What is equal shared parental responsibility & what does it mean?

Equal shared parental responsibility means that both parents are to consult each other prior to making decisions concerning the major, long-term issues relating to the child such as education, health, religion and extra-curricular activities. In circumstances where a child has been subjected to or exposed to abuse, neglect or family violence, the Court will not apply the presumption of equal shared parental responsibility. In such cases, the Court may grant sole parental responsibility to one parent, with that parent being responsible for making all decisions concerning the child.

Can I relocate without telling the other parent?

You can generally change your address as long as it does not affect the time that your child spends with the other parent. When there is a minor change to your address you should inform them of your new address and contact number.

If your intended relocation will impact on the other parent’s time with the child, then you will need to obtain the other parent’s consent, regardless of whether there are Court Orders in place or not. If you relocate without consent, the other parent can apply to the Family Court of Australia or Federal Magistrates Court of Australia to seek the return of the child. In the event that you relocate without consent and there are Court Orders in place, you may be in breach of those Court Orders. The Court can apply fines and criminal penalties when there has been contravention of Court Orders.

Is it true that as a parent I am entitled to equal time with my child? If the presumption of equal shared parental responsibility

If the presumption of equal shared parental responsibility applies then the Court must determine if it is in the child’s best interests to spend equal time with both parents. The Court will only make an Order for the child to spend equal time with both parents if it is in the child’s best interests to do so.

A consideration of a child’s best interests includes numerous factors including: if the child has been subject to or exposed to abuse, neglect or family violence, the need to protect a child from psychological harm, views of the child, age of the child, the child’s ability to cope with the arrangement, the nature of the child’s relationship with both parents and each parent’s capacity to meet the child’s needs.

If it has been determined that it is not in a child’s best interests to spend equal time with both parents, then the Court will consider if it is in the child’s best interests to spend significant and substantial time with one of the parents while living with the other parent. A child spends significant time with a parent if they spend time with the parent on school days, weekends, special occasions, school holidays and an inclusion of both parents in the child’s day to day routine.

My partner and I have separated what should we do about the children?

Separation of parents is a traumatic time in the lives of children.  It is important to ensure that a parenting arrangement is put in place at an early, even if that agreement is only to be in place until a final agreement can be reached, to ensure that your children continue to enjoy a relationship with you and the other parent.  It will also provide your children with security and routine as they come to terms with the separation of their parents.

Depending on how your children adapt to the change in their family life, it may be appropriate for you to facilitate your children participating in counselling with a qualified social worker or psychologist.

What is a de facto relationship?

You are in a de facto relationship if you have lived with your partner, in a genuine domestic relationship, for two years or more. De facto relationships include both opposite and same-sex relationships.

If you have lived with your partner for less than two years, you may be able to apply for a property settlement as a de facto, if there is a child of the relationship or you have made a significant financial contribution to the relationship or assets acquired by one or both of the parties during the relationship.

What is the benefit of doing the property division under the Commonwealth legislation?

In March 2009, the Australian Government included financial matters relating to de facto couples as a matter that could be resolved under Commonwealth legislation. The inclusion has provided de facto couples with similar property rights as married couples in the event of a separation.

Prior to this change, a de facto spouse was unable to seek an interest in the superannuation entitlement of their partner, despite the length of their relationship. Additionally, a de facto spouse had no capacity to seek spousal maintenance from their partner. Now, de facto persons can seek an interest in their partner’s superannuation entitlement, known as a “superannuation split”. This is particularly beneficial if your partner has worked outside the home while you have stayed at home to care for the children and, as a consequence, you have accumulated less superannuation.

I have separated from my de facto partner – am I entitled to a property settlement?

A party to a de facto relationship can seek a property settlement in the same way that a party to a married couple is entitled to a property settlement.

