Are You Considering Family Separation in Australia?
A separation in your family. What does it mean for you?
Have you clearly thought it through?
This could be one of the most traumatic experiences a family will face.
Family Separation can be devastating for everyone involved.
How well you handle a separation will impact on how well you and your family cope now and in the future.
Are the traumas and conflict that you are now facing so great that they cannot be resolved?
Are there drug or alcohol abuse issues? Is there family violence in your relationship or between family members?
There may be issues that cannot be resolved and the only solution is to remove yourself from the impact on, not only your life but the lives of your children, your friends, and associates. There may be no solution to such problems and Family Separation from the cause may be the only solution.
WHAT ARE THE ISSUES THAT CAN BE RESOLVED? WOULD A RESOLUTION BE MORE BENEFICIAL IN THE LONG TERM THAN A DISRUPTION TO YOUR FAMILY, CHILDREN, FRIENDS, AND ASSOCIATES?
Who can help to solve if you really want Family Separation?
Have you considered counseling either for yourself or jointly with your partner? Counselors can help you work through your problems. You can find qualified counselors in private practice as well as in government and community-based organizations. I have provided details of this in the additional help information section of our A to Z of Family Law.
Counseling works best if you and your partner attend sessions of your own free will. However, if you and your partner go to the Family Court, you may be ordered to attend counseling before a decision is made by the Court.
If counseling does not prevent your relationship from breaking down, it can still help with resolving emotional issues that result from a separation. It is a good idea to shop around to find a counselor with whom you feel comfortable and confident. There are many counseling organizations available to you. A simple internet search will provide links to many counselors and psychologists who engage in family counseling both privately and through various government and non-government organizations.
If Family Separation is inevitable, what are the decisions you may need to make?
It is necessary to give consideration to the financial consequences of remaining in the relationship or separating from the relationship. Seek advice from a financial adviser.
Work out a budget setting out the expenses you will need to cover and that is required for your day-to-day living and other expenses. There are expenses not only for yourself but for your children, their schooling, medical and otherwise.
What are your financial needs?
You will need to consider not only the financial needs for yourself but the financial needs of your partner and children that you may be responsible for in either the short or the long term should you separate and live separately and apart. You will need to give consideration as to how you will provide for those needs.
What arrangements should I make for my children?
Are you to remain in the relationship home with the children and is your partner willing to leave the premises? You must bear in mind that the Court will not force someone to leave their own home unless there are real issues involving the family where children and the parties themselves are being affected by the emotions and the stresses involved in living together.
The Court will only intervene if such emotional stresses reach a peak whereby the parties or the children are suffering from depression and are receiving medical care. The Court will not force someone out of their own home unless it is in the best interests of all concerned that someone should leave.
The Court when giving consideration to this would ascertain who is the best person to leave the home. Who would be least affected by such a move:
- If your partner does not move away from the home, are you in a position to move to other premises?
- Do you have the financial means to meet the rent obligations of other premises for yourself and your children, if you wish the children to be with you?
- Are the premises suitable for the children?
- Will the children be affected by the move if they move out of the home with you?
If you cannot resolve these issues in counseling or if counseling is not available to you, seek legal advice and see what your legal position would be in such circumstances.
Is there family violence in your relationship?
Are the stresses in your life caused by family violence, drugs, or alcohol abuse by your partner?
Family violence takes many forms. It is not necessarily verbal or physical violence. Many forms of violence are considered family violence under the legislation:
- It could be withholding financial support;
- Preventing you from socializing with your friends and associates;
- It could involve constant texting or emailing you with issues concerning your family.
There are many forms of family violence, which would form the basis for an application seeking a family violence restraint order against your partner. An application for family violence falls within the state Magistrates Court. If there is a ground for family violence, the Court will consider making orders preventing the person who is responsible for such violence from contacting you and from entering your home. Family violence orders can also include the children whereby contact by a perpetrator of family violence is prevented from seeing the children.
The consequences of seeking a family violence order must be well considered by you before taking that step.
You must also give consideration to what you believe the children’s involvement with the other partner should be and how that can be best achieved.
Consideration must be given to the division of the relationship assets and how they are to be divided to cater for the needs of yourself and your family.
Children’s and property issues will be dealt with in our following seminars.
If you require assistance to deal with any of the emotional, financial, and legal issues arising from a separation, then you must seek professional advice.
Where do we go from here?
Many couples who separate can agree on what they wish to happen in relation to a distribution of their assets and if there are children, the arrangements which they wish to make, and put in place for the children’s future.
When couples are in agreement, the options for formalizing the property settlement and arrangements for the children are:
- Consent orders. Agreed Orders that can be made by the Court;
- Parenting plan setting out agreed terms of child care;
- financial agreement. Again, setting out terms agreed by the parties.
Negotiating an agreement.
Around the kitchen table.
In your negotiations with your partner in regard to property issues and children, it would be beneficial to seek legal advice from a solicitor who specializes in Family Law so that you are empowered and have knowledge of what is achievable in reaching a settlement. Once you are empowered with this knowledge, are you able to sit around the kitchen table and negotiate directly with your partner to resolve such issues?
If you can resolve such matters, then the agreement can be formalized in a manner which I have mentioned. Your legal adviser can assist you in drafting the necessary documents to formalize any agreement reached.
Do you require assistance to negotiate these matters with your partner? If you have a fairly good relationship with your partner, then the most effective means of assisting you in such negotiations is a new form of family law practice, which is Collaborative Practice or Collaborative Law. For Collaborative Practice to be successful, the solicitors engaged must be trained in this form of dispute resolution, a different mindset to the normal practice of Family Law. The collaborative lawyers are trained to work together with both you and your partner to reach an amicable settlement that you can both live with and which best suits your needs.
