Family Law

One of, if not the most distressing factor faced by a father upon the breakdown of his relationship, is the risk of losing his relationship with his children.

As any loving father would imagine, this scenario would be completely devastating.

Anecdotally, there seems to be a lot of misinformation within the community concerning Courts favouring mothers over fathers when it comes to child custody matters.

In Western Australia, when parents separate, one or both of the parents, a grandparent or any other person concerned with the care, welfare or development of the child may apply to the Family Court of Western Australia (the Court) for a parenting order.

The Family Court is guided by the provisions of the Family Law Act 1975 (Cth) (the Act) of the Family Court Act 1997 (WA) (which, broadly speaking, mirrors the Act) when it considers each application.

The principal object of the Act is to ensure that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child.

Outdated traditional gender stereotypes are not a factor considered by the Family Court in determining what is in a child’s best interests.

When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for both of the child’s parents to have equal shared parental responsibility for the child.

It is important for fathers to note that parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.

It does not necessarily mean that a child spends an equal amount of time with one parent or another although in some circumstances that is a suitable outcome.

The Act places a high value on the parent (both mother and father) and child relationship. It will always be difficult to make a case that a child spends no time with his or her father (or mother for that matter). It is important to appreciate that it is your child’s right to enjoy a meaningful relationship with both of his or her parents.

When could a Court refuse to allow contact between father and child

Relationships involving family violence, particularly where it forms a pattern of dominating and controlling behaviour towards the mother or where a child has been exposed to physical or psychological harm, abuse, neglect or family violence are circumstances where the presumption of joint parental responsibility would not apply, and the Family Court may refuse to permit a father to spend time with his child.

It should be stressed that these cases are certainly the exception rather than the norm.

What can I do if the mother refuses to allow me to see our children?

If the mother is not allowing you access to the children and there are no Family Court Orders in place you should, initially, consider the strategies below to rectify the situation:

• talk to the mother in a safe environment and express your concerns;

• attend counselling sessions together, possibly including the children. Anglicare WA (www.anglicarewa.org.au) and/or Relationships Australia (www.relationships.org.au/) are a great starting point. Depending on where you live in Western Australia, they provide Family Dispute Resolution where parents/families can discuss issues relating to their children and develop parenting plans that are in the best interests of their children;

• see a psychologist together to address factors that may be causing the denial of access; and/or

• consider privately funded mediation.

In some instances, these steps may not be possible or appropriate particularly if the mother has applied for and obtained an (interim) family violence restraining order.

If that is the case it is important to seek legal advice from a lawyer experienced in family law matters at the earliest opportunity.

Parenting plans for fathers

Parents are strongly encouraged to enter into parenting plans to formalise arrangements in relation to children without recourse to the Family Court.

In practice, a father’s ability to remain actively and meaningfully involved in a child’s life will almost inevitably depend on the cooperation of the mother and their ability to agree on parenting arrangements that allow the child to spend time with each parent.

In the absence of cooperation and consent, a Judge or Magistrate is given the unenviable task of determining what is in your child’s best interests.

The experienced family lawyers at HFM Legal regularly advise clients with respect to children’s matters and assist clients with all other aspects of the breakdown of their relationship including property settlement, maintenance and divorce.

What is Spousal Maintenance?

Spousal maintenance (also known as spousal support) is financial support paid by a party to a marriage to their former husband or wife in circumstances where they cannot adequately support themselves.

When is Spousal Maintenance Payable?

In accordance with section 72 of the Family Law Act 1975 (Cth), a person has a responsibility to financially assist their spouse or former de facto partner, to the extent that the first-mentioned party is reasonably able to do so if the other party is unable to support himself or herself adequately due to:

1. having the care and control of a child of the marriage who has not attained the age of 18 years; or
2. by reason of age or physical or mental incapacity for appropriate gainful employment; or
3. for any other adequate reason if that person cannot meet their own reasonable expenses from their personal income or assets.

Where the need exists, both parties have an equal duty to support and maintain each other as far as they can. This obligation can continue even after separation and divorce. The extent of the support depends on what the other party can afford to pay.

How Do You Calculate Spousal Maintenance?

The is no reliable online calculator that you can use to determine how much spousal maintenance you may be eligible for from a former spouse or de facto partner.

Firstly, relief is discretionary, and secondly, a myriad of factors must be carefully considered in determining an application for spousal (or de facto partner) maintenance.

In short, you (or the Court) will need to consider:

1. the income and expenses of your former spouse (or de facto partner) and whether or not he or she has the capacity to pay maintenance. That is, does his or her income exceed his or her reasonable expenses?
2. If not, you are not entitled to maintenance.
3. If your former spouse or de facto partner has the capacity to pay maintenance you will then need to consider to what extent you are unable to support yourself taking into account a myriad of factors such as:
1. your age and state of health;
2. whether you care for a child under 18;
3. your income and reasonable expenses;
4. any property and financial resources;
5. your capacity for appropriate gainful employment;
6. commitments to support a child or anyone you may have a duty to support;
7. the eligibility of the parties for a pension, allowance or benefit;
8. whether either party is entitled to receive or pay child support;
9. a standard of living in all the circumstances that is reasonable;
10. the rights of any creditors;
11. any contribution to the income, earning capacity, property and financial resources of the other party;
12. the duration and impact marriage;
13. if either party is living with another party following separation, the financial circumstances of that new party. NOTE: maintenance will cease if you re-marry; and
14. the terms of any binding financial agreement.

How Do I Apply For Spousal Maintenance?

In many cases, if you and your former spouse or de facto partner can agree on an amount of spousal maintenance, you can formalise the agreement by way of Form 11 application for consent orders or by way of a Binding Financial Agreement.

If you cannot agree with your former spouse or de facto partner, you will need to apply to the Family Court for spousal maintenance. You will need to file the following documents in support of your application:

1. a Form 1 Initiating Application (or a Form 2 Application in a Case if the case is ongoing);
2. an affidavit in support of your application; and
3. a Form 13 Financial Statement setting out your current financial circumstances. NOTE: you will need to complete Part N of the Financial Statement which sets out your weekly expenses.

Fees apply. As of 1 July 2023, the filing fee for a Form 1 Initiating Application is $410 (for final orders only) or $550 (for interim and final orders). See the Family Court of Western Australia’s website for the most up-to-date application fees.

Can I Apply for Spousal Maintenance If I Was in a De Facto Relationship?

De facto partner maintenance is financial support paid by a party to a de facto relationship that has broken down to their former de facto partner in circumstances where they are unable to adequately support themselves.

In Western Australia, section 205ZC of the Family Court Act 1997 (WA) applies and is substantially the same as section 72 of the Commonwealth Family Law Act 1975 (Cth).

Are There Any Time Limits That Apply for Spousal Maintenance?

Strict time limits apply on applications for spousal maintenance.

If you were married, applications for spousal maintenance must be made within 12 months of your divorce order becoming final.

If you were in a de facto relationship, your application for de facto partner maintenance must be made within 2 years of the breakdown of your de facto relationship.

If you do not apply within these time limits, you will need special permission from a court. This is not always granted. You will need to establish that, at the end of the period within which the proceedings could have been instituted without the special permission of the court, your circumstances were such that you would have been unable to support yourself without an income-tested pension, allowance or benefit.

The experienced family lawyers at HFM Legal regularly advise clients regarding maintenance applications and assist clients with all other aspects of their relationship breakdown, including property settlement, children’s matters, and divorce and separation. We have three offices in Western Australia: North Perth, Maddington, and Broome.