• Subject Name : Law

Family Law Rules - Question 1

a) Disputes relating to marriages and family matters within Australia are primarily governed by the Family Law Act 1975 along with numerous other legislative rules such as the Family Law Rules 2004. Section 61D of Family Law Act 1975 speaks about parental orders and parental responsibility where various duties, powers, responsibilities and authorities are conferred in relation to the child based on the specifications of the case at hand.[1] It is important to note that a parenting order by no means diminishes any aspect of parental responsibility of any person unless it has been expressly provided for in the order or it becomes necessary over time to give effect to the provisions contained in the parental order. Section 61DA further provides that it is a basic presumption for the courts of law within Australia that equal shared parental responsibility for the child would be maintained, albeit keeping in mind the best interests of the child.

Considering the case of Brian and Clare, it would be important to go back to the initial days when they started dating and decided to eventually move in together 2011. Brain started contributing a quarter of Claire’s house rent despite them having separate accounts. While Clare paid for the couches and the new dining table, Brian paid for the groceries. Moving onto October 2011, Brian started working in Sydney and both of them decided to open a joint account where each o them would put in money for the joint expenses they had. Subsequently, Brian started contributing equally to the rent and even began discussion about buying a house together. Regarding the IVF process, Brian and Clare had mentioned separately to the psychologist that they were in a loving committed relationship and were keen on raising a child together. Having given birth to Charlie, Clare and Brian moved to Penrith where Brian paid the money for the deposit of the new house. However, they gradually began to distance from each other, especially in terms of how it was becoming difficult to readjust to life in Sydney.

In terms of the areas that the final parenting order would address, several clauses are mentioned within the Family Law Act in terms of ensuing in a legally enforceable arrangement. While Brian’s commitment to the initial phases of the relationship would be considered, it would also be important to factor in the causes behind them distancing during the later stages. Brian made it known to Clare that he had met someone while she was in Canberra, something which Clare believes that occurred long before that. The crux of the areas that parenting orders consider relate to live with orders and time with orders.[2] Based on the specifications of the case, the court would inherently enforce a live with order where Charlie and his responsibilities are given to Clare. It would largely be decided by the fact that although Brian and Clare had thought of conceiving Charlie together through the IVF process, Claire had been far more committed towards Charlie even during the IVF process and after he was born.

The time with orders would possible allow Brian to meet Charlie on the weekends, since it was in the best interests of the child. Charlie has always known Brian as ‘dad’, and enforcing a complete separation could be detrimental for the child’s growth over time. Parental responsibility orders would also be a key area of consideration within the final orders, especially in terms of taking care of Charlie and ensuring that he is made to avail all the necessary facilities and amenities as he would grow up. The case of Gronow v Gronow - [1979] HCA 63 is important in this regard, where the preferred role of the mother was not given preferential choice over the facts of the case and the specific circumstances.[3] Based on the judgement and the provision contained in the Family Law Act, the parenting orders would essentially confer the parental responsibility in terms of decision making onto Clare since the facts state that she in fact had taken care of Charlie to a greater extent as compared to Brian, albeit Brian had supported her financially and in other ways throughout the discourse.

However, Clare was worried about letting Charlie visit Brian in the presence of his new partner, especially since Brian was gradually losing interest in Charlie and his new partner even mentioned hurtfully how Charlie was not his biological child anyway. In terms of the moving rights, Brian was keen on seeing Charlie and mentioned to Clare that he would see her in court immediately if she tried to move to Canberra. Brian mentions that he wants to see Charlie 5 to 6 times a fortnight and also should be involved in making long term decision about Charlie. However, Clare wants to move to Canberra if she would have to allow Brian to see Charlie. Clare also mentions that she was willing to travel to Sydney more frequently if the need be so. Based on the requirements or Brian and Clare and the facts of the case, the final orders would allow Clare to move to Canberra keeping in mind her current financial conditions and how she was willing to travel to Sydney so that Brian could see Charlie. Considering the long term responsibilities of Charlie, the court would naturally provide the majority of the power to Clare while Brian could be consulted and notified regarding any major decisional changes such as schooling or education.

b) Based on the facts of the case regarding Clare’s prospect in applying for an interim order that allows her to shift to Canberra as soon as possible, it would feasible for the courts to agree with her requests especially keeping in mind how she was facing difficulties in financially surviving without Brian’s help. Taking care of Charlie also limited her prospects of getting the job at the Department of Education, and the Penrith house that she was currently residing in was being paid out of the income of Brian. Furthermore, Clare’s parents had a granny house in Canberra where Clare could reside with Brian without any financial implications in the short run and it would also be beneficial towards Clare to look for job opportunities in the city. The case of R v Thomas [2006] VSCA 165 is relevant in this regard, where the appellant was allowed for an interim order to shift cities based on the best interests of the child.[4]

Keeping in mind the facts of the case, precedents and the best interests of the child, Clare would stand a considerable amount of chance to obtain the order of moving into Canberra primarily because it would be more feasible for Charlie. Brian had a new partner who anyway looked down upon Charlie since he was not Brian’s biological child. Naturally, any confrontation involving Brian and his new partner and Charlie and Clare could have significant negative impacts on Charlie, something which the court would inherently try and avoid.

