Written by Erica Panagakos
The Judges of the Federal Circuit Court of Australia recently invited lawyers practising in family law to attend a seminar. During the seminar, the Judges expressed frustration at the number of lawyers who wait until they are at Court for a hearing or conference before making a genuine attempt to resolve their clients’ disputes. I have always considered dispute resolution to be the aim of the game and I too am increasingly frustrated by lawyers who get caught up in their clients’ emotions and “pump up” a fight instead of recognising that it is in their clients’ best interest to diffuse it.
The seminar caused me to reflect on my recent involvement in a matter that was listed for a conciliation conference with a Registrar of the Court. The parties had a very modest asset pool comprising a small amount of equity in the former matrimonial home, basic furniture, old cars and modest superannuation. The facts of the case are not remarkable – both parties are of similar age, earning a similar income. There were no contributions of significance by either party at the time of cohabitation or during the relationship and the parties had no children. The...
Under the Family Law Act, a spouse or de facto spouse has the right to apply for support from their former spouse if they are unable to adequately support themselves.
If the applicant spouse can establish a need, then the Court looks to the other party to ascertain if they have the capacity to provide support.
In making a decision the Court would take into consideration the age and state of health of each of the parties, their income, property, resources and capacity to work. The Court will look at whether the relationship has affected a persons ability to earn an income.
The Court will also take account of a suitable standard of living in all the circumstances and whether a party has the care of children under 18 or children over 18 who are either students or have a disability
Some parties are able to reach agreements and if necessary can record their agreement in a binding way – either by way of a properly drafted Financial agreement or a Consent Order.
If no agreement can be reached, then an application might need to be made to the Court for an Order on a contested basis. There are deadlines for filing such an application.