Separating from your partner and relocating with your child: how does the law work?

Moving to a new city or State can be an exciting prospect in terms of employment, proximity to loved ones – or simply for a fresh start. However, after separating from a partner with whom you share children, relocation becomes more complicated. Our team of Family Lawyers here in Melbourne explain the laws around relocating with children so you can understand what to consider and what to expect. This information is relevant whether you are planning on relocating with your child or children following a separation, or whether your ex-partner would like to relocate.

The basics of Family Law

The laws and protocols around families and children is contained within the Family Law Act 1975. When it comes to issues concerning children, all matters are governed by one guiding principle. That is that the Court will always make its decision based on the best interests of the child. This includes any case involving relocating with children.

As a parent, you know what is best for your child. In the eyes of the law, the best interests of children are met by:

• allowing children the benefit of both parents having a meaningful involvement in their lives (children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development)
• protecting children from physical or psychological harm
• ensuring children receive proper parenting
• ensuring parents fulfil their responsibilities in regards to the care of their children.

These points are assumed to the maximum extent consistent with the best interests of the child.

Parenting arrangements/orders

Upon separating, ex-partners will come to some kind of arrangement – whether that be verbal, written or put in place by a formal court order – about how the children of the relationship will be cared for. This includes how much time the children will spend with each parent. Parenting arrangements or orders are important within the context of relocation, as these arrangements will likely no longer be practical if the move goes ahead. This is important to remember through the next steps in the process.

If you and your ex-partner agree

Coming to an agreement on your own terms is the most desirable outcome. For example, a common arrangement is that the parent who is not relocating will look after the children on school holidays, to make up for time missed.

If you and your ex-partner have come to a mutual agreement around relocation and relevant parenting arrangements, then you should formalise this arrangement either by consent orders or an official parenting plan. You should seek legal advice before entering either.

Formally documenting your arrangement is important so that each party understand exactly what they are agreeing to, and to avoid disputes in the future.

If you and your ex-partner cannot agree

If you and your ex-partner would like to agree but need help to reach a final agreement, you can undergo dispute resolution with the help of Family Law experts.

If this is not possible, then you will need to apply to the Court asking for an official order which allows you to relocate with your children.

Similarly, if you would like to stop your ex-partner from relocating with your children, you can also ask the Court to make an order to prohibit them doing so. This court order could include parameters such as the child’s residence being within a certain metropolitan area, or a defined distance from their current school.

The Court will consider whether the move is in the children’s best interests, with consideration given to an adult’s freedom to relocate if they wish.

What if there was a relocation without consent?

Relocating with a child without the consent of the other parent, or without a court order, is known as ‘unilateral relocation’. If there is a unilateral relocation, the Court will likely order that the child is returned.

If there is a court order in place and the unilateral relocation means that this agreement can’t be followed, this is a considered a breach. Breaching your court orders can have serious implications, including fines and even imprisonment in some cases.

If you have relocated without the consent of the other parent of your children, or vice versa, you should seek legal advice.

What about the wellbeing of parents?

As mentioned – the paramount decision in court matters involving children is the wellbeing of the children. That doesn’t mean; however, that the needs and wellbeing of the parents aren’t considered as well.  

For example, the court will consider the location of the proposed move, and whether (or whether not) that location will improve the mental health of the relocating parent. This could come in the form of increased family or social support, for example. Another factor is whether the relocation is to an environment that supports the parent and child’s culture and religion.

Financial circumstances are also considered in the court proceedings. If the relocating parent will have improved job prospects or their financial situation will improve, or if they have had financial hardship in their present location this will also be taken into consideration.

As you can see, these factors are related to the wellbeing of the parent, but ultimately consider how they effect the parent’s ability to undertake their parental responsibilities.

What if my ex-partner is uncontactable or isn’t in the child’s life?

Each child relocation case is different and will be treated as such; however, if the parent who is not relocating spends little or no time with the child, this will be considered by the Courts, again, through a lens of the child’s best interests.

