January 24

Divorce: Overview

Divorce is the legal end of a marriage (dissolution of marriage). Australia has ‘no fault’ divorce. This means that when granting a divorce, the Court does not consider the reason/s the marriage ended. Neither spouse needs to prove that the other did (or did not) do something which caused the breakdown of the marriage. The only ground for divorce is that the marriage broke down and there is no reasonable chance that the parties will get back together.

The Federal Circuit and Family Court of Australia (the Court) has the jurisdiction or power to deal with divorce under Part VI  of the Family Law Act 1975.

The granting of a divorce does not determine issues of financial support, property division or arrangements for children. It is simply a formal recognition that the marriage has ended.

Can I apply for a divorce?

You can apply for a divorce in Australia if either you or your spouse:

  • regard Australia as your home and intend to live in Australia indefinitely, or
  • are an Australian citizen by birth, descent or by grant of Australian citizenship, or
  • ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.

You need to satisfy the Court that you and your spouse have lived separately and apart for at least 12 months, and there is no reasonable likelihood of resuming married life. It is possible to live together in the same home and still be separated. This is known as being separated but living under one roof.

Same-sex married couples are treated the same as other married couples and can apply for divorce if the marriage is recognised in Australia and you meet the requirements for divorce under the Family Law Act 1975.

If you were married overseas and your foreign marriage is recognised in Australia (in accordance with Part VA of the Marriage Act 1961), you must provide the Court with a copy of your marriage certificate. If your marriage certificate is not in English, you need to upload an English translation of the marriage certificate, together with an affidavit translation of marriage certificate from a certified translator.

If there are children aged under 18, a court can only grant a divorce if it is satisfied that proper arrangements have been made for them. You will be asked to provide information about any children of the marriage, or who were treated as members of the family in your application. Be sure to provide sufficient detail about the how the child/ren spend time and communicate with each parent, their education, health and financial support.

May 29

Guardianship and Administration Orders

What is Guardianship and Administration?

Guardianship or someone being appointed as an administrator applies in situations where an individual with a disability has limitations on their ability to make decisions for themselves, whether that be for their personal life, financial affairs, or their housing. They may need someone to make all those decisions, or perhaps just for one area, such as their housing. 

Per s3 of the Guardianship and Administration Act 2019 (Vic), an administrator is someone who cares for the individuals’ financial needs, whereas a guardian can make personal lifestyle decisions as needed. These two kinds of positions enable the appointed guardian or administrator to have legal decision-making power for the affairs of the individual. 

These orders are dependent on capacity – as in, does the person need a guardian or administrator to make decisions for them, or do they have capacity to make those decisions themselves? Generally, there is a presumption that every individual over the age of 18 is autonomous and has the capacity to make decisions for themselves. Capacity is defined as a person’s ability to determine the following:

  • Understand the information before them that is relevant to the decision and the effect of that information;
  • Retain the information to make that decision;
  • Use or consider that information as part of the decision-making process; and 
  • Communicate their decision, views, and needs to another person – can be through speech, gestures or other means. 

Sometimes, individuals cannot make decisions for themselves if they suffer from:

  • A disability that impacts upon their decision-making skills, such as intellectual or developmental disabilities; 
  • An acquired brain injury; 
  • Mental illness; or
  • Other illnesses, such as dementia or Alzheimer’s. 

However, capacity is not a stagnant issue or something that affects a person’s decision to make decisions about all factors of their life. Sometimes, it is dependent on the domain of the decision, such as finances or healthcare, or it can be time-specific, meaning that a person might have more capacity at the start of the day than at night. It can also be decision-specific, meaning that a person may be able to consent to a blood test, but not to significant surgery or operations. 

Sometimes, informal guardians or administrators can be appointed to look after certain needs of the individual, which can be performed by trusted family members or friends. Other times, there is a need for a formal arrangement in place. This can be done by the person formally appointing another as a guardian or administrator, such as through an enduring power of attorney. 

 

Any person who is concerned about an individual’s capacity to make decisions for themselves can make an application to the Guardianship list of VCAT. However, the application must include a report from the individuals’ social worker or doctor that validates their disability and lack of capacity to make certain decisions. VCAT will then hold a hearing to determine whether a guardian or administrator is appropriate and if so, who should be appointed.  

VCAT can appoint a guardian or administrator if there is no enduring power of attorney in place or in circumstances where the enduring power of attorney is deficient or inappropriate. If no suitable person can be determined, or if a family member does not want to take on that responsibility, then VCAT can appoint the Office of the Public Advocate to act as the person’s guardian or administrator.  

What must a Guardian or Administrator do?

A guardian or administrator must act in the person’s best interests, otherwise they will be in breach of their duty to the person. A guardian is also required, where possible, to consult the person whom they have guardianship over, to ensure that their best interests are maintained. This also allows the individual to be heard and be able to make or contribute to the decisions that affect them. 

If you are require assistance to make a VCAT application, or to make guardianship or administrator orders under an enduring power of attorney, it is crucial that you seek legal advice to determine the best course of action for your matter. Please contact us on (03) 9557 2915 or [email protected] for more information. 

May 29

Family Violence Intervention Orders

What is Family Violence?

Family violence is defined in s5 of the Family Violence Protection Act 2008 (Vic) as being behaviour that is physically, psychologically, emotionally, economically abusive or otherwise threatening, coercive or dominating behaviour that causes a family member to feel fear for their safety or wellbeing, or for another (such as a child). The laws around family violence also protect children who hear, see or are around family violence. 

