FAMILY COURT

THE FAMILY LAW ACT 1975

To see whether your relationship would be viewed by the law (and the Family Court) as being a de facto relationship on separation, you would need to fit the criteria described in Section 4AA of the Family Law Act 1975 (Cth). This section states you are in a de facto relationship if:

You and your partner are not legally married to each other;
You and your partner are not related by family; and
You and your partner have a relationship as a couple living together on a genuine domestic basis.

A de facto relationship is also defined under state and territory legislation in essentially the same terms as above. You might then ask, what does a “genuine domestic basis” actually mean?

The court looks at the following factors:

How long you and your partner have been in the relationship;
If you are living together and for how long;
Whether or not there is a sexual relationship between you and your partner;
Whether or not you and your partner are dependent on each other, evaluated by factors like shared finances (bank accounts, sharing bills etc);
If you own any property with your partner and how you bought that property;
Whether you have registered your relationship in a state or territory;
If you have children with your partner and if you care and support your children together; and
If people in your families, communities, or workplaces know about your relationship.

Not all of the above criteria have to be met for you and your partner to be deemed to be in a de facto relationship. This is particularly important for same-sex relationships because your relationship may not be a traditional one (for example, there may be three of you in the relationship, you may have separate bank accounts, or you may not live together), but you are still in a committed relationship. Your partner could also be married to someone else, but in a de facto relationship with you. There have been cases where a girlfriend of someone who is married to a third party has claimed to be in a de facto relationship.

Regardless of your choices, it’s important that you understand that these factors are what the court will look at when deciding about de facto relationship status.

This means that if you and your partner separate after being in a de facto relationship, you can now apply to the Family Court and/or Federal Circuit Court for orders relating to the separation of your property and parenting orders in relation to your children. You don’t need to have registered your relationship anywhere to have access to these rights. For example, none of my friends registered their relationships, even though many had “weddings” or commitment ceremonies.

Same-sex couples can also apply to the Supreme Court for orders relating to property after separation and you should seek legal advice as to which court is the more appropriate place to file your application. Nowadays, most applications are filed in the Family Court or Federal Circuit Court (which has a family law division).

The end result is that same-sex couples in de facto relationships are viewed the same as married heterosexuals and de facto heterosexuals in the Family Court in parenting and property matters.

Commencing proceedings in the Family Court

Once you have attended mediation and have been issued with a certificate, then you may instruct a lawyer to file what’s called an Initiating Application in the Family Court or Federal Circuit Court.

Both courts have the jurisdiction to hear property and parenting matters. More complex parenting (in my experience this includes same-sex matters) and property matters are normally filed in the Family Court.

In deciding what orders to make in relation to a child of lesbian parents, the law looks at the same factors of those for a child of opposite sex parents. This is referred to as “the best interest of the child”.[i]

It is generally irrelevant if you are the birth mother, the biological mother, the genetic mother, or the partner of the woman who gave birth to the child. It does not necessarily matter if you are not on the birth certificate. It also does not matter if the child calls you by your first name or does not have your last name. If you are a legal parent, then you have standing to file an application for parenting orders.

You will also have standing to file an Initiating Application seeking parenting orders, if you are a person “concerned with the care, welfare and development of the child” which is discussed later in this chapter.

Considerations of the Family Court

The primary considerations of the Family Court in looking at what is best for a child are:

The benefit to the children of having a meaningful relationship with both parents;
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence; and
The need to protect children from harm (this consideration is given the most weight).

Other considerations of the Family Court:

The child’s views and factors that might affect those views, such as the child’s maturity and level of understanding;
The child’s relationship with each parent and other people, including grandparents and other relatives;
The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent;
The likely effect on the child of changed circumstances, including separation from a parent or person with whom the child has been living, including a grandparent or other relatives;
The practical difficulty and expense of a child spending time with and communicating with a parent;
Each parent’s ability (and that of any other person) to provide for the child’s needs;
The maturity, sex, lifestyle, and background of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
The right of an Aboriginal and Torres Strait Islander child to enjoy his or her culture and the impact a proposed parenting order may have on that right;
The attitude of each parent to the child and to the responsibilities of parenthood;
Any family violence involving the child or a member of the child’s family;
Any family violence order that applies to the child or a member of the child’s family, if:
- the order is a final order; or
- the making of the order was contested by a person;
Whether it would be preferable to make an order that would be least likely to lead to further court applications and hearings; and
Any other fact or circumstance that the court thinks is relevant.[ii]

The court must consider the extent to which each parent has or has not previously met their parental responsibilities, in particular:

Taken the opportunity to
- participate in decision-making about major long-term issues about the child; and
- spend time with the child;
Communicated with the child, and has
- met their obligations to maintain the child; and
- facilitated (or not) the other parent’s involvement in these aspects of the child’s life.[iii]

The Family Court will consider events and circumstances since you and your ex-partner separated.

