Applying for Court Orders

Where a couple cannot agree on arrangements after their separation, either of them can apply for orders under the Family Law Act. The basic principles which a court will apply are set out below.

Residence of Children

The court will take the view that the primary consideration in determining where a child lives is what is in the best interests of that child. The Court does not have preferences for fathers or for mothers, or in relation to religion, race or any other matter. Residence can even be given to a person who is not a parent of the child.

Contact with Children

Again, the court will be primarily guided by what it sees as being in the best interest for the welfare of the child. However, the court generally takes the view that a child or children spend regular time with parents is desirable.

Occupation of the Matrimonial Home

An order to enable one party and the children to have sole occupation of the matrimonial home can be made in special circumstances, particularly if there is no other reasonable accommodation available and if it is clearly in the children’s best interests for them to reside in the matrimonial home. However, such orders are usually made on a temporary basis until there has been property settlement between the parties.

Property

The court can make orders about property settlement and can even change the legal title to property where that is appropriate. The court is guided by considering the contributions to property made by each party (including the ‘home maker’ contribution of a non-working spouse or parent) and the needs of each party (including the need to provide a home for the children of the marriage).

Maintenance

Both parties are equally responsible to financially support each other (where necessary) and the children. The following principles apply:

• The obligation to pay maintenance takes priority over all expenses of a party to a marriage except for those expenses needed for the ‘support’ of that parent.
• The court is required to ignore the fact that the party applying for maintenance may be eligible for, or actually receiving, an income support payment from Centrelink. The court is also able to make urgent orders for maintenance.
• The Child Support (Assessment) Act provides the rules and proceedings for obtaining maintenance.

Peace and Privacy

The Court can make orders restraining the behaviour of one party if there is a threat to the safety, peace or right to privacy of the other party or of the children.

Temporary Protection of Assets

The Court can make interim orders to protect assets from sale or destruction (or other threats) until it is able to properly consider property settlement or maintenance matters.