matter that need to be addressed and provide recommendations as to the best interests of the children:
To keep in mind
It is important to make sure you attend the interview process. Failing to attend may cause delay, potentially cause costs against you, or that the family report is admitted into evidence without your input. Your divorce lawyer should provide you with date, time and other necessary information in advance.
The report is only one piece of evidence in the case but the judge usually places a fair degree of weight on the opinion of the independent expert. The report writer or consultant makes recommendations about custody and access to children but the court isn’t obliged to follow them. If there’s an argument about the report, there’s an opportunity to cross-examine the consultant and the family members they interviewed.
Lastly, there’s no such a thing as off the record in a meeting with the report writer or consultant. They’re obliged to write a thorough report. Anything they’re told either goes in writing or sent to the court.
Family Consultant FAQs
What is a family report?
Child Focused and Child Inclusive Mediation: What To Expect
In 2006 the Howard Government made changes to the Family Law Act 1975. This made Family Dispute Resolution (generally mediation) compulsory in most parenting matters. An Accredited Family Dispute Resolution Practitioner conducts the mediations. They have the authority to issue a certificate related to section 60I of the Act.
The Certificate (or final report) is like a piece of evidence for the Court. It includes whether the parties both attended mediation and made a genuine attempt to mediate or whether the Family Dispute Resolution Practitioner determined mediation is inappropriate.
Child focused or child inclusive mediation are two mediation models made to help parents work out a suitable parenting arrangement after their separation. Below is basic information on these models, the mediation process and recording of agreements.
What’s child focused and child inclusive mediation?
Child focused mediation seeks to encourage the parties to look beyond their disputes and consider how the agreements benefit the children. Often the mediator will educate the parents to better understand how the dispute and separation negatively impacts their children, both in the long and short term. Hopefully this information will help the parents to look beyond their positions, personal
wants and needs and encourage them to focus on the children.
The child inclusive mediation takes this a step further by arranging for the children to have an interview with a qualified child consultant. They speak with the children in a separate session, and will relay the children’s thoughts and feelings to the mediator and the parents. The child consultant carefully considers what information to report; their priority is the child’s welfare in the separation.
Child focused mediation resulted in greater fulfilment with the mediation process and longer lasting agreements. Child inclusive mediation, though, provided even better results than child focused mediation in these areas. (McIntosh, Wells et al, 2008:46; McIntosh 2007:4)
Screening process
In this initial process, each parent meets with the Family Dispute Resolution Practitioner mediator. They screen for factors that may make mediation inappropriate. These factors include family violence, substance abuse, mental health and other imbalances affecting a party’s ability to participate in mediation.
On occasion the Family Dispute Resolution Practitioner will need to “balance power”. It’s not unheard of for both sides to try and “tip” the balance in mediations to their advantage. Therefore, the screening is vital to determine the needs of the parties and if mediation is a realistic route to take.
Facilitative mediation
The Family Dispute Resolution Practitioner’s role is to assist the parties to determine the outcome for the dispute themselves. It isn’t the role of the Family Dispute Resolution Practitioner mediator to advise or influence a party.
Generally, the Family Dispute Resolution process will require these steps:
Parenting Plans
Parenting Plans are methods of recording the agreements. These are written, signed and dated. These plans aren’t enforceable in a Court. But if the matter makes it that far, the Parenting Plan is evidence that an agreement exists, and is usually persuasive with the Court’s final decision.
Choosing A Family Lawyer
The shock of divorce is tough; finding a qualified lawyer or solicitor is crucial to help deal with all the challenges you’ll face on the way. Thanks to the emotional strain of separation, it’s difficult to deal with matters like child custody, splitting property and dividing assets. Having the right representation will make dealing with these much easier. But the question at the front of people’s minds is; how do I choose a family lawyer?
In this day and age anyone can find anything on the internet. Going to a legal authority such as the Queensland Law Society will help you narrow down your search.
If you know someone who’s gone through a similar experience, it’s good to ask them for advice. They might even recommend the solicitor who represented them. Word of mouth is just as good as a five-star review, but both combined together are signs of a great practice.
When you’re searching the web, check a lawyer’s qualifications. Lawyers have to learn new things constantly so that they’re up to date with the latest legal developments in their speciality. They should also have recognition from a state legal society and bar association.
The family lawyer will be representing you during one of the toughest times in your life. When you sit down with them, it’s important to feel at ease. Entering a meeting and feeling your guard go up with no signs of going down isn’t a good place to start. There’s no shame in saying the solicitor you met with isn’t right for you. Sometimes people want to work with someone their own age or their own gender.
Your lawyer is on your side but that doesn’t mean they’re supposed to agree with everything you say. Family lawyers act in the best interests of who they represent and they’ll try to fulfil wishes to the best of their ability. Sometimes though, some desires just aren’t achievable and a good lawyer will actively work towards a compromise.