The definition of family members is designed to cover a wide range of individuals, beyond just blood relations. For example, it includes people who are in an intimate relationship with each other, such as de facto, married, or domestic partners, any relatives by birth, marriage or adopted. It also includes individuals who you treat like a family member, like a guardian, carer or someone who is related to you in the familial structure of your culture. 

What is a Family Violence Intervention Order (FVIO)?

FVIOs are an order by the court to prevent someone from committing family violence (known as the respondent) against one or more protected individuals, who are often referred to as applicant or affected family members (AFMs for short). FVIOs can also have additional orders imposed on the respondent, such as prohibiting them from visiting the AFM’s home, school, or workplace, or prohibiting the respondent to contact the AFM via social media or via telephone or texts. 

FVIOs can be applied for on the court website, or a police officer responding to the incident can make an application. When the application is made, there are no orders imposed on the respondent. But police can also apply for an interim intervention order, which imposes conditions on the respondent until the matter is heard before the magistrate and determined on a final basis. 

What happens if you breach a FVIO?

Breaching FVIOs are extremely serious, as although FVIOs are civil orders, once a breach of a condition has occurred, a criminal offence has occurred. This means that criminal penalties will apply, if a person is found guilty of breaching any condition of the FVIO. 

For the AFM, if they become aware of a breach by the respondent, it is important that they contact police and inform them of the breach. It may be useful to keep details of the breach, and any other incident if the respondent does not stop. 

Depending on the severity of the breach, a respondent may be charged with a criminal penalty such as:

  • Fine;
  • Diversion;
  • Good behaviour bond; 
  • Community Corrective Order (known as CCOs); or
  • Gaol. 

If the breach is minor, police may determine to provide a warning or caution to the respondent. However, it is extremely important to avoid breaching a FVIO to ensure that criminal penalties are not laid against you. 

What if there is a parenting order already in place?

When there are inconsistencies between a parenting order and a FVIO, the decision of the Federal Circuit and Family Court of Australia (FCFCOA) will overrule any intervention order to the extent of the inconsistency. This is because the FCFCOA has Commonwealth jurisdiction, whereas intervention orders are made under state or territory law. 

This means that if there is a requirement for one party, the respondent to the FVIO, to pick up the child (who is an AFM) but the FVIO states that the respondent cannot come within 100m of the AFM or cannot go to the other parent’s property, then the parenting order overrules that condition. However, if the respondent attends the property of the other parent for reasons other than facilitating the pickup arrangement, then they will be in breach of the FVIO. 

However, it is important to seek legal advice, as navigating FVIOs and parenting orders are difficult and there is no one solution that will be applicable or appropriate to every overlapping matter. 

If you have breached an intervention order, or you are being affected by someone who is breaching an intervention order, please contact us on (03) 9557 2915 or [email protected] so that our team can assist you. 

May 29

What Are Parenting Orders?

Sometimes, parenting disputes can lead to parenting orders to be made by the court, which are orders that outline the parenting arrangements for a child or children of a relationship or marriage. These orders will include information about who the child/ren will live with and where, whether one parent has sole parental responsibility, and who the child will spend time with. 

Sometimes, these orders can also include information as to where the child/ren attend school, how medical decisions will be made for the child/ren, how communication will be facilitated between the children – such as telephone calls, Zoom, FaceTime or apps like AppClose – or even how travel arrangements with the child will work. 

Courts will usually make parenting orders following an agreement being reached between the parties through consent orders or following a court hearing. Parenting orders are legally binding, which means that they must be strictly complied with or else the Court may impose penalties on the contravening party. 

What happens if parenting orders are contravened?

If a contravening party breaches any parenting orders, they will have to satisfy the court that there was ‘reasonable excuse’ to breach the orders. 

Reasonable excuse has a specific definition under s70NAE of the Family Law Act 1975 and circumstances where it may arise include:

  • The contravening parent (known as the respondent) did not understand the obligations imposed upon them at the time of the contravention and the court is satisfied that the respondent ought to be excused in respect of their contravention, or 
  • Where the respondent contravened the orders as they felt it was necessary to protect the health or safety of a person (including the respondent or the child), and their contravention was not prolonged longer than necessary. 

Penalties that can be imposed on the respondent are dependent on the matter and type of contravention, but range from:

  • Order the respondent to attend a post-separation parenting program; 
  • Vary the primary parenting order;
  • Compensate the other parent for time lost with the child/ren; 
  • Order payment of a fine or payment of the other parties’ legal fees (either in part or full); 
  • Order participation in a community service; or
  • Require the respondent to enter a bond. 

The non-contravening parent, if they believe that the other parent has contravened the orders, can enforce previous parenting orders as part of their existing application in their parenting matter or make a separate contravention application. 

However, it is important that before making any contravention applications that you engage in legal advice, as unsuccessful applications can result in costs orders made against you. 

What happens if the child does not want to see their parent?

In some circumstances, children may refuse or be unwilling to spend time with the other parent, but this is not a reasonable excuse. Per s60CC(2)(a) of the Family Law Act, children have a right to a meaningful relationship with both parents. This is one of the factors that the court will consider when determining parenting arrangements. 

This means that both parties have a positive obligation imposed upon them to ensure that they do what they can to facilitate a relationship between the child and the other party. 

If you require more information or would like to discuss your parenting matter with us, please contact us on (03) 9557 2915 or [email protected] to assist you.