FAQs Archive - Westminster Lawyers

Q: My partner and I have never been married. What are my rights and obligations?

If you were in a relationship which meets the criteria of a de facto relationship (as set out in section 4AA of the Family Law Act), there are provisions in the Act which sets out what can occur upon the breakdown of a de facto relationship. This applies to relationships between de facto partners of the same and opposite sex. The same legal principles that apply to financial settlements between parties to a marriage are applied to settlements between former de facto partners. Just as with married people, superannuation can be split between de facto partners following their relationship breakdown. The Court can also order that a de facto partner has to pay spousal maintenance to their ex-partner. Parenting matters are also considered in the same way regardless of whether the parents of the child were married or in a de facto relationship.

Q: Am I entitled to maintenance/do I have to pay maintenance and if so, for how long?

Spousal or de facto periodic maintenance may be paid when one party has the financial capacity to pay and when the other party is unable to financially support themselves adequately. In determining whether or not periodic maintenance is paid, each party's financial income and expenditure are assessed.

Q: Do I have to attend family dispute resolution?

The law requires separated or separating families who have a dispute about parenting arrangements to attend Family Dispute Resolution. The parties must make a genuine effort to resolve their dispute before they can make an application to a Court for orders in relation to their children. The Court also has pre-action procedures which must be followed before someone issues a Court Application. The requirement to attend Family Dispute Resolution does not apply in certain circumstances, such as where there is urgency, or in cases involving child abuse or violence. If a Family Dispute Resolution Practitioner does not consider it appropriate for a matter to be mediated, they can issue a Section 60I Certificate (to enable a parent to issue a Court Application) without mediation taking place.

Q: What is family dispute resolution?

This is a process where an independent third party (known as a Family Dispute Resolution Practitioner) assists parties who are going through separation or making arrangements for the care of their children to reach agreement. The matters covered as part of Family Dispute Resolution can include arrangements for the person or persons with whom a child is to live, the person or persons with whom a child is to spend time and communicate, and arrangements for the allocation of decision-making responsibility in relation to children.

Q: Can I relocate interstate or overseas with my children?

If there are no existing Court Orders in place, you can move interstate or overseas if the other parent consents to you relocating. If the other parent does not consent to the move you should seek a Court Order allowing you to move. If you relocate without consent or a Court Order, the Court may order you to return the children back to where you were previously living.

Q: How does the Court decide where/with whom my children will live?

The Court considers a wide range of discretionary factors in deciding where the children will live. The priority of the Court is always to ensure that the best interests of the children are met. The Court may also order independent evidence from a Psychologist or Counsellor to assist them in determining which care arrangements will promote the best interests of the children.

Q: Can my son/daughter receive child support now that they are over the age of 18/finished school?

It is possible to seek payments for children who are over the age of 18 under limited circumstances. This is known as Adult Child Maintenance. Examples of when you might be able to obtain adult child maintenance for a child is if they are engaged in tertiary study or if maintenance is necessary because of a mental or physical disability of the child. If the adult child is engaged in study, the maintenance must be necessary to enable the child to complete his or her education. Adult Child Maintenance is not dealt with by Services Australia (Child Support) and orders would need to be sought from the Federal Circuit and Family Court of Australia. It is however possible to obtain such Orders by agreement. The Court would need evidence of the child's financial circumstances and income in support of an application. It would also consider the contribution that each of the parties should be making to the child.

Q: How much child support will I receive or have to pay and for how long?

The Child Support Agency, known as Services Australia (Child Support), calculates the amount of child support payable by one parent to the other using a formula which takes into account both parents' incomes, the percentage of care of the child(ren) each parent has and the cost of living depending on the age of the child(ren). You can obtain an estimate and further information via the Child Support Agency website . Child Support is ordinarily payable until the youngest child is 18 years of age. If the child is at school in the year they turn 18, you can apply to the Agency so that payments continue until the end of the school year.

Q: Are financial agreements binding?

Financial Agreements are binding and enforceable if they are made in strict accordance with the procedures laid down in the Family Law Act. Financial Agreements can be made in a number of different situations as follows: Before a de facto relationship (Section 90UB Agreement); During a de facto relationship (Section 90UC Agreement); After a de facto relationship (Section 90UD Agreement); Before a marriage (Section 90B Agreement); During a marriage, regardless of whether separation has occurred or not (Section 90C Agreement); After a divorce (Section 90D Agreement). Financial agreements stipulate how property and financial resources are to be divided upon separation. They also deal with the maintenance of either party. They must be in writing and signed by the parties. Each party must have independent legal advice prior to signing. Financial agreements can be terminated by written consent or set aside by a Court.

Q: Is superannuation taken into account in a property settlement?

Yes. Superannuation is treated in a similar way to other property. The value of each party’s superannuation interests is ascertained, contributions to it are assessed, and an adjustment can be made in favour of one party or the other taking into account matters such as the parties’ earning capacities, age and health. Superannuation belonging to one party can be transferred to the other pursuant to a court order; or a Financial Agreement.