Furthermore, if one parent has a history of abuse or neglect, then it’s likely that it will be in the child’s best interest to relocate.

In this situation, we recommend engaging the services of Family Law experts to ensure that your decision to relocate will be upheld by law.

A short (but important) note on international travel

If you are separated from your partner and would like to take your child overseas on holiday, you’ll need written consent from the other parent.

While parenting orders are in place, it’s a criminal offence to take or send the child overseas without consent, unless there is a particular and specific order in place allowing that to happen.

Finding the best outcome with Family Law experts

Le Brun and Associates is a leading Melbourne family law firm that can give expert guidance around separation, child residence, and relocation. Our team is ready to support you and understand your unique situation. Contact us today for a complimentary 30-minute consultation.

This post was originally published on https://www.lebrun.com.au/le-brun-associates/

What are my rights in a de facto relationship?

When you get married you are automatically entitled to a swathe of protections, rights and responsibilities which provide guidance in the event of a relationship breakdown, a partner losing capacity, or the death of a partner. However, you do not need a marriage certificate in order to enjoy many of the legal benefits of a marriage. If you are in a de facto relationship then you and your partner are entitled to many of the same rights and protections as a married couple.

To determine whether your relationship can be considered de facto, it must meet the following criteria:

• Both partners must be 18 years or older
• Neither partner can be in a marriage or registered relationship with a third party
• Partners cannot be related by family
• The relationship must include a financial or personal commitment or support of a domestic nature made by at least one partner to the benefit of the other

On a federal level, de facto relationships are only recognised when the partners are living together, but you are able to register a relationship within the state of Victoria regardless of whether you and your partner share an address. Although you can formally register a relationship in Australia without getting married, your relationship does not need to be registered in order to be considered de facto.

If your relationship can be considered de facto, you may have some queries about the rights you have both during the relationship and in the event of relationship breakdown. Should you experience a significant change in the nature of your de facto relationship, it is best practice to consult a lawyer as they can represent your interests and ensure you receive the protections you are entitled to.  

 Am I liable for spousal maintenance?

If there is a significant disparity between your income and the income of your former partner on the date of separation, you may be liable to pay spousal maintenance after you separate, though this is known as de facto partner maintenance when there is no marriage. De facto partner maintenance functions to ensure both persons in a partnership are able to meet their living expenses after the relationship breaks down, so if your partner had been relying on your income for their living expenses then they may be entitled to continue using a portion of your income post-separation. Maintenance will need to be paid if the court determines that you have the capacity to pay and your former partner has a need to be paid. 

The extent of support is determined on a case-by-case basis and will be dependant on what is considered reasonable living expenses and the financial position of both partners. When the court is deciding on payments, these factors will be taken into consideration:

• Your age and health
• Your financial resources, including wage and property
• Your ability to work
• Whether the relationship affected your ability to earn an income

The payment amount will also be affected if you and your partner have children under the age of 18 or adult children with a disability as the court will take into consideration which parent is the primary caregiver.

Applications for de facto partnership maintenance must be made within 2 years of relationship breakdown and payments will be stopped if the person receiving payments enters into a new partnership or marriage.

Can my de facto partner take my superannuation?

Superannuation within a de facto relationship functions in the same way as it does for a marriage, so your former partner may be able to access your superannuation.

You and your partner can make a superannuation agreement to determine how superannuation received by either partner will be split post-separation, this will give you more control over your superannuation should your relationship breakdown. If you make an agreement that complies with superannuation laws then it is binding, meaning:

• The trustee of the fund is required to implement it
• The court cannot make a decision about the superannuation interest that is dealt with in the agreement

You should contact a lawyer if you choose to make an agreement as a lawyer will ensure the agreement complies with the law and is in your best interest. An agreement can be made during the relationship or after relationship breakdown.

If your de facto relationship has broken down and there is no agreement in place then the court can choose to split your superannuation as part of a property settlement order. Any court order made regarding your superannuation is binding and the trustee is required to implement it.

