Can I change a child's name without permission from the other party?

No. If the parties cannot agree to a name change then court action is necessary.  The court would look at the following factors:

·         The best interests of the child

·         Confusion of identity

·         Short and long-term effects of a name change

·         Effect on the child's relationship with the party not seeking the name change

·         Embarrassment to the child (eg. If surname is different from mother's)

Sometimes parties agree on a hyphenated surname as a compromise.

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What is a family law consultant?

Family consultants are social workers or psychologists employed or subcontracted by the Court to assist parties after Court proceedings have commenced.  Their role is to provide a report to the Court after meeting with parties.  It's important to be aware that there is no 'confidentiality' so what you say to them may be used in Court.  The Court is not bound by the report but they are generally of valuable assistance to the Court in reaching a decision.

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If I separate, is there a time limit to make a claim for a property settlement?

Yes, the deadline for issuing a property (or maintenance) application is 12 months for married parties after a Divorce Order has taken effect (except by leave of the Court or the agreement of the other party).  A party to a de facto relationships may apply for a property (and maintenance Order) only if the Application is made within 2 years after the end of the relationship.  If you are outside these timelines, we recommend you obtain legal advice.

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Can you make a claim for property settlement if your de facto relationship is less than 2 years?

It is possible to make a claim for a property settlement for de facto couples (including same sex couples) even if the cohabitation is for less than 2 years.  You would need to have a child of the relationship or have made “substantial contributions” to any property of the parties.  You would also need to demonstrate that if the Court won’t allow your case to be heard, you would suffer serious injustice.

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What happens if you break a Parenting Order?

If the Court finds you are guilty of breaking a Parenting Order (without reasonable excuse) the following penalties may apply:

1.    The original order may be varied.

2.    You may be ordered to attend a post separation parenting program.

3.    You may be required to enter into a bond.

4.    You may be ordered to pay the other party legal costs.

5.    You may be ordered to pay compensation for reasonable expenses lost as a result of the contravention.

6.    You may be required to participate in community service.

 

 

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How do I know if my relationship constitutes a 'De Facto Relationship'?

A 'de facto relationship' includes same sex partners and can exist if a partner is married to someone else or is in another de facto relationship. The relevant legislation defines partners as being in a de facto relationship if they are not married or related to each other, and having regard to all the circumstances of their relationship, living together on a genuine domestic basis.

Those circumstances may include:

·        the length of the relationship

·        the nature and extent of their common residence

·        whether a sexual relationship exists

·        degree of financial dependence and support

·        ownership, use and acquisition of property

·        degree of mutual commitment to a shared life

·        the care and support of children

·        reputation and public aspects of the relationship

·        whether the relationship was registered in a State or Territory.

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What does Roll-Over Relief mean with respect to Capital Gains Tax?

Roll-over relief is available where an asset is transferred under property orders or a Financial Agreement:
1. Between spouses or
2. From a trustee or company to a spouse.

"Roll-over relief" means the deferral of the Capital Gains Tax liability until the transferee (the person retaining the property) eventually disposes of the asset.

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If I separate is there a time limit to make a claim for a property settlement?

Yes, the deadline for issuing a property (or maintenance) application is 12 months for married parties after a Divorce Order has taken effect (except by leave of the Court or the agreement of the other party).  A party to a de facto relationship may apply for a property (and maintenance Order) only if the Application is made within 2 years after the end of the relationship.  If you are outside these timelines, we recommend you obtain legal advice.

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What happens if you are made redundant?

In these uncertain economic times it’s important to be mindful of the potential impact of a redundancy or a possible redundancy on a property settlement.  It’s important to fully disclose to your lawyer if you have applied for a redundancy even if it’s after a separation.  It may be relevant in the property settlement negotiations.

A redundancy payment received after separation (but before a family law settlement) and applied to a new property is likely to be “added back” into the matrimonial asset pool, so we recommend you finalise your property settlement as soon as possible after a separation.

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Spousal Maintenance under the Family Law Act

Under the Family Law Act a Court may make such order that it considers “proper” for the provision of maintenance.  This means that the Court has a discretion both as to whether maintenance should be ordered and, if so, as to how much should be ordered.  It is a discretionary power.

Under the Act, a party to a marriage is liable to maintain another party to the extent that the first party is reasonably able to do so and the second party is unable to support him or herself adequately:

a.     Due to having care or control of a child of the marriage under the age of 18;

b.     Due to age or physical or mental incapacity for appropriate gainful employment; or

c.     For any other adequate reason.

Having regard to a list of factors, including:

1.     The age and health of the parties;

2.     Whether either party has the care or control of a child of the marriage under the age of 18;

3.     Commitments of each party necessary to support him or herself and a child that the party has a duty to maintain;

4.     A standard of living that in all the circumstances is reasonable;

5.     The extent to which the party whose maintenance is under consideration has contributed to the income earning capacity, property and financial resources of the other party; and

6.     The duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration.

Case law provides that the term “adequately” is not a fixed standard.  It is not subsistence level.  An applicant is not entitled to live at a level of consideration luxury just because the other party is very wealthy.  Where possible, both spouses should continue to live after separation at the level that they previously enjoyed. 

The Court would assesses "earning capacity".  The applicant needs to provide evidence as to the attempts to find employment.  The Court may find that the applicant has earning capacity, but it may find that the applicant’s earning capacity is less than the income received.  It would then need to assess whether the applicant has the capacity to support him or herself adequately.

When a Court determines capacity to pay maintenance, it will take into account income, property and financial resources of that party.  It may be necessary to show that the income of that party does not exceed that part's reasonable expenses in order to show that there is no capacity to pay maintenance. There is no mathematical formula and the Court's power is discretionary. 

Please do not hesitate to contact your Nevett Ford representative with any questions about this article or Family law matters.

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My partner and I are separating and I want to take the kids overseas, what do I need to do?

• To obtain a child’s passport, written consent is required from each person who has parental responsibility for the child (usually both parents).
  
• If you are not able to obtain the other party’s written consent you need to apply to the Court seeking permission to travel internationally (this is so, even if you have a Court Order for sole parental responsibility) as the Passport Office has specific requirements.
  
• If you wish to prevent the other party taking a child overseas (if they have the child’s passport) you will need to make an Application to Court seeking an Order preventing the child leaving Australia.  This is called an “Airport Watch Order”.
  
• Once you have an Airport Watch Order in place, if you agree in the future for the child to travel overseas you need to apply to the Court before you propose to travel and have the Airport Watch Order removed.
  
• Any Court Applications regarding overseas travel need to be supported by Affidavit material setting out various details of the proposed trip, the purpose of the trip and other relevant matters.
  
• If you wish to prevent a child being removed from Australia (if they do not yet have a passport) you can make an Application to Court preventing a passport being issued and preventing the child from leaving Australia.
  
• If you fear that the other party may attempt to apply for an Australian passport without proper legal consent you can lodged a “Child Alert Request” at any Australian Passport Office.  You will then be notified of any passport application for the child.
  
• Special caution needs to be exercised where the children are eligible or where they already have a foreign passport.  A Child Alert does not prevent a child leaving Australia on a valid Australian or foreign passport.  It is recommended that you contact the embassy of the relevant country if you think a passport may be issued by another country.
  
• You should seek legal advice if you have a query about travelling internationally with children or considering relocating overseas with children. 

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