De facto Relationships

De facto Relationships

When it comes to defining a de facto relationship NSW law follows the definition and principles set out in Federal legislation. For the purposes of the Family Law, the meaning of de facto relationship is a close personal relationship between two adults, who are living together, one or each of whom gives domestic support and personal care to the other and of course, that are not legally married. Clearly, the family law definition affords and attaches the same rights and obligations to same sex couples, who fall under the same provisions as de facto relationships do under the Family Law Act.

After separation, a member of a de facto relationship has the same rights and obligations as a party to a marriage that has broken down, in relation to parenting issues and the division of property. For that reason, once it is established that the person was a party to a de facto relationship, the person can apply to the Family Law Courts for Orders that bind the other party. Of course, in relation to parenting orders/child custody, it is not necessary that a relationship between the parents existed. All children are afforded the protection of the Family Law. 

Proof of a de facto relationship

In determining whether the couple were living in a genuine, domestic relationship, the Court takes into account several matters, such as:

1. The length of the relationship; 

2. To what extent and under what arrangements the parties lived together; 

3. Whether there was a sexual relationship; 

4. The financial dependence or interdependence of the parties;

5. The acquisition, ownership and use of property; 

6. The degree of commitment by both parties to a shared life; 

7. The care and support of children; 

8. The performance of household duties; and

9. How other people saw the relationship. 

But before making property Orders, the Court must be satisfied that: 

1. The couple had a child together; or

2. The couple lived together for at least two years; 

3. The applicant made substantial domestic or property contributions or cared for the other party’s child and injustice would result if an order were not made; or

4. That the relationship is or was registered under a law of a State.

No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship. A Court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the Court in the circumstances of the case.

Legal Advice and Services in Melbourne including Dandenong, Narre Warren, Endeavour Hills, Hallam, Keysborough, Dandenong South, Hampton Park, Springvale, Berwick and Rowville.

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Children’s Matters Involving DHS

Children’s Matters Involving DHS

Children’s Matters Involving DHS

Overlapping concerns

19.103 The fact that there is federal family law jurisdiction and state child protection legislation and that both deal with issues of who a child shall live with, who the child shall spend time with, and protection of that child, also creates difficulties where the issue of child abuse is raised first in the state context. For example, rather than raising an allegation of child abuse in family court proceedings, a parent or another person may first notify a child protection agency that they have concerns about the child’s safety. That agency will investigate, and if it concludes that the child is in need of care and protection, it will commence proceedings in a children’s court. Although there are some exceptions, generally it is a child protection agency that must commence such proceedings.

19.104 The question of whether the case should be in the children’s court or a family court may arise at three different stages. First, during the agency’s investigation, but before it has commenced proceedings in a children’s court, the agency may identify a viable and protective carer for the child and refer the carer to a family court. Secondly, the child protection agency may already have commenced proceedings in a children’s court and it may identify a viable and protective carer. It may then withdraw its application in the children’s court and advise that carer to make an application for a parenting order in a family court.

19.105 Thirdly, after a hearing in a children’s court, it may become apparent that, although the child protection matters are resolved, there is still a dispute, for example between parents who cannot agree who the child shall live with and who it shall spend time with. Orders of a children’s court may not include the continued involvement of a child protection agency, but may instead regulate the parents’ involvement with a child. For example, courts in some states can make orders under the child protection legislation in relation to who may have contact with a child, and the conditions of that contact. In other states, courts are only able to make orders prohibiting contact by certain parties—they are unable to establish a contact regime. When the children’s court makes orders regulating parental contact these orders can be registered in the family courts.

Children’s Matters Involving DHS

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The Family Division of the Children’s Court is responsible for hearing child protection matters and these proceedings are often less formal than other Courts.

If the Department of Human Services (DHS) or a protective worker has served you a Protection Application, Supervision Order or Interim Accommodation Order (or similar) in relation to your child, we can liaise with DHS and advocate on your behalf so you can address DHS’ concerns, with the ultimate goal of having your child back in your care, (without DHS supervision or intervention) as soon as practicable.

Legal Advice and Services in Melbourne including Dandenong, Narre Warren, Endeavour Hills, Hallam, Keysborough, Dandenong South, Hampton Park, Springvale, Berwick and Rowville.

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Child Support and Maintenance

Child Support and Maintenance

Child Support and Maintenance

Child Support and Maintenance

The payment of maintenance (also known to others as alimony) is for the payment of the ongoing expenses for the spouse.   The payments received by a spouse for alimony are income to the recipient and deductible by the spouse paying it.  Therefore, when you receive $3000 a month in maintenance, you need to pay taxes on that, just as you would income from a job.  Your spouse gets to deduct this amount and does not pay taxes on the maintenance.

A spouse receives maintenance if the Court finds that the spouse seeking maintenance lacks sufficient property, including marital properly awarded, to meet her or his reasonable needs, and the spouse is unable to support himself or herself through appropriate employment OR is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.  Unlike child support, there is no set formula for the calculation of maintenance.  Maintenance is based on the reasonable needs of the spouse.  Reasonable needs are not necessarily the expenses that you incurred during the marriage.  For instance, a court may not think it is reasonable for a wife and child to remain in a 10,000 square foot home, with a $5000 mortgage payment, even if this is the house you have lived in your whole marriage.

Unless the court can determine an exact date when the receiving spouse will become self supporting, court-ordered maintenance will have no termination date.  The parties can agree between themselves to set maintenance for a specific number of years.  This award will generally be non-modifiable, whereas an order from the court will be modifiable upon a showing of changed circumstances.

Child support, on the other hand, is not taxable.  Child support is calculated by the Missouri child support guidelines, which considers the incomes of the parties, as well as the needs of the child, including costs of health insurance, child care, extraordinary medical expenses and other special needs.  The courts generally stick very closely to the guidelines unless there are extraordinary needs of the children.  Child support terminates at age 21 unless the child does not attend college.

Child support does not replace maintenance.  You need to carefully consider whether you should accept maintenance in lieu of child support.

Legal Advice and Services in Melbourne including Dandenong, Narre Warren, Endeavour Hills, Hallam, Keysborough, Dandenong South, Hampton Park, Springvale, Berwick and Rowville.

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