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Matters that are in dispute in Bradley’s family

Discuss About The Justice Legal Deterominatin Of Parenting.

Sometimes if you can't fix it, you have to let go, is my precise and explicit anecdote for this particular case. No human being is perfect and so do the relationship and the marriages we engage into. Marriage can be the hardest stage in someone’s life because, without peace and understanding between the couples it can't prevail, it is premised on love and happiness, but on the way, and this may not reflect when the partners move along.  It is sometimes full of frustrations and irrationality but all the same, it can still be called marriage perhaps, because of the dynamics and the complexities associated with the case.[1] Now, basing my arguments on Bradley’s family issues of children and property, I want to categorically point out that the breakdown of a marriage or de facto (inclusive of the same sex) relationships can generate various matters or issues which may need some critical attention and resolution.  Some of these issues may be and not limited to: divorce, property adjustment, spousal maintenance, child support, parenting arrangements and adult child maintenance. Regarding the Australian Family Law, all of these matters except child support fall under the Family Law Act (FLA) 1975[2]. It is federal legislation that works in all states and territories.[3] The jurisdiction is enforced by the Family Court of Australia and the Federal Magistrates Court. But some parts like Western Australia has its individual Family Court but applies federal legislation in on matters about the mentioned ones.[4] Bradley’s family is riddled by a number of these issues that I wish to address in the following discussions.

Bradley was served with a legal order preventing him from living in his matrimonial house with his family, who were name as the protected members because his wife claimed that he was physically violent to them. The law states that if a partner is physically violent to their family, then he/she is given a court order to prevent them from getting near their family. Bradley wants her little child Rosie to remain in Australia and prevent his wife from moving her out of the country with his consent. Clause 40 part 1 states that both parents have the custody of their children who are less than 18 years, so Bradley claims that the wife cannot take Rosie out of the country without the approval of Bradley. He also want to have a full custody of Rosie and mend his relationship with Lily as well as spend more time with her. The family law act clearly outlines that at the time of separation between couples, both parties are entitled to be joint custodians of their kids who are below the age of 18. If either of the parents wants the full custody of their child, they must apply for an order in the court for the custody of the child. In that case, the law must investigate the welfare of the child and in that case, the wishes of the child are taken into account. If Bradley wants the full custody of Rosie, then he must apply for an order of custody before he is entitled as the full guardian of Rosie. He wants to sell his matrimonial home, protect his inheritance and prevent his wife from demanding for spousal support. The clause 51 of family law act demands that a partner should support the other partner so long as they are in a position to do so or if the other partner is not able to support themselves adequately or if they are not in a position to secure permanent employment. In accordance to Bradley’s case, he is in a position to support his wife, but his wife on the other hand is able to support herself financially, so Bradley will not be forced by the law to support her if he is not willing. But the court should use all the legal grounds regarding this matter their jurisdiction so that both parties are served justice and fairness.

The type of application that needs to be filled

I strongly believe that provisions of the family law act are important in this particular case. The family law act demands that both parties should take part in their parental responsibilities about children, shared property and spousal support in case of divorce.

In reference to the case of Bradley, he wanted to be the full custodian. It is a legal requirement that the spouses should share an equal responsibility to their children. The law requires that any partner who wishes to take the full responsibility of a child must fill an order for guardianship. He/she must also be financially stable enough to be able to support the child. Bradley would have been forced by the law to fill the guardianship order which must fulfill the following requirements:

  1. The welfare of the child is taken into account. In that case, the court should have considered if Rosie was safe to live with her father or not.
  2. The child’s wishes should also be considered. Rosie would only live with her father only if she was willing.
  3. A child’s wishes are only neglected only if he/she is less than 14 years or if the prevailing circumstances force demand so.

The court demands that the children’s guardians should take care of them irrespective of their status, whether they are divorced or remarried. The guardian can only support the child until he/she attains the age of 18 where the child has freedom of choice. However these parental responsibilities may still be extended if the child mentally handicapped. In Bradley’s case, he wanted to protect the child and prevent her mother from taking her out of Australia before she is 18. However, the child would have been in a better condition, if he/she is being taken care of by the both parents.

  1. Guaranteeing that the kids get parental support from both parents
  2. Protecting the kids from being mistreated or hurt physically, psychologically, or emotionally.
  3. Giving the kids the advantage of having both parents. Though Bradley wanted to live with Rosie, it was important that she gets parental support from both parents.

