FAQ's - Family

1.  Can a step-parent be ordered to support a child?

Yes.  In making such an order the court is required to have regard to the length and circumstances of the relationship with the step-parent, the previous arrangement which existed for the maintenance of the child, and any special circumstances which would result in injustice or undue hardship to anyone if not taken into account.

2.  Can I get a divorce if I have no idea where my husband/wife is?

Yes.  There are 3 main avenues to serve a missing person with proceedings depending upon the circumstances:

  • Obtain from the court an order requiring a Commonwealth department (such as Centrelink) to divulge to the court the whereabouts of the person;
  • Obtain an order that personal service be dispensed with; or
  • Obtain an order for substituted service (i.e., upon another individual).

3.  Does the 12 month separation period necessary to apply for divorce start from the date the husband or wife moved out of home?

Only if that is the date of separation.  If you can demonstrate that a period of separation occurred while you were living under one roof such period can be counted.

4.  Do I have to go to court when my divorce is listed?

Not if there are no children under the age of 18 involved or there is a joint aplication for divorce.  However, the Divorce will not be granted if the Court cannot be satisfied on the application that adequate arrangements have been made for children.

5.  Does equal shared parental responsibility mean that the child must share their time equally with each parent?

No.  In making arrangements for a child the Family Law Act gives paramount importance to the child's best interests and contains a presumption that it is in the child's best interest for the parents to have equal shared parental responsibility.  This means that parties must consult each other and make a genuine effort to reach a joint decision about long term issues such as education, medical procedures and religion.  The primary consideration in determining the best interests of the child are that the child will benefit from a meaningful relationship with both parents and the child will be protected from harm. 

The Court is required to consider whether spending equal time with each parent is in the child's best interest and reasonably practicable in the circumstances.  If not, the alternative is substantial and significant time for the party who does not live with the child (i.e. not just alternative weekends). 

6.  How does the court work out what is in a child's best interest?

By applying the facts of the case against criteria set out in Section 60CC of the Family Law Act including:

  • the capacity of each parent to encourage a relationship with the other parent,
  • the practical difficulty and expense of spending time with a parent; or
  • the likely effect of any changes in the child's circumstances.

In more difficult cases it calls upon Family Consultants and other independent experts to report and/or appoints an independent lawyer for the child.

7.  Can a person other than a parent obtain a parenting order?

Yes, a grandparent or any other person concerned with the child's care, welfare and development.

8.  Is there a chance of claiming a property adjustment if the statutory time limit has expired?

Yes, you can apply for leave which involves satisfying the Court that hardship would be caused to a party or child if leave was not granted or, in the case of maintenance proceedings, that the party applying would have been unable to support him/herself without a pension at the time when he/she could have applied.

9.  Can I re-open a property case on the basis of information regarding my spouse's financial affairs which has been discovered since settling?

Possibly.  Suppression of evidence is a ground which may convince the Court to vary an existing an order.

10.  Why do I have to leave the house?

It is a practical matter.  There is no rule about which party leaves.  It is usually convenient for the party with the primary care of children to remain in the relationship home until permanent arrangements are made.  The decision to leave or stay does not affect parenting or property rights.

11.  Should I obtain market valuation of assets at the time of separation?

It would probably serve no purpose unless you have improved the property since separation and wish to quantify the value of the improvements.  The relevant time for values is "NOW" regardless of when separation occurred.

12.  Can I use my household contents insurance cover level for the value?

No, that is normally the estimated cost to replace.  Market value is required.

13.  He/she is living in the matrimonial home.  Why do I have to pay the home loan?

You don't unless, as is usual, you are a joint borrower with obligations to the lender who can look to both of you under the loan agreement.  You may be able to negotiate with the other party, however, to pay a reduced amount (i.e., less than half) as you have had to pay for alternative accommodation.

14.  Will the children have to go to court?

Hardly ever.  Evidence about them is normally provided by their parents, Family Consultants, other experts and Independent Children's Lawyers.

If you would like to find out how Quinn & Scattini can help you, please call us on 1800 999 LAW (1800 999 529), or email us at mail@quinnscattini.com.au