A good family lawyer also communicates with their client regularly in terms of fees and settlements. In the legal area there’s no need to put people through any more stress that they can otherwise avoid.
Child Inclusive Mediation: Facts and Stats
The emotional stress of divorce is felt through any family, especially to the youngest and most sensitive members. The children. The child inclusive mediation method was developed in response to research about the effect parental conflict during separation has on children. The primary goal of this method, according to Professor Lawrie Moloney, is to re-establish and maintain a secure emotional base for children post separation (Moloney 2012:3)
What’s the child inclusive mediation method?
Dr Jennifer McIntosh, a clinical child psychologist, describes some of the fundamental elements of the CI process as follows (McIntosh 2007:5):
Child inclusive mediation “ups the ante” by directly involving the children. This way the parents truly understand how their child feels and what they want. Expert advice is still considered in the proceedings as they’d meet with the children to gauge their state of mind during the separation.
The ultimate goal of any mediation involving young people is to reduce conflict and to prohibit agendas or “tactics” one parent may use over another to gain primary custody.
Does this method work?
In a 2006 study, 79% of the combined child-inclusive and child-focused mediation participants reported flattening out of their conflict. Other statistics from the study showed:
In mediation, a clichéd image is the mother having primary custody awarded to her. However, there is an interesting result from the 2006 study. There was less acrimony, greater fulfilment with resolutions and a stronger sense of agreement among fathers in the year after the mediation (McIntosh and Long 2006:122). Fathers also had a greater perception of fairness from the child inclusive process (McIntosh and Long 2006:124)
For mothers there was a greater sense of preservation in the bond with their children. The benefits for the children included a perceived “closeness” with their father’s. They also reported being happier with agreements 1 year after the mediation (McIntosh and Long 2006:122).
Christmas, Parenting Orders and Family Law
It’s that time of year again and things can become a little tense as holiday, Christmas Day and New Year plans for separated families are negotiated or implemented.
Separation is never easy; and special occasions like Christmas can often be very difficult, highlighting the reality of the changed living arrangements post separation. This can be the case for parents who have “custody of children” as well as for the parents who have arrangements traditionally thought of as “access”, “contact” or “spends time and communicates”.
The important thing to remember in any post separation parenting situation is negotiations occur “in the shadow of the law”.
This means both disputing parents ought to consider how the law might apply to their circumstances when they are engaging in negotiations.
The law empowers judges to exercise “discretion” to make parenting orders, and the process by which this occurs is complex.
However, two very important propositions bear heavily in the mind of a judge being called upon to make a parenting order. These are:
From a practical perspective the best thing for both parents to do is remain “child focused”. This means try to consider what arrangements will place the best interests of the children, ahead of their own interests or feelings.
In my experience as a Brisbane Family Lawyer, some of the things that may be relevant for you to think about, or ask yourself, in making parenting arrangements at Christmas:
These are adult issues and it’s not a good idea to question your children directly as to what they want. Hopefully you know your children well enough to have an instinctive knowledge of what parenting arrangements they would prefer.
One of the most child focused post separation steps you can take for your children is to be “business like” in your dealings with the other parent, even in difficult circumstances, or when Court proceedings have commenced.
If you are dealing with a difficult or litigious ex-partner in a parenting matter, conducting yourself in a manner consistent with the above will be important evidence that you are child focused.
Judges make Orders they think will promote children’s rights and best interests. In my experience it is usually very obvious to the Judge whether one party (or both) is not behaving in a child focused way. If it’s not obvious immediately, it will usually become obvious as the litigation proceeds.
If you need the assistance of the Court to spend time with your children at Christmas, remember this is traditionally a busy period, and it is a good idea to get advice as earlier in the year. Rule 5.01A Family Law Rules 2004 provides the application must be filed before 4.00 pm on the second Friday in November of the application year if it relates to Parenting Orders during the Christmas School holiday period.
Ref: Flood and Fergus 2008 referred to in Morgan A and Chadwick H (2009) “Key Issues in Domestic Violence” Australian Institute in Criminology, Summary Paper No 7, at 8.
Parenting – Can I get equal time? Or shared care week about time?
Since the 2006 Howard Government amendments to the Family Law Act 1975 the idea of equal time or shared care has gained greater prominence. This has occurred as a result of introducing two sections, the effect of which places the concept of equal time or shared care, at the forefront of the Judge’s reasoning.
In addition to these amendments, inaccurate media reporting has in my view contributed to a higher awareness among litigants as to the availability of equal time and shared care, and more application or consent orders for equal time or shared care.
