If a child has been wrongfully removed within Australia, application can be made to the Court for a Recovery Order. A Recovery Order authorizes officers of the Court, the Federal Police and the State Police to stop and search vehicles, vessels, aircraft, premises or places where the child may be found. When found, the child is returned to the party who has made the Application.

Case: Claudia returned after her mother abducted her to WA

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Claudia returned after her mother abducted her to WA

Peter and Claudia were a fantastic father and daughter team, they spent many hours discussing their favorite sports. Peter was deeply involved with Claudia’s home schooling. He lived with Claudia and her mother. One night, though, Peter returned home from shopping to discover both Claudia and her mother were gone. An urgent application was made to the Family Court of Australia and the Australian Federal Police found Claudia safe in West Australia and a few days later she was home safe and sound with her dad. Peter and Claudia continue to spend many happy hours together today.

Situations where the agreement may not be binding include:

• the general laws of contract must be followed,
• both parties must make full disclosure of their financial situation,
• parties must not be dishonest or fraudulent in disclosing their financial position,
• if the procedures set out in the Family Law Act have not been properly followed, or
• a significant change in the care, welfare and development of a child of the relationship has arisen since the agreement was entered into, which would result in a party suffering hardship if they could not overturn the agreement.

If you want a binding financial agreement, then you will need to discuss the following with your partner beforehand:

• who will work during the relationship?

• is there a plan to have children?

• are there children from previous relationships?

• what happens if either partner can no longer work?

• what happens if a child has a disability or illness requiring significant care?

• what are your retirement goals?

• will assets be joint or separate?

There is still some uncertainty about how the law providing for financial agreements will be applied. The situations where a financial agreement will be set aside are not yet clear. Where inadequate consideration is applied by the parties then unanticipated circumstances may arise which make the agreement unfair.

A financial agreement provides the couple with the knowledge that if they separate, the division of their property has already been arranged. The best advantage is obtained from a well drafted financial agreement which has been prepared after proper consideration on the part of the parties to the agreement

Common reasons for considering a prenuptial agreement include:

• ownership of a successful business;
• having a high level of wealth;
• having children from a previous marriage;
•  having elderly parents;
• anticipating a sizeable inheritance;
• having sizeable debt;
• pursuing a lucrative career;
• ownership of stock, a home or retirement fund; or
• avoiding a costly divorce.

Financial Agreements can regulate financial arrangements between married couples, de facto couples and same sex couples.

Financial agreements are binding and enforceable, but only if they are made in a way that follows the procedures required by the Family Law Act.

Financial agreements describe how the property and financial resources are to be divided between the parties if they separate. The agreement may provide for the maintenance of one or both parties.

The agreement must be in writing and signed by each of the parties. It is necessary for each party to have obtained independent legal advice before signing the agreement.

Financial agreements can be terminated by written consent or set aside by a court.

Both you and your ex-partner are entitled to live in your home after separation regardless of whose name is on the title. You cannot be forced to leave just because the property is not in your name. The only way you can be forced to leave is if the Court orders it.

If you do have to move out, it will not affect your property entitlement. Your rights continue even if you leave. If you fear violence, you should seek advice immediately.

Sometimes one party may seek a sole occupancy order which requires the other party to leave. This allows the remaining spouse to live in the house until the property is divided. This order will usually only be made in exceptional situations where there is domestic violence, threats are being made or if the house has been adjusted because somebody has a disability.

The Family Law Act provides for binding financial agreements to be made between parties to a marriage, a de facto relationship or a same sex couple. These agreements can be made before, during or after the end of the marriage or relationship. Parties entering into a relationship agree what will happen in the event that they separate. Parties entering into a second relationship or with substantial assets often like the protection of a financial agreement.

Step 1 – identifying and valuing the assets, liabilities and financial resources of the parties.

Step 2 – assessment of the contributions made by the parties during their relationship.

Step 3 – assessing the future needs of each of the parties.

Step 4 – decide if the proposed division of property fair to both parties.