Parental responsibility

Both parents are treated equally in the Family Court as parents of the child (assuming you are the legal parent, i.e., you were in a de facto relationship at the time of birth and you consented to the insemination procedure, or your name is on the adoption papers).

Each parent has parental responsibility for their children until they turn 18. Parental responsibility for your child is not affected by changes in your relationship, for example, if you separate from your partner or enter a new relationship.

Parental responsibility means all the duties, powers, responsibilities and authority that, by law, parents have in relation their children.[iv] This means who has the power to decide what school the child will go to, what religion she will be raised in and what medical treatment she will receive, etc.

The Family Court makes orders about parental responsibilities only if the parents cannot agree on the arrangements for their children. These are called parenting orders. The Family Court can also approve and make Consent Orders (as discussed above) to reflect an agreement reached between parties at any time during the court process.

Person concerned with the care, welfare and development of the child

A parent or grandparent of the child, or any other person who is concerned with “the care, welfare and development of the child”, can also apply to the Family Court for parenting orders.[v] This can include a de facto partner, a known donor, or other relatives such as aunts, uncles and extended family members.

A grandparent may apply for orders to see their grandchild, in circumstances where they have limited or no contact with the child’s parent, or where the child’s primary carer will not allow the grandparent time with the child, and the grandparent’s only recourse to see the child is to get orders from the Court.

Independent children's lawyer

If there are allegations of abuse, high levels of conflict, mental health issues, or other serious issues, then an Independent Children’s Lawyer (“ICL”) may be appointed by the court to represent the child’s best interests.

The court can appoint an ICL under Section 68L of the Family Law Act 1975 (Cth), or on the application of a parent, a child, an organisation or person concerned with the welfare of the children, to represent and promote the best interests of a child in family law proceedings.

An ICL considers the views of the child and provides the court’s with their opinion as to what arrangements may be in the child’s best interests. The presiding judge can facilitate the child participating in the proceedings depending on the child’s age and maturity, although this is usually limited to their involvement in what is known as the “Family Report process’.

Family report

In addition to an ICL, the Court may arrange for a Family Report under Section 11A of the Family Law Act 1975. This report is written by a family consultant (often a counsellor or psychologist), or an outside appointed expert (psychologist or psychiatrist), who provides an independent assessment of the issues in the case.

The Family Report assists the judge who hears the matter in making decisions about arrangements for the children, given the judge does not speak separately to the parties or the children. The report writer meets with both parents and the children (and any other relevant person) for several hours to assess the children’s attachment to each parent and the relationships between the parties involved in the family and the dispute.

Parenting orders

Parenting orders can be obtained by the Family Court by consent or by an application. Consent Orders mean that you and your ex-partner agree on the orders. If you and your ex-partner can’t agree on the orders, then the court will make parenting orders after hearing the evidence in your case. Sometimes the children’s views are taken into account, again depending on their age and maturity.

Lesbians can also enter into parenting orders with their known donor.

Parenting orders can deal with a variety of issues and can include the same issues as discussed in a Parenting Plan or Donor Agreement. You can ask the court to make parenting orders on a limited range of issues or a large number of issues.

You will need a lawyer to draft the parenting orders as a lawyer will need to sign the documents stating that you have received legal advice. The average cost of a lawyer to draft parenting orders ranges from around $3,000 upwards.

Some examples of what parenting orders might deal with:

Where a child lives;
Who a child will spend time with, where, and how often;
How a child will communicate with each parent and/or donor, by what means, and how often;
What religion the child is to be raised in;
Who has parental responsibility for a child, i.e. birth mother, partner, donor;
How parents and/or donor are to communicate with each other about the child;
Where and which school a child will go to;
Who will provide financial assistance for the child’s expenses;
Whether a child can travel overseas or move away; and
Whether one or both parents can move away with the child.

Some parenting orders deal with more specific issues such as who the child cannot spend time with, what hair cut the child has, and what places the child can go to. Though these types of orders can be very difficult to enforce.

Parenting orders stay in place until further order of the court, in cases where there is a significant change in circumstances of one party or the child (e.g. neglect, abuse, relocation or child’s wishes).

The benefit of having parenting orders is that it prevents misunderstandings you and your ex-partner may have as well as any attempt by either of you to change the agreement if your own circumstances change. Parenting orders also provide security (the orders are legally binding); if your ex-partner breaches an order, you can apply to the court to answer the breach. This is known as a Contravention Application. If the breach is proved, the court can impose a penalty on the breaching party, such as a fine, make up time with the other parent, or in extreme cases, jail time (which can include a criminal conviction).

Dividing your property

Many couples are able to come to an agreement about how their assets are to be divided without needing to ask the court to decide. If you are able to do this, it is a good idea to speak to a lawyer about the possibility of registering your agreement with the Family Court in the form of Consent Orders. This will mean that neither you nor your ex-partner can change your mind at a later date and ask for more of the assets. Consent Orders usually mean that you are exempted from paying stamp duty if any properties are sold or transferred.

