ANSWERS TO FREQUENTLY ASKED QUESTIONS Part 2

13. If one party is not paying child support can I stop that person having contact for this reason?

Generally no. Likewise if contact is being refused generally you still have to pay child support.

14. Do I still have to pay child support when the children are with me for contact for extended period eg. part of school holidays?

Yes.

15. My Wife/Husband is getting a pension or other Social Security benefit – can she/he still get spouse maintenance?

Yes, if she/he institutes proceedings for herself/himself the Court cannot take into account that pension.

16. Do Courts still make Orders for maintenance for a Husband/Wife?

Yes, if one party is not able to adequately support his or herself and the other party has the capacity to pay maintenance the Court may make an order for spousal maintenance. Most orders for periodic spouse maintenance are made soon after separation when one party is left with no income or other financial support.

17. What can I do if the other party is not providing me with any financial support?

You should seek legal advise in relation to the possibility of obtaining an urgent maintenance order against the other party.

18. Do we have to go to a hearing if proceedings are commenced?

No. In all matters involving financial disputes before the Court hears the matter the parties have to attend a compulsory conference with their respective legal advisers and a Deputy Registrar of the Court present. The purpose of the conference is for a bona fide attempt to be made to resolve the matter. At any stage during proceedings, even after the Judge has started to hear it the parties can agree to resolve the dispute and the Court can make Orders in terms of the agreement reached by the parties.

If we cannot settle the matter and we have to go to Hearing when will the proceedings be heard?

Generally within twelve months of commencing proceedings.

Will I have to go in the witness box?

Generally, yes.

19. How many cases go to Court for a Hearing?

Generally less than 5%.

20. Divorce .
Do I have to lodge any documents after I have separated to provide that I have separated?

No.

When can the proceedings be commenced?

After you have been separated for twelve (12) months.

Can we still be divorced if we are living together under the same roof?

Yes, but the Court will require independent evidence that you are in fact separated although living under the same roof. The Court looks at factors such as:

i. Are you continuing to share the same bed?

ii. Are you continuing to have a sexual relationship?

iii. Are you living separate lives under the same roof, i.e. not eating together, going out together or holding yourself to the outside world as being married?

When will divorce proceedings be heard?

Generally within 3 months after the application has been filed providing the other party has been served. There is then a period of one (1) month before the divorce becomes final.

What happens to my Will when I am divorced?

Your Will remains in force but on divorce any gift to the other party to the marriage ceases to have effect unless your Will specifically saves the gift. It is prudent for you to make a new Will.

21. What happens if we were only living together and not married?

A dispute about children of the relationship is determined in the Family Court. The Court is required to consider what is in the best interests of the child.

Financial support for the children – You can apply to the Child Support Agency for an assessment.

A dispute about property is determined in the District Court under the provisions of the Property (Relationships) Act 1984.

22. What is the procedure in Court?

The Family Court is like any other Court. The cases are heard by a Judge or Registrar.

If the proceedings are in the Federal Magistrates Court they will be heard by a Federal Magistrate.

When proceedings are commenced in the Family Court the parties are required to attend what is known as an Information Session, which is for the purpose of familiarising parties with the procedure in Court. If there is an issues about children, except for urgent cases the Court will not make an Order relating to the children until the parties have attended counselling arranged through the Family Court Counselling Service.

All parties must attend on each occasion the matter is on in Court.

23. Is there an alternative to Court proceedings?

Yes. Mediation. In some cases it is possible to reach agreement with the help of a mediator. We can discuss this with you and make arrangements for a mediation with an experienced and qualified mediator. Private mediators are available or there are also mediators in some organisations such as Interrelate or Centrecare.