Spousal, de facto or same sex couple periodic maintenance may be paid when one party has the financial capacity to pay and when the other party is unable to financially support himself or herself adequately.

In determining whether or not periodic maintenance is paid, each party’s financial income and commitments are assessed.

There is a competing obligation upon the courts to ensure that, as far as practicable, any orders made finally determine the financial relationships between the parties. As a result, there is a tendency for periodic maintenance orders to be for a shorter duration.

In addition to the assets and liabilities of the relationship, financial and non-financial contributions, other considerations such as future needs, income earning capacity as well as maintenance concerns will be taken into account when determining a property settlement.

Carol and her school-aged daughter Emily moved to Australia from the United States. Emily settled into school and Carol started in a new job which was a major promotion and pay rise. Meanwhile, unbeknown to Carol, Emily’s father sought and was granted custody of Emily through a Court in the USA. The Court ordered Emily to return to live in the USA. To her surprise, Carol was also told that if she accompanied Emily to the USA it was highly likely she would be arrested and imprisoned. Emily was very upset and confided in her teacher that she was very happy in Australia and wanted to stay with her mother. A timely application to the Australian Family Court enabled Emily to stay with her mother in Australia.

[Case: Emily avoids being returned to the USA]

Peter and Claudia were a fantastic father and daughter team, they spent many hours discussing their favourite 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.

If the other parent breaches an order affecting your children, you can:

• use mediation to resolve the problem or
• apply to the Court that the other party has contravened the parenting order.

The Court takes breaches of its orders very seriously. The breaching parent can:

• be referred to a parenting program;
• fined; or
• made to provide “catch up” time.

The breaching parent may show a reasonable excuse. For example, a very sick child may be considered a legitimate reason.

If the orders breached are no longer workable, the Court may order that both parents attend a parenting program, or adjourn the case to consider varying the orders.

Unless your case involves family violence, child abuse or is urgent, family dispute resolution is required before court proceedings about children can commence.

The Court will usually appoint a family consultant to assist and advise parties.

The Court must consider the needs of the child and the impact of the proceedings on the child. The Court must conduct the proceedings so that the child is safeguarded from family violence and abuse. The proceedings should intend to promote cooperative and child focused parenting and should avoid delay and formality.

If it would be in the interests of the child and reasonably practicable for the child to spend equal time with each parent then the Court may order equal shared parental responsibility. If the Court does not make an order for equal shared parental responsibility then it does not have to consider ordering that the child spend equal time with each parent.

The Court will read a report prepared by a family consultant or by making an order appointing an independent children’s lawyer.

The Court considers a wide range of discretionary factors in making decisions about children. The priority of the Court is always to ensure that the best interests of the children are met.

Additional considerations for the Court are:

• any views expressed by the child;

• various aspects of the child’s relationship with each parent;

• the likely effect of any change in the child’s circumstances; and

• any family violence involving the child or a member of the child’s family.

The extent to which each parent has fulfilled responsibilities in the past is also important.

The Court may also order independent evidence from a Psychologist or Counsellor to assist them in determining which care arrangements will promote the best interests of the children.

Parents are expected to have attempted family dispute resolution before applying for Court Orders. Family dispute resolution participation is not required if there has been abuse of a child by one of the parents or if there has been family violence.