Many individuals now plan to have children on their own without a partner.
This means that the traditional make up of a family is no longer clear cut and the law has to keep up with significant social and cultural changes in society making the definition of parents and families so much more complex.
Many parents who use formal or informal sperm donors or conceive a child outside of a married or de-facto relationship, want to know whether sperm donors have any parental rights once their child is born.
There are a number of relevant laws in place in New South Wales, but in summary a sperm donor is presumed to not be a parent of a child unless married or in a de-facto relationship with the mother at the time of conception.… Read More
When married or de-facto parties with children separate they should try to enter into practical and child focused arrangements between themselves in regard to the care and welfare of their children.
The Family Law Act 1975 governs all family law matters in Australia.
The law states that parenting matters must always consider the best interests of the child as the paramount consideration. It must also ensure that children are protected from physical or psychological harm from being exposed to abuse, neglect or family violence.
Parents do not actually have rights over children, but rather they have “parental responsibilities”. This incorporates decision making by parents as to major long term decisions such as who children are to live with, what religion they may practice, and where they are to go to school for example.… Read More
When a marriage breaks down, it is not automatic that a property settlement occurs under the provisions under the Family Law Act.
In the recent case of Higgins, which was before the Family Court in 2018, the questions arose as to whether or not a wife was entitled to a division of property under the Family Law Act.
The facts of this case were, the husband was aged 76 years, the wife was aged 43 years.
The parties met in 2006, at this time the wife was working as an escort, the husband became her client. The parties married in 2012 and separated in 2015.… Read More
Not all couples wish to marry, but commit themselves to each other. The term in which a couple who are committed and live in a domestic relationship together is referred to as a “de facto relationship”. In such relationships sometimes it is hard to pinpoint when the relationship commenced and when such relationship ended.
Such questions arose in the case of Weldon and Levitt (2017).
Short facts of this matter were as follows:
… Read More
- Relationship between the parties was a relationship for approximately 12 or so years.
- The parties had two children together.
- The parties held no joint accounts.
- With the exception of 12 months the parties resided in separate residences, when residing in separate residences neither party shared expenses for each other’s households.
The Family Law Act in Australia determines whether couples are in de-facto relationships for the purpose of adjusting their property interests upon the breakdown of such relationships.
It is possible to be married and to have a partner who meets the definition of being a de-facto partner.
The court applies “elements” to determine whether, having regard to all the circumstances of the relationship that a couple “lived together on a genuine domestic basis”.
For example the court will look at aspects of the relationship such as:
… Read More
- The length of the relationship;
- The nature and extent of the common residence;
- The financial relationship between the parties;
- Whether there was a sexual relationship;
- Whether the parties acquired property and how they improved or used those property assets during the relationship; and
- Whether there was a mutual commitment to a shared life.
The Family Law Act 1975 deals with adjusting the assets and liabilities of separated married and de-facto couples. A property settlement is not a “right”, but rather the court must consider if it is fair and reasonable in all the circumstances for a property settlement to take place at all.
If a property settlement is necessary, the court must consider what actually constitutes the assets and liabilities of the parties. Often the issue of liabilities becomes a vexed issue. For instance, is money provided by parents a gift or a loan which must be repaid? If it is deemed to be a gift was it made to one or both parties? … Read More
When parties with children separate they should try to enter into practical and child focused arrangements between themselves in regard to the care and welfare of their children. Arrangements should be structured and practical but also allow some flexibility. Children have a right to a meaningful relationship with both parents and any parenting arrangements should reflect this principle.
For some parents, where there is a disagreement in respect of future parenting arrangements, the Family Law Act requires them to attend family dispute resolution, which is also known as “mediation” before embarking on making an application in court for parenting orders. In Tamworth, mediation takes place at “Centacare”.… Read More
Married couples and de-facto parties may seek to have their property divided when they go their separate ways.
If this is to occur, the Family Court must consider whether it is just and equitable for the assets of separated parties to be adjusted. There is no automatic “right” to a property settlement.
The recent decision of Chancellor & McCoy  FamCAFC256 delivered in the full Court of the Family Court reinforces this principle.
The facts of that case were as follows:
… Read More
- The parties lived together in a 27 year same sex de-facto relationship;
- The parties lived in homes owned solely by one party with a small amount of money paid weekly to the other party for her occupation of the homes;
- The parties were of similar age and both had worked full time;
- There was no intermingling of finances;
- There was no joint bank account;
- Each party acquired property in their sole names;
- Each party was responsible for their own debts;
- Each party could use their wages as they chose;
- Neither party made provision for the other in their Wills or life insurance policies.
As the holidays are upon us it is worthwhile remembering that for separated parents, the Family Law Act states that both parents have “equal shared parental responsibility” of their children, until such time that a court says otherwise.
“Equal shared parental responsibility” relates to parental responsibilities of children. It means that parents must make joint decisions about any major or long-term issues affecting their children. For instance where a child lives, and where they go to school, both constitute examples of long-term decision making. By law, both parents hold equal shared parental responsibility of their children.
There are some rare circumstances where one parent has sole parental responsibility for children however an order of the court would need to be made which effectively removes parental responsibility from the other parent.… Read More
When marriages or de-facto relationships come to an end, it is suggested that parties finalise the financial and property matters between them.
The Family Court can make legally enforceable orders in respect of dividing the assets and liabilities of married and de-facto couples. There are also benefits of entering into orders including stamp duty exemptions and capital gains tax rollover relief when assets are transferred between parties.
The Court initially looks at the value of the parties’ assets and liabilities and then assesses the contributions made by the parties to the acquisition, maintenance and or improvement to those assets throughout the relationship.… Read More