The laws relating to property settlement at the end of a de facto relationship have recently changed. For relationships that have broken down since 1 March 2009, the Family Court now deals with all of the legal aspects of the separation, including any:

Child Support Agreement,

Parenting Plan or

Parenting Order.

Child Support

Child Support can be sought via the Child Support Agency or a Child Support Agreement.

Parenting Orders. may be sought in the Local Court, the Federal Circuit Court or the Family Court. The principles that apply to the children of marriages also apply to the children of de facto relationships.

Hi, I’m Vanessa Mathews from Byron Bay Family Law & Mediation Specialists. Today’s topic is children and parental responsibility. I’m going to provide you with some of the basic information you should have before you begin discussing child custody with your spouse or partner.

I also suggest you read the information provided on our website at mathewsfamilylaw.com.au and I highly recommend that you speak with a lawyer before signing anything or filing any court documents.

Often I find that people forget the most important part of their parenting dispute, which is of course, their children. Unless one parent is a physical or emotional danger to the children, most children are better off in the long run maintaining a close and meaningful relationship with both parents. The less fighting between you, the better it is for your children.

Before you begin discussing the children with your partner or spouse, there are a few important terms to remember. First, there’s equal shared parental responsibility. Australian law changed a few years ago and today, parents are generally given equal shared parental responsibility for their children. This doesn’t necessarily mean that the children live in both homes equally, but rather that both parents have the same rights in making major decisions for the children.

The other important term is custody which means who the children live with. There is primary custody where the children live more with one parent than the other, then there’s shared care, where the parents have more shared time with the children. You and your partner can also come up with your own parenting agreement, which is an arrangement for taking care of your children.

A good parenting agreement should be as detailed as possible. It should include where the children will be on each days of the week and during the school holidays, how major decisions for the children will be made, such as the religion they have to be raised in and the schools they will attend. The agreement should also look towards the future. For example, by anticipating the changes from primarily to secondary school, extra- curricular activities and healthy expenses such as orthodontics.

A good parenting agreement will also have a way for resolving disputes. So, when there is a disagreement, there is a clear way to solve the problem. For example, some couples require that they first sit down and talk to each other to come to a compromise. Others might decide that it’s best to turn to a mediator or family dispute resolution practitioner.

You can submit this agreement to the court for approval, which makes it binding on both sides this is called a consent parenting order or you can opt for a parenting plan, which is not binding on either of you. If you can not agree between yourselves, you can bring the dispute to the court and a judge will decide for you.

We believe it’s always better for parents, and not the judge, to decide about children as it is you who knows what’s best for them. The co-parenting calendar on the Byron Bay Family Law & Mediation Specialists website will help you and your spouse or partner to plan your children’s living arrangements. I’m Vanessa Mathews at Byron Bay Family Law & Mediation Specialists.

When the Australian states referred their powers to legislate about the property of de facto couples (same sex and opposite sex) to the Commonwealth at the turn of the decade, the question of what constituted a de facto relationship under the new legislation became the subject of much debate and, consequently, litigation.

The lay understanding of the term “de facto” tends to assume that there is a single identifying factor or test: for example, you have to live together and both be on the lease, you have to be in a relationship for more than two years, or you have to declare your relationship to Centrelink or the ATO.

As is often the case, however, the legal reality of the situation is not so clear cut.

The definition of a “de facto relationship” can be found in section 4AA of the Family Law Act 1975 and in brief requires that:

1. parties to a relationship are not legally married to each other;
2. parties to a relationship are not related by family; and
3. having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

It is the word “circumstances” in this third point upon which the discussion turns. The legislation goes on to list a number of circumstances that may (but not necessarily) be of relevance:

1. the duration of the relationship;
2. the nature and extent of the parties’ common residence;
3. whether a sexual relationship exists;
4. the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties;
5. the ownership, use and acquisition of the parties’ property;
6. the degree of mutual commitment to a shared life;
7. whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
8. the care and support of children;
9. the reputation and public aspects of the relationship.

Having listed the above factors, however, the legislation goes on to specify that not one of them is a prerequisite for the Court finding that a de facto relationship exists: instead, the importance of each factor should be determined by the Court in the particular “circumstances” of the case.