Family Law Act 1975 – 2006 Amendments
There are two sections that primarily serve to promote the idea of equal time and shared care. They are:
1. Section 61DA – this section introduced a rebuttable presumption that equal shared parental responsibility is in the best interests of a child.
Parental responsibility is the responsibility for making long term decisions for a child, not “equal time” or “shared care”.
This may be open ended but the Family Law Act 1975 definition in section 4 provides some examples of these decisions, including education, health, religion and culture, name and location of the child’s residence that would make it significantly more difficult for a parent to spend time.
As stated above, the presumption is rebuttable (by evidence that equal shared parental responsibility is not in the best interests of a child); and won’t apply where there are reasonable grounds to believe a parent (or person living with a parent) has engaged in abuse or family violence.
Where the presumption does apply, a further section is relevant to the question of equal time or shared care. This section is:
2. Section 65DAA – this section provides for a 3 tiered pathway to be considered by the judge in making a parenting order. The steps are:
a. To consider an order for equal time; and if not reasonably practicable or in the best interests of a child;
b. To consider an order for substantial and significant time; and if not reasonably practicable or in the best interests of a child;
c. To consider what order is in the best interests of a child.
Thus the first consideration is for equal time or shared care but consideration to make this order is subject to it being in the child’s best interests (Section 60CC(2) and (3) contains the best interest factors); and for it to be reasonably practicable for such an arrangement to occur.
The requirement for “reasonably practicability” is important and covers both what is physically practicable and emotionally practicable for a child.
Prior to the above amendments there was little in the way of guidance from the court with respect to equal time or shared care because for many people co-parenting in an equal time or shared care arrangement it had been arrived at by agreement (and thus no judicial determination was warranted).
An example however of a decision prior to the amendments which I consider offers comprehensive guidance on the best interests and reasonably practicability of equal time and shared care is Federal Magistrate Ryan (at the time) in T and N [2001] FMCAfam 222. In this decision Her Honour set out the indicia of factors to be examined by a court where a person seeks equal time or shared care as follows:
My view is if you’re considering seeking equal time or shared care, regard should be given to the above in formulating your proposal. Every case is different however and advice from a Brisbane Family Lawyer will assist you to determine what your best case is.
Family law advice
If you have any queries in relation to separation, divorce, de facto relationships, property settlement or child support payments, my firm Hooper Mill Family Lawyers can assist you with practical advice. We are Brisbane Family Lawyers servicing all areas.
How to tell IF you have actually separated and WHEN, most people don’t know!
Separation between de facto partners and married couples
The date of separation is an important one in the context of family law and for de facto relationship law.
The separation date is relevant to issues such as when divorce can be sought, when limitation period might expire, contributions for property settlement and other issues.
What is separation?
I assume most people would think they know whether they are separated or not however surprisingly it is often an issue. This is particularly the case when there is a reason to make it an issue such as when one party alleges a limitation period has expired.
In legal terms a “separation” is more than a physical separation. It involves the breakdown of the consortium vitae which is a fancy Latin way of saying “marital relationship”.
What was said of marital relationship in the case of In the Marriage of Todd No 2 has often been repeated by courts as being correct:
“What comprises the marital relationship for each couple will vary. Marriage involves many elements some or all of which may be present in a particular marriage – elements such as dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of the marriage by both spouses in public and private relationships, and the nurture and support of the children of the marriage.”
Thus the notion of separation occurs when there is a breakdown of the above marital relationship, in a de facto relationship, or marriage.
This means people can be living apart and not separated; or living together and be separated, i.e. “separated under one roof”.
The practicalities of separation
To determine the separation date, three other conditions are necessary. These are:
I suppose you could say considering the above breaking up by email or text is the smart thing to do if you want to be clear about the separation date.
Perhaps it’s better etiquette to have the “it’s not me – it’s you” conversation (did I get that right?); and follow up with a gentle email or text message to confirm the date.
Why is the separation date important?
The main reason why separation date is important is in relation to divorce, the breakdown of a de facto relationship, and limitation periods.
The Family Law Act 1975 replaced the fault based grounds for divorce that existed previously with the one ground, that is, “irretrievable breakdown of the marital relationship”.
This ground for divorce is established by a continuous period of separation of not less than 12 months. Thus separation is necessarily established to obtain divorce.
After divorce has been granted a limitation period for property settlement in marriage operates 12 months after the date of divorce. This means if you get divorced you may not be able to seek property settlement without the permission of the court.
In de facto relationships the limitation period is 2 years after the end of the de facto relationship (date of separation).
Sometime the court will treat contributions people have made to property after separation differently in assessing property settlement. There have been a number of cases in which people have had windfalls such as Gold Lotto wins or inheritance at about the date of separation, or shortly after, that makes the date of separation an issue.