Am I entitled to a share of the estate if my partner dies without a Will?

The estate of someone who dies without a Will has their assets distributed in accordance with intestacy rules. As these rules include de facto partnerships within the definition of spousal relationships, de facto partners are entitled to the same rights and benefits as people within a marriage. This means that if your partner dies without a Will, then the distribution of their estate will be dependent on whether they had children.

• If your partner has no children, or their children are from your relationship, then you are entitled to the whole estate
• If your partner had children from another relationship then those children may be given shares in the estate

If your partner dies without a Will then you should seek legal advice as soon as possible to determine whether you are entitled to a portion of the estate, or whether you need to make a family provision claim.

At Le Brun & Associates, our dedicated team of family lawyers can help you realise and protect your rights within a de facto relationship. We provide sound and knowledgeable advice with the highest level of service to ensure you are not taken advantage of. Contact us today for your FREE 30-minute consultation. At Le Brun and Associates, we always stand by you.

Partner Separation During COVID-19: Know Your Rights

The COVID-19 pandemic has fundamentally changed our day-to-day lives, affecting small things like how we shop and large things like how we work. This has understandably placed a great deal of stress on relationships, with data from Relationships Australia suggesting that 42% of people have experienced negative changes in their intimate relationships. Divorce rates are likely to increase post-lockdown as a result, so if you are now preparing to separate from your partner, you are not alone.

It is a confusing time to be considering leaving your partner and, for people who have already left their partners, it can be tricky to navigate the arrangements made pre-COVID regarding finances and childcare. But even though the world around you has changed, your rights have not. Having a lawyer by your side at this time is very important, as a lawyer can help you:

• Gain access to emergency funds
• File for an intervention order
• Walk you through remote hearings
• Ensure you retain access to your children

Having a lawyer on your side is the only way you can make sure your rights are maintained as you go through the process of separating from your partner. If you feel trapped in your current financial and living arrangements, or if you are struggling to maintain contact with your children, a Family Law Solicitor can help you regain your feet and gain your rights.

Accessing Funds

When you live with your partner and share funds, it can be difficult untangling your life from theirs once you have decided to separate. This situation can be made worse if you need to leave the property you share with your partner or need money to finance your life post-separation. The pandemic may have put further stress on your finances through its toll on the economy and working Australians, making accessing your funds even more vital. A lawyer is essential in handling these situations, they can negotiate with your former partner or their representatives to secure access to funds, apply to the court for urgent orders to seek a release of funds, and secure any money you are entitled to by way of property settlements. You have a right to remain financially secure after separating from your partner, hiring a lawyer can ensure that you are not taken advantage of.

Contacting Children

Rules and restrictions around travel and social contact have been put in place by the Victorian Government to help stop the spread of the coronavirus, although these rules can stop you from seeing your friends, they cannot stop you from seeing your children. The childcare arrangements you had with your partner before lockdown have not been changed in light of the pandemic, your rights remain the same. If your former partner is trying to restrict your access to your children, they are infringing on your rights. Hiring a lawyer is the most effective way to gain your rights as a parent as a lawyer can communicate with your former partner on your behalf and take your case to the family court if they continue to deny your visitation rights.

Getting a Hearing

You may think the lockdown has resulted in the courts being closed, but this is only true on a physical level. All courts remain operational, though hearings are now being conducted online as opposed to in the courthouse. A lawyer will help you get your matter heard by the court; we have the set-up required for virtual hearings. Some court procedures have been changed due to COVID-19, including the process for obtaining an intervention order, lawyers can help you navigate these changes and inform you of all your options.

At Le Brun & Associates, our dedicated team of Family Law Solicitors and Divorce Lawyers can help you navigate the complications associated with your separation with confidence and meet your urgent needs to seek clarity so you never feel alone. We provide sound and knowledgeable advice with the highest level of service to ensure that you get the best possible outcome from your separation. Contact us today for your FREE 30-minute consultation. At Le Brun and Associates, we always stand by you.