The effect of these sections is to give the Court a wide ranging discretion to determine each situation as the judicial officer deems appropriate. Understandably, this causes consternation in our mutual clients who often struggle to determine whether or not their relationship should be considered a “de facto”, along with the legal, taxation and other ramifications that such a status brings.

It may seem to go against “common sense”, but recent de facto litigation has shown us that a de facto relationship can, based on the above, be found to exist where one (or both) parties to the relationship is already married to another person, where the parties do not and have not lived together, or even where there has not been any sexual intimacy between them.

While it continues to be an area of law that finds its basis in judicial discretion, the issue of classifying de facto relationships will present a potential minefield for parties and their legal and financial advisors. Armed with knowledge of these pitfalls, however, prudent practitioners will be in a position to ensure that these issues are addressed at a time when asset protection and planning remain an option, and certainly before the horse has bolted and the intimate details of the parties’ personal lives are aired before the Family Law Courts.

Second marriages, partnerships, step-families present challenges, new opportunities after separation, divorce

Relationships Australia has prepared this informative summary about challenges and complication of re-partnering after separation, divorce.

In second partnerships, couples are often more aware of the difficulties in establishing a successful relationship and are more committed to making the marriage work.

Both second marriages and step-families have to overcome some difficult hurdles. These hurdles can present significant challenges to the couple in their relationship as partners and as parents.

Unfortunately, many second marriages and step-families, despite their commitment to making things work, fail to get over these hurdles.

This page outlines some of the challenges and complications of re-partnering and step-families.

The decision to re-marry or re-partner

Before you re-marry or re-partner, you should consider the following questions:

• When?
• Why?
• To Whom?

Listen to any doubts. If necessary, wait a little longer

When?

The simple answer is after you have fully come to terms with the end of your previous relationship.  This is particularly important if you did not want the first marriage to end, and had to deal with the pain of leaving or being left by your previous partner.  It takes longer than many people expect to get over the end of a long term relationship, even if you were unhappy and felt that the end was inevitable.

Some studies suggest many people take at least two years to adjust to the end of a long term relationship. There are many exceptions to this. Some people take longer, others adjust more rapidly. Ask yourself:

• Do I find myself thinking about my ex-partner and do these thoughts still arouse strong feelings such as anger and resentment?
• Have I adjusted to living alone again?
• Have I regained a sense of self-confidence?
• Can I look back on that relationship and recognise some of the things that contributed to its breakdown?

In other words, am I emotionally free to re-partner? Can I put all my emotional energy into this new relationship without allowing my feelings about my previous relationship to get in the way?

Just as you cannot re-marry until you are legally free to do so, being emotionally free to re-marry is also important.

Why?

Unfortunately this question is often overlooked. Are you thinking of re-marrying or re- partnering because you want to be with someone whom you love or do you want to re-marry or re-partner for the sake of being in a relationship, or to provide a two-parent home for your children?  Being alone is not easy after being married or in a long-term relationship, especially if you have children living with you.  However, moving too rapidly into a new relationship can create a new set of problems.

To whom?

Past experiences influence our choice of partners.  This is especially true of a second marriage.  Be realistic about what worked and what didn’t work in your first marriage when making a decision about a new partner.  Learn from that experience to clarify what sort of partner you want.

Being in love is not enough to make a relationship work especially once the initial excitement has worn off.

The following organizations offer separation, divorce counselling:

Family Relationships Centre:  http://www.familyrelationships.gov.au/searchpages/searchpage.aspx?KEYWORD=frc%20not%20pop&RESOURCETYPES=Service

Relationships Australia: http://www.relationships.org.au/what-we-do/services/counselling

CatholicCare: http://www.ccam.org.au/

Family Mediation Centre: https://www.fmc.org.au/marriage-counselling.php?gclid=Cj0KEQiAqK-zBRC2zaXc8MOiwfIBEiQAXPHrXsvDPeRotm4nM6DHg4zIk5QIa_fiidlbpIzCf9gbUlYaAoXl8P8HAQ