Another option if you don’t want to go through the court is a Financial Agreement. This can be done before moving in together, during the relationship, or after separation. You should speak to a lawyer if you want to make a Financial Agreement, because both you and your partner must receive independent legal advice and the agreement must comply with certain formal requirements in order to be binding.

Before the court can determine your financial dispute (if there are no children), you must provide evidence to satisfy the court of all of the following:

You were in a genuine de facto relationship with your former partner which has broken down;
You meet one of the following four gateway criteria:
1. The period for the de facto relationship is at least two years;
2. There is a child in the de facto relationship;
3. The relationship is or was registered under a prescribed law of a state or territory;
4. Significant contributions were being made by one party and the failure to issue an order would result in a serious injustice.
You have a geographical connection to a participating jurisdiction;
Your relationship broke down after 1 March 2009 (or after 1 July 2010 if you have a geographical connection to South Australia only), although you may be able to apply to the courts if your relationship broke down prior to the date applicable to your state.[vi]

Financial contributions

For the court to decide how your property will be divided, it will consider the following:

What you and your ex-partner owned before your relationship commenced;
The net value of your current assets, which includes the value of any property such as houses, shares, boats, cars, motorbikes, artwork, or superannuation;
The contributions made by you and your ex-partner during your relationship. These may include:

Direct financial contributions

(e.g. salary, contributions to purchase to a property, or improvements to properties)

Indirect financial contributions

(e.g. gifts and inheritances from relatives)

Non-financial contributions

(e.g. DIY renovations and contributions to the welfare of the family, caring for children, or domestic duties like washing and other household chores).

Your future needs

including considerations such as who will have the care of any children, your relative ages and earning capacity, and any financial resources available (income from a trust or payments made on your behalf from a family member) to you or your ex-partner.

What orders can the court make

Once the court has decided what proportion of the assets should be given to each party, it can make orders about how this is to occur. For example, the court may order that:

Assets such as the family home be sold and divided in a particular manner (e.g. the home you shared with your ex-partner be sold, and the net proceeds of sale be divided into a specific share and paid to you in that share);
The ownership of assets be transferred into one person’s name (e.g. the home you shared with your ex-partner that was in joint names, be transferred to just you);
Ongoing maintenance be paid (e.g. you pay your ex-partner spousal maintenance and/or child support for the children – although child support applications in the court are infrequently made); and/or
Superannuation funds be split (e.g. your ex-partner has to transfer some of her superannuation into your superannuation fund).

Superannuation held by you and your ex-partner can be split by agreement or by a court order.[vii]

If your ex-partner earns significantly more than you and has been supporting you, then you may be entitled to make an application for your ex-partner to pay you spousal maintenance for a period of time.

Summary of Main Points:

If you separate, seek legal advice before you act.
You can make a Parenting Plan with your ex-partner if you can both agree outside of court on the terms regarding property and children; however, this is not legally binding.
You can file an Application for Consent Orders in court to have your parenting agreements be legally binding.
In most cases you must go to mediation before filing in the Family Court, which can take time if you don’t use a private mediator/lawyer.
The Family Court has a list of considerations when deciding parenting arrangements for separated couples, the primary ones being sustaining meaningful relationships between the child and both parents and the child’s basic safety and well-being.
Both lesbian parents, regardless of who gave birth, are treated as equals and both are legally responsible for their children until the children reach age 18.
A “person concerned with the care, welfare, and development of the child”, like a grandparent, known donor, aunt, or de facto partner, can also file an application for parenting orders with the court.
If the children’s safety is in question, the court may appoint a separate lawyer for them.
Parenting orders, which can be consensual or court-ordered, contain all practical details about the child’s life after separation.
When dividing your property, you can file your agreement in the court as Consent Orders or enter into a Binding Financial
Agreement, which can happen before moving in, during the relationship, or after separation.

Footnotes

[i] s 60CC of the Family Law Act 1975 (Cth); Federal Circuit Court of Australia: Parenting cases – the best interest of the child (May 2016), viewed 4 October 2016, http://www.familylawcourts.gov.au/wps/wcm/connect/FLC/Home/Family+Law+Principles/Parenting+cases+%E2%80%93+the+best+interests+of+the+child/

[ii] s 60CC Family Law Act 1975 (Cth)

[iii] s 60CC Family Law Act 1975 (Cth)

[iv] See ss 61B to 61DB of the Family Law Act 1975 (Cth) for more details

[v] s 63 of the Family Law Act 1975 (Cth)

[vi] s 90RD Family Law Act 1975 (Cth)

[vii] See PT VIIIB Family Law Act 1975 (Cth)

Note to readers: This information is intended as a guide to the law and should not be used as a substitute for legal advice. While every effort has been made to ensure that the information contained here is as up to date and accurate as possible, the law is complex and constantly changing (particularly relating to same-sex parenting) and readers are advised to seek legal advice in relation to their situation.

If you need legal advice, please contact Nicole Evans from Nicole Evans Lawyers at nevans@nelawyers.com.au.