What is the Family Court?
The Family Court of Australia is a federal court set up in 1975 by the Family Law Act 1975 (Cth.). The court was founded in order to deal with matrimonial matters which under Section 51 and 52 of Australia’s constitution the Commonwealth has the power to deal with. Along with the Federal Circuit Court, the Family Court deals with divorce, property, maintenance and court orders relating to the care of children. Both courts also have jurisdiction in same sex and de-facto couple disputes.
In order for either party to a marriage to end that marriage, they must make an application for the dissolution of that marriage to the Family Court of Australia or the Federal Circuit Court. These courts grant a divorce by making an order called a “Divorce Order”. A Divorce Order differs to a Nullity of a marriage order. An application for nullity order can only be made to the Family Court of Australia. A nullity is an application that the marriage was void from the start, and may be because of any of the following factors, being:
- A party was lawfully married to another at the time of the second marriage (bigamy)
- The parties are within a prohibited relationship (e.g. brother and sister)
- There was no consent to the marriage, as purported consent was obtained through duress, fraud or mistake
- One party was not old enough to marry, or
- The ceremony did not comply with the formal requirements of the Marriage Act
Today, there is only one ground for obtaining a divorce; that is that the marriage has “irretrievably broken down”. In order to establish that a marriage has in fact ‘irretrievably broken down’, the court has to satisfy itself that the partners have been separated for a period of at least twelve months before an application for a divorce is made and further that it is unlikely that cohabitation will be resumed. The period of separation may be interrupted by periods totalling up to three months of “trying again” or reconciliation, but those periods must be added on to the 12 months before a divorce application can be made. People can be legally “separated” and yet live under the same roof. This may happen, for example, for financial reasons. The Family Court will have to decide on the particular circumstances as to whether a couple were “separated” despite the fact that they continued to live in the same residence. Separation pursuant to the Family Law Act involves three elements:
- An intention to separate (that is, to break the matrimonial relationship)
- Action upon that intention
- Communication of that intention to the other party
If you have been married for less than two years it will be necessary to attend an approved marriage guidance counsellor in order to consider a reconciliation. If you do however, apply for divorce an appropriate certificate confirming your attendance with a counsellor is required to be lodged with the application. The court can grant a divorce on the application even if one of the parties to the marriage does not want a divorce. Once the Family Court is satisfied that:
- There has been a twelve-month separation; and
- Proper arrangements have been made for the care of any children 18 years old or under
It will then grant the divorce. A Divorce Order is made on the day of the hearing and normally becomes final one month later. Once the Divorce Order has been made, the parties are free to marry again. The current Family court fee payable on an application for divorce is $1,275.00. Whereas in the Federal Circuit Court it is $900.00. If you are the holder of a Pension Concession Card or Health Care Benefit Card, Commonwealth Seniors Card or any other card issued by the Department of Social Security or Veterans Affairs Card you are entitled to apply for a reduction of Payment of court fees. Persons in receipt of Austudy or Abstudy also qualify for a reduction. Before contemplating a divorce application you should consult with Guy Messina of our office. Guy is an experienced accredited Family Law Specialist, who can advise you fully of all issues involved and ensure that your best interests are always protected.
Children and Property Orders
It is possible for parties to the marriage to make consensual agreements about guardianship, custody and access to children, as well as orders relating to spousal or children’s maintenance and property. It is crucial that you consult a solicitor before agreeing to any orders relating to children or property as it is important to understand the short and long term ramifications of any decision. If parties agree by consent to orders and the court is satisfied with the arrangements proposed, it will officially approve them. However, if the parties cannot agree then it is necessary that a formal application to the Family Court be made. The court will then conduct a hearing and make final orders. At Portelli & Co a pragmatic approach is taken. We aim to settle a dispute as quickly as possible, always keeping in mind your best interests. Nine out of ten cases settle without a judge having to make a final decision. These settlements are often reached as a result of negotiations between solicitors. Guy Messina’s many years of experience in this jurisdiction makes him an expert negotiator, from whom you can expect excellent results.
Terminology of Other Orders
Orders in relation to the future care of children are called ‘parenting orders’. There are 4 types of parenting orders: Residence Orders: determining where and with whom the child is to reside. Both parents can have residence orders, with the child residing most of the time with one and a minority of time with the other. Spend Time With: a child has the right to have time and communicate on a regular basis with both parents except where it is or would be contrary to the child’s best interests. Specific Issues Orders: these cover single-issue disputes between parents about education, sport, religion, etc. of the child. Maintenance/Child Support: maintenance is a periodic payment made to one partner by the other for his or her expenses and/or those of the children. Child maintenance is usually payable to the Child Support Agency that distributes the payments. Child support can be very complex and you should seek advice as to your rights when receiving any assessment from the Child Support Agency. Often the Agency Assessment are inappropriate and should be reviewed. Parenting Plans: parents wishing to make their own arrangements for their children can do so by drawing up a parenting plan. This can be especially useful where parties maintain a reasonable relationship with one another after separation. You should seek our advice as to whether a parenting plan is appropriate in your circumstances. It is not necessary that these plans be registered with the Court, however, they cannot be enforced unless they are registered and made as Orders of the Court.
Family Court Mediation Services
The Family Court offers an extensive counselling service which is staffed by trained counsellors. The counselling service aims to assist people while in the Family Court in resolving the many issues that are associated with the breakdown of their relationship. This includes dealing with matters involving any children of the marriage. The counselling service is available to any person with children, and the Family Court will not hear a contested application for custody or access unless the partners have been to a counsellor. There is a free mediation service offered by the Family Court which has been available since 1992. It is important to note that not every dispute will be suitable for mediation and the Family Court Rules sets out a criteria for establishing whether a dispute is appropriate for mediation. If a dispute is suitable, often mediation is a very successful way of avoiding an escalated court dispute, which carries with it significant court and legal fees.
General Powers of the Family Court
The court has the responsibility of determining all cases that come before it on its merits and will make orders according to the particular facts of each case. The Family Court has a wide discretion in order to enable justice to be achieved. As part of the remedies available, the court can issue injunctions that stop a party from doing something or makes them do something. The Family Court can also use the Federal Police Force to help enforce its orders.
To enforce maintenance orders, the court can order employers to take a weekly sum from the wages of a person who refuses to pay maintenance. It can appoint an officer of the court to sign documents in the place of someone unwilling to sign them. It can order the seizure of property or money held in bank accounts. For clear concise and cost effective advice in respect to your family law problem feel free to consult with Guy Messina.