Collaborative Practice is a popular dispute resolution method developed in the United States in the early 1990s. It gained rapid popularity in the United States, the United Kingdom, Europe, and Canada and is now a practice available to help people in Australia.
Benefits of collaborative practice.
- You have the benefit of being advised and supported by a lawyer at all times.
- The outcomes are generally faster than traditional negotiation methods and most certainly quicker than Court outcomes.
- The outcomes are certain and long-lasting because they are owned by you and your partner, as you assisted in creating the outcomes.
- The process promotes cooperation in the future, particularly when long-term investments are involved, and when in most cases you would have a close association in the children’s lives.
- Negotiations are reached in a dignified and respectful way.
- The outcomes are often tailor-made and more creative providing fairer settlements.
The collaborative practice may be suitable for you and your partner if both of you:
- wish to spare your children from the emotional damage that litigation can cause;
- accept personal responsibility moving forward to reach an agreement;
- believe it is important to create healthier and more holistic solutions for your futures; and
- understand and embrace the necessity to make full and frank disclosure about financial issues.
Even when there has been family violence in your relationship, the collaborative practice may still be available. Your collaborative lawyer will assist you to determine whether this practice is available in such circumstances and if it could still be effective. Collaborative Practice allows other collaborative trained professionals such as psychologists and financial advisers (accountants) to be involved in the process. Financial advisers can be engaged where financial assistance is required, not only to assess the assets and their values, especially when there are companies and trusts but also to advise if any of the resolutions reached are a viable resolution financially and if resolutions would be more tax-effective and more suitable.
The collaborative approach would enable you and your partner to resolve issues respectfully so that you can arrive at dignified solutions to your dispute with your partner and maintain a sound relationship with each other in the future, especially if long-term financial interests are involved and also to assist in your future involvement with your children. The practice emphasizes reaching an agreement rather than having to battle it out in Court. You and your partner and your lawyers will work together to share information in a series of meetings. They will be involved in the full process and none of the decisions will take place outside your full knowledge.
Collaborative practice is different from going to Court. It involves meetings between yourself, your partner, and involving your lawyers. Everyone works together towards a common goal resolving the dispute with emphasis on retaining your dignity and best interests.
You will have your collaborative lawyer advising and assisting you throughout your negotiations. The playing field will be more even between you and your partner because you and your partner will have your respective lawyers to support you as well as other professionals if necessary and with your consent.
If an agreement is reached in these collaborative meetings, then the agreement can be formalized in the manner I have described above.
What if collaborative practice is not suitable for you? Are there other means available?
Mediation is another form of alternative dispute negotiation which may be suitable for you. Again, it is a voluntary process. However, the Family Court may order mediation if you do instigate proceedings in the Court.
Normally, in mediation, you are represented by your own lawyers. The difficulty with mediation is that you will have one version of the dispute and your partner may have a different version to your own. The Mediator is only there to assist you in negotiation. The difficulty is in bringing together the two opposing views given to your respective lawyers. The mediator’s role is to assist with communication between yourself and your partner so that you may have open discussions in negotiating a settlement.
The mediator’s aim is to facilitate the open discussions and communications between you and your partner so that you can identify the issues of the dispute, generate options to address such issues, and hopefully to agree upon ways to resolve the issues and to reach a settlement.
The mediator’s role is essentially a neutral one. The mediator will not take sides. The mediator will work with both you and your partner to help you negotiate your own decisions together and will not represent either of you in Court before or after mediation.
Both Collaborative Practice and mediation can be dealt with quickly, and because of this, the costs are limited. If these forms of alternative dispute resolution are not successful or are unavailable or cannot be agreed upon, then the only solution is litigation in the Family Court.
Litigation in the Family Court
Most matters in the Family Court are dealt with in the Federal Circuit Court. This is part of the Family Court in Australia. The more difficult issues are dealt with by judges in the Family Court.
Proceedings in the Family Court should be avoided if at all possible. It is emotionally and financially draining being involved in such a process. It can take years for a matter to resolve in the Courts.
The Court can order reports which would involve the children also being interviewed by a report writer. If all else fails, this is the final process to help you to resolve the issues arising from a separation. If you are embarking on this process, it is very important that you seek legal advice.
Financial support until financial issues and children’s issues are resolved. This would occur where a party has not had the financial control of the resources of the relationship, has not been in employment, and who has mainly been involved in the parenting and household roles and may not have the financial means to support himself or herself if a separation should occur.
A party can apply for spousal maintenance in the Court seeking financial support until all issues in the Court have been resolved. A spousal maintenance application can be made in its own right. It is not necessary to seek other financial relief from the other party.
The Courts consider the income levels of both parties and the expenditure of each party for their day-to-day living and other expenses. If a person does not have the income to meet his or her day-to-day living expenses or reasonable expenses, then that party has a need. If the other party has an income greater than his or her day-to-day living expenses or other expenses, then that party has the capacity to assist the other party financially until matters are resolved. In such circumstances, the Court can order the party with the financial capacity to pay spousal maintenance to the other party. Normally spousal maintenance ceases when financial issues have been resolved.
A party who has the care of the children can apply to the Child Support Agency for child support for the children. An application is made to the Agency and considered by the Registrar of that Agency. The child support payable is based on a formula that depends on the incomes of the parties and the care of the children. The Child Support Agency will determine the amount of child support payable, which is normally then deducted from income earned by the other party in his or her employment. On the website of the Child Support Agency, there is a calculator that sets out the formula and allows a calculation of child support payable.