In the context of child support and child support calculator
Section 25 of the Child Support Assessment Act 1989 provides one of the conditions to obtain child support is that the applicant is not living with the other parent as his or her partner on a genuine domestic basis.
Section 9 provides “separation” means “circumstances in which the parties to a marriage are, under the Family Law Act 1975 taken to have separated”. Thus the principles are the same and the date separation occurs is relevant.
The child support calculator or child support estimator link is available in an earlier blog post for anyone wanting to obtain an indication of child support payments payable.
Family law advice
If you have any queries in relation to separation, divorce, de facto relationships, property settlement or child support payments, my firm Hooper Mill Family Lawyers can assist you with practical advice. We are Brisbane Family Lawyers servicing all areas.
Custody of Children during the Christmas Holiday period – Brisbane Family Law Specialists
In the period leading up to Christmas our office routinely receives enquiries from people about “child custody”, “custody rights”, “family law custody” or “child custody laws”.
While these terms haven’t been used in the family law context since 1995[i], and given we are almost 20 years down the track; they’ve remained in the minds of some people presented with parenting issues.
There’s been a change in terminology in family law due to a shift in the context in which the court examines a parenting dispute.-In approaching the exercise of making a parenting order, the court comes from a perspective that while children have rights; parents have responsibilities.
Terms that suggest ownership or right such as “child custody rights” i.e. my right to child custody, are not relevant to the modern Family Court. Further, parents who think in these terms may be inadvertently doing a disservice to the presentation of their case.
So how should I approach Family Law child custody? And what if I don’t want to go to Court?
Whether or not you want, or need, to go to Court the best outcomes for your children (and most likely for you) will be achieved by “child-focused thinking”.
This means framing your proposal for the separated co-parenting arrangements according to the following types of considerations:
Some of the rights children have are to enjoy spending time regularly with both parents, (consistent with what is necessary to keep them safe from harm), have meaningful relationships with both parents and extended family, receive adequate and proper parenting etc.
In my experience not many parents consulting a Brisbane family lawyer would disagree children should not have these rights or that children are “property” such as is suggested by thinking in terms of custody laws.
What about this Christmas – I don’t have parenting orders or a parenting agreement in place?
Some ex partners are difficult (believe me I know).
The best you can do is control what you’re doing. This is an area of law where two wrongs don’t make a right.
Remember you need to be child focused; and you should act “responsibly” for your children. Here are some tips for Christmas holidays negotiations:
I hope anyone taking the time to read this has found it helpful and informative. Have a merry Christmas in 2014; and a Happy New Year in 2015.
Peter Hooper – Hooper Mill Family Lawyers
[i] The Family Law Reform Act 1995 (Cth) replaced part VII of the Family Law Act 1975 (Cth) (“FLA”) and changed the terminology when dealing with children’s matters from “guardianship”, “custody” and “access” to “specific issues”, “residence” and “contact”.
The Family Law Act 1975 has most recently been amended by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) which commenced operation on 1 July 2006. This amending Act changes the terms “residence” and “contact” to become “living with”, “spending time” and “communicating with”.
New Case Note – Grandparents’ Rights – Maldera & Orbel
See Peter Hooper’s latest case note on the decision of MALDERA & ORBEL [2014] Fam CAFC 135; which defines the role of the objects and principles of the Family Law Act when deciding a parenting matter.
https://hooperandmillfamilylawyers.com.au/resources/case-watch-list/
Peter Hooper accredited family law specialist is a Brisbane Family Lawyer and Director of Hooper Mill Family Lawyers, a family law firm in Brisbane practicing exclusively in Family and Relationship Law.
Child Support Calculator
By Peter Hooper, Brisbane Family Lawyer
Most people are familiar with the idea that when parents separate “non-residential” parents may have to pay child support.
What most people don’t know however is how much child support they may be eligible to receive or liable to pay?
Well…keep reading because I can show you exactly how to work this out for yourself, quickly and easily…
The Child Support system
Child support in Australia is determined by an administrative assessment. For those of you young enough to remember, it started with Bob Hawke announcing in the late 1980’s that “By 1990 no Australian child will live in poverty”.
Effectively the legislation took the responsibility for determining how much child support should be paid away from the courts; and created a formula to be administered by the Child Support Agency (now Department of Human Resources).
Child support calculator – the child support formula
What makes up the child support formula then?
The following sets out how child support is calculated using the basic formula in the legislation:
Do you need to be a family law lawyer to work this out?
No you don’t.
All you need to do to estimate the child support you are eligible or liable for is CLICK HERE
The link is to the Department of Human resources child support estimator. The estimator will work out the basic formula for you however there can be circumstances where the basic formula won’t apply and a change of assessment is necessary.
Peter Hooper is an accredited specialist family lawyer in Brisbane.