In marriage or a de facto relationship each party or spouse is obliged to help maintain the other party in the event that; one party is unable or cannot support and maintain herself or himself adequately and subsequently if one party has the capability of contributing and maintaining the wants of the party in need of the assistance. However, in assessing the capacity of a party whether he or she can support himself or herself, the Court has the legal ground to disregard income-tested pension to which that individual may having. If Court will exercise its jurisdiction they must consider menu factors highlighted in the Act encompassing the following:

  1. The age and condition of the wellbeing of every one of the parties;
  2. Their particular salary, property, and monetary assets;
  1. An obligation for the care and support of any children or different people;
  2. The degree to which one party may have added to the income, earning capability, property or money related assets of the other parent;
  3. The duration of themarriage or relationship and its effect on the procuring limit of each party;
  • A way of life for each party which is sensible in the conditions.
  • If either party is living together with someone else, the money related conditions of that cohabitation.
  1. The qualification of either party for an annuity, remittance or advantage.
  2. The superannuation privileges of either party.
  3. The need to ensure a party who wishes to proceed with the part of the parent.
  • Liability for child maintenance and support.
  • The impact of any request on the earning limit of a party.
  • Any other certainty or situation which the equity of the case requires to be taken into account.

For this particular case, the client (Bradley) should be served by the Court by the preempted legal aspects regarding spousal support, in the event Tamara the wife applies or petitions the Court for spousal maintenance. In which case, the Court is obliged to make a determination or jurisdiction based on the mentioned legal aspects. In my view, the wife is likely to petition the Court on this matter because she has some leverages including the children and the properties they share.

Parental responsibility

Australia has got a discretionary regime for the matters about the division of properties on the broken marriages. The law that equally extends to the breakdown of de facto engagements, including matters about the same-sex relationships.[5] Here the jurisdictional consideration and eligibility include the qualifying period of the relationship which is supposed to be at least two years, the presence of children in that relationship, the period or time of separation and certain demographical factors. The Court has the capacity and general powers to go against the interest of parties in their property and to make such decisions and orders as it regarded appropriate.[6] The discretion is limited and restricted only by the requirement that any single order must reflect or must be premised on justice and equity in particular occasions of the case. In consideration of what orders to make in the case of Bradley’s application, the Court should adhere to the following:

  1. The ratio of contribution by each party in acquiring, conserving or improving the property. These contributions can sometimes be made either financially or non-financially, directly or indirectly, or made by a single party or on behalf of a party.[7]
  2. Contributions concerning the welfare of the family made up of the parties and all children including all those made in respect of the homemaker or parent. They do not qualify to be tied to any particular assets and to be seen regarding substantial but rather not token.
  1. The matters set out about the determination of the maintenance to the extent that they help to the property division.
  2. Any liability either party may possess for the child support.

The property division is a quadruple step that calls for the Court to: identify and establish the value of all the assets in question and resources and quantify the liabilities of either party regardless of whose name they bear and their geographical location.[8] Each party has got an ideal mandate to give full, explicit and frank disclosure of all data or information concerning their financial aspects to the other party in the presence of the Court. Similarly, the assets should be liquidated (the value determined) to assess the contribution of each party.[9] The Court has to consider the financial resources, avenues and the future requirements of every individual party and any that matters in relation with justice and equity, to ascertain whether any excess contribution or adjustment is needed in favor of either party basing on the same menu factors. [10]Finally, the Court has to reflect back and evaluate or examine whether the orders proposed should be served by the contributions and the requirements of the parties are just and equitable in all circumstances.[11] Another additional step considers whether either party capable of receiving the spousal maintenance may be needed if the property division does not enable a party to take care of themselves adequately. The property in question is according to the client is the following assets, upon which the Court shall serve an order based on legal steps preempted.

  • The matrimonial house: $ 450,000
  • His superannuation with HESTA: $340,000 (last he looked)
  • Her superannuation with MAP: $3,500
  • His Mercedes Benz C63 2013: worth $75,000 (purchased brand new by the husband in 2013)
  • Her BMW 1 Series 2008: worth $7,000 (purchased brand new by the husband in 2008)

If the client maybe was applying for a divorce, then all of these are suppose to be addressed as part of the divorce, and once it is completed, there is no turning back in the future. For this matter it very important for the client to be legally advised before signing of any document that may bring controversies in the future.[12] Because once the process is finalized for instance the divorce the client if he signed any document in favor of his ex-spouse then actually he may probably not be able to reverse it in future.[13] Supposing the client was not divorcing but rather looking to divide common law property then in case of any mistake in signing the documents then still he can pursue the matter at the Supreme Court (Family Division) nearest him.

