The short answer is no – the Family Court will not grant a divorce where you and your ex-partner have been separated for less than 12 months.

The long answer is a bit more complicated. While you may have to wait 12 months to apply for divorce, you don’t have to wait that long to sort everything else out. You are able to settle children, property and financial matters as soon as you separate.

What if we get back together?

You are able to reconcile with your partner for up to 3 months before having to restart the 12 month separation period.

What if I’m not sure about how long we’ve been separated, or when we separated?

Separation can be a difficult and complicated process, and every situation is different. You may choose to separate under one roof, decide not to tell anyone until after some time, or have different accounts of when separation occurred. In these situations, you should seek legal advice to clarify your position.

Please note that the above information does not constitute legal advice and every case turns on its own unique facts. If you would like to obtain legal advice about separating or organising a property settlement and making arrangements for your children prior to divorce, please contact Kavanagh Lawyers on 08 6557 5888 or email reception@kavlaw.com.au.

 

There are a range of options available to separated parents seeking to formalise arrangements concerning their children. Figuring out which option is best for you begins with understanding the differences between them.

  Parenting Plans Parenting Orders Consent Orders
Does it need to be in writing? Y Y Y
Is joint agreement required? Y N Y
Do I need Court approval? N Y Y
Are there any fees involved? N Y Y
Is it legally enforceable? N Y Y

 

A parenting plan is an informal agreement between the parties. Parenting plans are not enforceable.

A parenting order is made by consent or by order of the Court. Where the parties are in agreement, they are able to jointly file their proposed orders (consent orders) at Court for approval. Where the parties are not in agreement, each party is able to propose orders and the Court will ultimately determine final parenting orders.

So, which is best for me?

Parenting plans are good, but their lack of enforceability makes them problematic. You may spend months agreeing on a parenting plan with your former partner but if either party breaches the plan, it cannot be enforced. Parenting orders (whether by consent or not) have the benefit of certainty and enforceability.

Please note that the above information does not constitute legal advice and every case turns on its own unique facts. If you would like to obtain legal advice in relation parenting orders and parenting plans, please contact Kavanagh Lawyers on 08 6557 5888 or email reception@kavlaw.com.au.

The Family Law Amendment (WA De Facto Superannuation Splitting & Bankruptcy) Bill 2019 was introduced to the House of Representatives on 27 November 2019.

If this bill is successful, de facto couples in Western Australia will be able to split their superannuation as part of a property settlement, bringing WA in line with the rest of the country. It is not yet known if the amendment will be applied retrospectively and/ or to existing applications. Our best assessment is that it will only apply to applications filed after the amendment comes into effect.

The bill will also allow the Family Court of Western Australia to hear family law and bankruptcy matters for de facto couples concurrently.

What you need to know about breaching and complying with parenting orders

Parenting orders are legally binding and carry serious legal consequences for breach. Where the Court finds that a party has breached (‘contravened’) parenting orders, they may order:

  • Payment of the other party’s legal costs
  • Attendance at a parenting course
  • Payment of a fine
  • A good behaviour bond
  • In extreme circumstances, imprisonment

The Court also has the power to vary existing parenting orders and order make-up time to compensate for any lost time as a result of the contravention. If the party has contravened parenting orders by failing to return the child, then the Court may also issue a Recovery Order.

However, a breach of parenting orders may not always amount to contravention.

Reasonable excuse

The Court may be prepared to excuse a contravention where the party in breach has a ‘reasonable excuse’ for failing to comply with the orders. While a ‘reasonable excuse’ sounds straightforward, it can be difficult to prove.

It is important to note that even if the Court accepts that there is a reasonable excuse, the Court is still able to vary parenting orders or make any other order it considers appropriate in the circumstances.

The importance of compliance

Where there are parenting orders in place, you must make reasonable attempts to comply with those orders. Even where contravention proceedings are not initiated, breaches can still be recorded and used in later proceedings.