Family Law Rules - Question 2

a) Moving onto the financial implications of Brian’s and Clare’s separation, the first area of consideration would have to be how Australia a country where equitable distribution in case of matrimonial separations is upheld. It is provided for under Section 79 of the Family Law Act 1975. While it extends to married couples, Brian and Clare would be considered as a de facto couple based on the existent legislation within Australian Capital Territory. The community property regime would also be applicable, where upon separation; half of the property owned by a parent would not come to be owned separately and distinct from the other parent in equal terms. More than 25 different statutory factors would have to be considered by the family courts in Australia to determine the distribution process in a just and equitable manner. Financial stability and economic dependence are key factors in this regard along with the payment of the legal fees for the process of adjudication.

Section 90 of the Family Law Act allows the parties to engage in a Binding Financial Agreement, where the distribution process is handled and enforced by the courts of law. However, most separated couples that reside within Australia do not comprise of a binding agreement in terms of financial distribution and most of the cases are adjudicated based on the just and equitable.[5]

The property at Penrith amounting to $600,000 would 100% be conferred onto Brian since the deposit was paid out of his income and the remainder of the sum for the house was also paid through by Brian. Considering Brian’s and Claire’s motor vehicles amounting to $5,000 and $7,000 respectively, both the assets would be transferred to Brian and Clare respectively 100% since they were not paid for jointly and owned individually. The accumulation of the superannuation fund would also be transferred to the parties individually, where Brian’s funds amount to $64,000 and Claire’s funds amount to $32,000. The joint bank account funds amounting to $4,000 would ideally be conferred onto Clare 100% keeping in mind her poor economic conditions and the requirements to pay the legal fees of the adjudication process.

Moving on to the liabilities, the property mortgage for the townhouse at Penrith would be conferred on to Brian a 100% since Clare had no involvement in either the deposit money or the payment for the mortgage during the course of her stay. However, this could translate into limiting the financial help and any other maintenance charges that Brian would have otherwise required to pay in the context of their separation. The credit card debt of $10,000 would have to be paid by Clare 100% since she had accumulated the same through her gambling expenses. Regarding the unpaid rates of $2,400 and the Origin Energy Bill of $1,800, the payment of the liabilities would have to be handled by Brian and Clare equitably since both of them resided at the property and the charges would ideally have to be shared. Lastly, the amount of $40,000 in terms of the loan by Claire’s parents would rest 75% on Clare and 25% on Brian, since Brian’s work had led to an increase of the valuation of the house by $10,000.

References for Family Law Rules


"FAMILY LAW ACT 1975", Austlii.Edu.Au (Webpage, 2020) <http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/>

Case laws

"Barnet Jade - Find Recent Australian Legal Decisions, Judgments, Case Summaries For Legal Professionals (Judgments And Decisions Enhanced)", Jade.Io (Webpage, 2020) <https://jade.io/summary/mnc/2006/VSCA/165>

"Barnet Jade - Find Recent Australian Legal Decisions, Judgments, Case Summaries For Legal Professionals (Judgments And Decisions Enhanced)", Jade.Io (Webpage, 2020) <https://jade.io/summary/mnc/1979/HCA/63>


Ag.Gov.Au (Webpage, 2020) <https://www.ag.gov.au/sites/default/files/2020-03/Parenting-orders-what-you-need-to-know.pdf>

"Prenuptial Agreements In Australia: What You Need To Know | Canstar", Canstar.Com.Au (Webpage, 2020) <https://www.canstar.com.au/life-insurance/prenuptial-agreement/>

[1] "FAMILY LAW ACT 1975", Austlii.Edu.Au (Webpage, 2020) <http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/>.

[2] Ag.Gov.Au (Webpage, 2020) <https://www.ag.gov.au/sites/default/files/2020-03/Parenting-orders-what-you-need-to-know.pdf>.

[3] "Barnet Jade - Find Recent Australian Legal Decisions, Judgments, Case Summaries For Legal Professionals (Judgments And Decisions Enhanced)", Jade.Io (Webpage, 2020) <https://jade.io/summary/mnc/1979/HCA/63>.

[4] "Barnet Jade - Find Recent Australian Legal Decisions, Judgments, Case Summaries For Legal Professionals (Judgments And Decisions Enhanced)", Jade.Io (Webpage, 2020) <https://jade.io/summary/mnc/2006/VSCA/165>.

[5] "Prenuptial Agreements In Australia: What You Need To Know | Canstar", Canstar.Com.Au (Webpage, 2020) <https://www.canstar.com.au/life-insurance/prenuptial-agreement/>.

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