The Commonwealth Family Law legislation, applies to de facto relationships that broke down after 1 March, 2009, and where the parties have spent the majority of their relationship residing in Queensland, New South Wales, Victoria, Tasmania, a Territory or Norfolk Island. If your de facto relationship ended prior to 1 March, 2009, or you live outside any of the above listed States or Territories, then your property settlement will be governed by your respective State legislation.

A property settlement under the Commonwealth legislation will require a consideration of the contributions that each party made, from the commencement of the relationship onwards, and the future needs that either party may have, in order to determine the actual division of the property that would be just and fair.

I am separating from my spouse – am I entitled to half of the property?

In any family law property matter there are some initial steps that must be completed prior to determining what division of the matrimonial property is fair and equitable.

Firstly, each party must disclose all of the assets, liabilities and financial resources they hold in their name alone or jointly with any other person. Secondly, we must assess the financial contributions, non-financial contributions and contributions to the care of the family and household made by each party at the commencement of the relationship, during the marriage and since separation. Finally, we need to identify whether one or both parties have any future needs. For example, a smaller income, the primary care of dependent children, or a medical condition that impacts on their earning capacity. Only after these considerations can advice be provided in respect of what division of the matrimonial property is fair and equitable.

If both parties have made equal contributions and have no future needs, then an equal division of the property may be fair and equitable. However, if there have not been equal contributions or a party has greater future needs, then one party may receive a greater division of the matrimonial property than the other party.

My parents gave money to me and I contributed this money to the purchase of assets. What effect will this have?

A contribution by one of the party’s parents may be considered as a financial contribution made by that party. Depending on the type of contribution, when it was made and the impact it had on the parties’ ability to acquire, improve or maintain assets, then you may be able to seek an adjustment in your favour.

Similarly, if you received an inheritance as a beneficiary of an estate then the inheritance you receive will be considered as a contribution by you. However, whether you receive an adjustment in your favour will depend on how the inheritance was used to contribute to the assets and family. If you received the inheritance after separation, then you may be able to have the inheritance excluded from the matrimonial property available for distribution between the parties.

I want to leave our home, what can I take with me?

After separation it is common for one party to move out of the home.  The process of leaving the home can be difficult and stressful.  If you leave the home that it does not mean that you have lost your entitlement and interest in that property or any other assets from the relationship.

When leaving, it is important that you take any personal paperwork with you as well as your personal belongings.  It is recommended that you try to reach an agreement with your partner about the division of the household contents prior to your leaving the home.  If you cannot reach an agreement, it may be appropriate for you to leave the contents in the home until an agreement can be reached.  In this circumstance, you should take an inventory of the contents you wish to keep and the items that you are agreeable with the other party keeping so that this can assist with negotiations.

It is imperative that neither party destroys or damages any items of property.

Do I have to change my surname?

After separation, you may wish to return to using your maiden name.  You can elect to change your name, at any time. However, if you want to change your name prior to obtaining a divorce, you will need to apply to Registry of Births, Deaths and Marriages for a change of name.  If you have obtained a divorce order then you can change your name by providing your original marriage certificate and divorce order to Queensland Transport and other organisations.

You are not obliged to change your name after you have separated or divorce, you can continue to use your married name until you elect to do otherwise.

We already have an informal agreement, why would we need to see a lawyer?

It is a great achievement if parties are able to come to their own agreement regarding parenting and/or property matters. Once you have reached an agreement, you should have the agreement formalised by way of a Consent Order or a Financial Agreement. 

In the event that your agreement is not formalised and one of the parties fails or neglects to uphold the agreement, you do not have the capacity to enforce the agreement.

What happens if the parties agree at Mediation?

Once the parties have been able to reach agreement on either the parenting matters, property matters or both, msl can draft Consent Orders which set out the terms of the agreement.  Once the Consent Orders have been signed by each party, they are filed with the Court.  The Court will make Final Orders in the terms of the Consent Orders if they are satisfied that the proposed Orders are appropriate, in the circumstances.

For more information on family law visit our Expertise pages or contact one of our Brisbane or Gold Coast family lawyers.