QUESTION
Client is Carlos Santiago and lives in a semi-detached house at 21 West Street, Brighton [your state/territory]. Client and spouse bought the home with a mortgage to a bank and are still paying off the mortgage.
Spouse is Gabriella Santiago. Parties were married in a civil ceremony in Hobart, Tasmania on 12 October 20xx-8. Neither of them had been married before but client had lived in a de facto relationship for 5 years, which ended 2 years before the marriage.
Client has 3 children, Pablo born 25 June 20xx-11 (from a previous relationship), Juan born 10 February 20xx-7 and Dora born 31 October 20xx-3. All three children lived with the parties and are now with spouse. The older two children attend the local primary school where they are doing very well. The youngest Dora has a hearing and speech disability but the extent of her disability is worrying, as the medical specialists can’t seem to agree about its extent. Spouse’s mother always cared for Dora at her home while parties were at work.
Client was born in Spain on 11 July 20xx-40. Client came to live in Australia with his family when client was 10 years old. Spouse was born on 24 April 20xx-30 in Tasmania.
For the last eighteen months or so, the marriage has been strained. Client began to think that spouse was suffering from health issues as she appeared to be taking numerous pharmacy medications and natural health remedies. Client questioned her about it but spouse would not discuss.
Client and spouse finally separated about three weeks ago after spouse left following client quizzing her again. Spouse is now living with her mother, as are the children.
Client is a sales representative for a multi-national company working on a commission basis. Client’s income is average but it does fluctuate – this year it should be $65,000 per annum plus commission.
Spouse work part-time as a receptionist during school hours over 4 days at an office in an industrial park. Client thinks spouse earns about $650 per week before tax which about $33,000 annually.
Since client separated, he has not discussed money with spouse. Not sure if he should keep paying the mortgage. Last week client gave spouse about $500 cash to help her out.
Client seeks advice on the following issues:
Draft a memo of advice to the client (no more than 1,000 words) addressing the advice sought by the client and covering- key legal and non-legal issues, documents that the client needs to give to you, documents that you need to give to the client, further information that you require, dispute resolution procedures that apply under the legislation and court rules, and next steps.
SOLUTION
Recipient: Carlos Santiago
Sender: (Your name)
Date: 14/05/2023
Re: Advice on Arrangements for the Children and Dispute Resolution options.
Good Morning Carlos
1. Arrangements for the Children
As you separated from your spouse three months ago, it is essential to establish the necessary arrangements for the care of your children. This is important to consider before applying for Parenting Orders under Section 65C of the Family Law Act (FLA) (FCAWA s 88).
It is advisable to first work collaboratively with your spouse to develop a parenting plan, as set out in FLR Sch 1 Pt 2 cl 3(1)–(7) (FCRWA Sch 1), that outlines how you will both share parental responsibilities and parenting time. This parenting plan should include discussion on matters such as how the children will spend time with each parent, where they will reside, and how decisions concerning their care, welfare, and development will be made.
It is crucial to remember that you should try to settle any parenting conflicts through family dispute resolution (FDR) or mediation before asking the court for a parenting order. An impartial, licensed, and registered family dispute resolution practitioner (FDRP) who is bound by the FLA facilitates the FDR process. These responsibilities include delivering guidance or assistance with parental responsibility (s. 63DA(1)), offering advice on topics about a child (FLA s. 60D), and offering counsel in connection with the creation of a parenting plan (s. 63DA(2)). Before requesting a parenting order from the court, it is advised that you work with an FDRP to help you and your spouse resolve any parenting conflicts.
2. Child support for the Children
You will be responsible for supporting your three children financially. According to FLA s. 61DA(1) (FCAWA s. 70A), the court must take into account the presumption that both parents sharing equal parental responsibility for the child is in his best interests. Consequently, parents must support their children financially. The method used to determine child support responsibilities often considers the parent's income, the number of children involved, and the length of time each parent spends with the kids. The nature of both parties' incomes will be considered by the court when deciding the right amount of child support to be paid. In this case, you work on a commission basis and earn $65,000 per annum in addition to the commission, while your spouse works part-time as a receptionist during school hours over 4 days at an office in an industrial park, earning $33,000 annually. Additionally, the court will also consider your joint assets, including your semi-detached house which has been purchased with a mortgage from a bank, and for which you are currently making mortgage payments. In the event you are unable to agree on child support, you may need to seek assistance from the Child Support Agency or the Family Court of Australia to have a child support assessment carried out. This assessment will consider the relevant factors and determine the appropriate amount of child support to be paid.
3. Dispute Resolution Options
There exist several dispute resolution options, such as mediation, conciliation conference, or family dispute resolution (FDR), available to parties involved in a dispute. The dispute resolution event must be conducted as early as possible and usually no later than 5 months after the date of commencement of the proceedings unless there are exceptional circumstances. The procedures and requirements associated with court-based dispute resolution are described in the Federal Circuit and Family Court of Australia Central Practice Direction. This includes a conciliation conference, a judicial settlement conference, or court-based FDR. At any time during the proceedings, the court may refer a matter to a court-based dispute resolution conference, which can be convened face-to-face or by electronic means, including Microsoft Teams or other electronic media, such as telephone.
4. Documents Required
A certificate from an FDRP, a genuine steps certificate, a notice of child abuse/family violence/risk, a parenting questionnaire, an undertaking as to disclosure, and a copy of any family violence order affecting the child or a family member are among the additional documents that must be filed with an initiating application (family law) in parenting proceedings according to FLR r 2.01(5).
Do not hesitate to get in touch with me if you have any additional queries or worries.
Kind regards,