Of course, in practise, compliance isn’t always that simple. If you would like more information in relation to breaching, varying, or complying with parenting orders, please contact Kavanagh Lawyers on 08 6557 5888 to arrange an initial appointment.

Popular culture is rife with references to the infamous prenup agreement. But is a prenup a good idea, and are they available in Australia?

Prenups in Australia

The equivalent of a prenuptial agreement in Australia is a Binding Financial Agreement (BFA). You can enter a BFA before, during or after a marriage or de facto relationship. It generally governs how the assets and liabilities of a relationship will be distributed upon separation.

A BFA is essentially allows you to contract out of the family law process.

Should enter a BFA?

A BFA may sound like a good idea on the face of it. However, the formalities associated with entering into such an agreement are quite detailed. In order to be binding both parties must have been advised independently of the advantages and disadvantages of the proposed BFA.

One of the advantages of a BFA is that it avoids the need for long and costly court proceedings. BFAs also remain private. A BFA also takes money out of your relationship, so you can focus on developing your connection without the need to worry about what happens if you separate.

What are my other options?

BFAs aren’t for everyone. Much will depend on the length of your relationship and what you would be likely to be awarded in the Family Court.

If you are considering a BFA or would like to know more about your options, please contact Kavanagh Lawyers on 08 6557 5888 to arrange an initial appointment.

Costs – Frivolous or Vexatious:  s 69 Restraining Orders Act 1997 (WA)

Section 69 of the Restraining Orders Act 1997 (WA) prevents a costs order being made against an Applicant, unless the application is “Frivolous or vexatious”.

 

In Lovelady v Griffiths [2018] WADC 180, Staude DCJ [pars 40-45] discussed some of the leading cases on the issue of “frivolous and vexatious” cases as follows:

 

  • Whether a VRO application had ‘no reasonable prospect of success’ is not the test for whether an application for costs should be awarded in a VRO/FVRO/MRO. The correct test is whether the application was frivolous or vexatious.
  • The terms ‘frivolous’ or ‘vexatious’ should be given their ordinary meaning
  • Something more than a lack of success had to be shown before proceedings could be said to be frivolous or vexatious
  • A claim could be described as frivolous or vexatious when it was groundless and had been an abuse of process in that the court’s time and resources had been employed in exposing a groundless basis.

Whilst the WA bill has a 3rd reading on the Legislative Assembly this week, the legislation is bogged down in the Legislative Council and progress is unlikely until 2020.

Please click here to see the bill and its progress.

On 19 June 2019, in the decision in Masson v Parsons [2019] HCA 21 the High Court of Australia upheld a decision of the Judge at first instance that a man who was actively involved in a child’s life and who was also her biological father was her “parent”.

  1. The case involved much constitutional law but ultimately the HCA concluded that the issue of who is a “parent” can be determined within the meaning of the Family Law Act.
  2. NSW state law and the Family Law Act did not mean that the biological father was irrefutably not a parent.
  3. Who is a parent is a question of fact and degree to be determined according to the normal contemporary understanding of the word and the relevant facts and circumstances at hand.
  4. Biology is but one fact, sometimes a very important fact – but it is not the only fact.
  5. In submissions from counsel for the father, it was asserted, and the HCA did not disagree, that a ‘parent’ signifies “a social relationship to another person” and includes factors like commitment to the child, biology, and conduct before and after birth.
  6. The decision opens up the real possibility of applications to the Family Court for declarations/orders from many parents previously thought to not be parents to their children are in law their parents.
  7. It’s possible that the federal or state parliament could change the definition of parents and presumptions could apply and such parents would not be required to bring applications to the Court.
  8. Alternatively, the state and federal governments may decide to leave the issue of parentage to the discretion of the Family Court which will necessitate case by case applications to the Court.
  9. Masson was argued in the context of NSW and Federal Law in circumstances where federal law determined de facto relationships and parental declarations. The situation in WA is different in that there is a state act- The Family Court Act. This may not be a significant matter- time will tell.