Spousal Support

Bradley should first of all look for legitimate guidance before choosing what to do next in his current situation. A legal advisor or a lawyer can enable him to comprehend his lawful rights and duties, and clarify how the law applies to his case. A legal counselor can likewise enable him to achieve a common understanding with the other party- the wife Tamara without going to court. He can look for legitimate counsel from a lawful guide office, community legal aid center or private law office. Court staff can help him with inquiries concerning court frames and the court procedure, yet can't give him lawful advice. Maybe if all these processes and procedures are unlikely to yield much for the client, the Court will settle the dispute by trying to adhere to the entire legal framework necessary for this particular case, and ultimately justice and equity will be served to the client.

Basing on Bradley's case, the Court may obtain the information they will rely on in dispensing their jurisprudence through; The Family Law Act 1975 (the Act) that will expect Bradley to get a certificate from an enrolled family dispute resolution specialist before he records an application for a request in connection to a child under Part VII of the Act.[14] Part VII of the Act covers applications for a few distinct kinds of requests identifying with children. The most widely recognized are applications for child parenting orders; that is, an application requesting that a court make orders about the parenting arrangements of the child (Rosie and Lily in Bradley's case).[15] If his application is an application for a child parenting order, at that point he should give a certificate with the application to the Court.[16] This necessity applies regardless of whether he has prior requests in connection with the child that is the subject of the present application. In any case, in specific conditions, the court may concede him an exception from the prerequisite to document a certificate. [17]

Under section 60I(9) of the Act, you can look for an exclusion from giving a certificate in the following  conditions: in the event that your issue is pressing in the event that the Court is fulfilled that there are sensible grounds to trust that: there has been a child abuse or potentially family viciousness by a party, there is a danger of family violence by a party, or potentially there is a danger of child abuse if there were to be a deferral in applying to the Court, where a party can't take an interest successfully in family dispute resolution (for instance, because of an insufficiency to do as such or physical remoteness from a family dispute resolution party),on the off chance that his application identifies with a charged contradiction of a current request that was made inside the most recent a year, and there are sensible grounds to trust that the individual who has supposedly repudiated the request has carried on in a way that demonstrates a genuine carelessness for his or her commitments under that request.[18] On application for exemption for any of the reasons above – In the Family Court, the client should either: get ready and record an Affidavit - Non-Filing of Family Dispute Resolution Certificate or, in the event that you are documenting an Initiating Application (Family Law) looking for between time orders in the meantime, he can incorporate a similar information in the affidavit statement that he should record with this application.[19] However, in the Federal Circuit Court, the client should either: get ready and record an Affidavit - Non-Filing of Family Dispute Resolution Certificate or, incorporate this information in the affirmation documented in the help of his application.

Property Adjustment

The court require that starting applications contain negligible information, for example, the important insights about the parties and the orders looked for in order to arrive at the most appropriate order. This implies it can now and again be hard to figure out what issues are in dispute even at the headings hearing. This can be a challenge if issues of child abuse are associated with the issue but are not unveiled to the registrar at the headings hearing or if there is a question of whether a legitimate party ought to be named for the child for different reasons. It additionally makes it hard to decide if a family report ought to be prepared. The methodology may along these lines render children imperceptible at the beginning times of the case.

The Family Court has set up a board of trustees to screen the workings of the processes. On the off chance that the care, welfare, and advancement of a child is pertinent to procedures under the Family Law Act, the court may coordinate a family and child counselor or welfare officer to set up the family of Bradley to give an account of such issues that the court thinks attractive. Family reports are set up in very nearly 60% of challenged cases including children that continue to trial. They are normally requested where the age and development of the child propose that he or she would be fit for articulating evidence and wishes and furthermore in situations where the child abuse is affirmed.

The instructor or welfare officer who arranged the report is for the most part required to be accessible for the round of questioning on it. Family reports are a helpful instrument and that their utilization is fundamental to the expression of the children support in issues that influence them. For some children, family reports give a reasonable path to the statement of their desires and feelings without troubling them with hard decisions. The Court is engaged to make child parenting orders in connection with the child. These orders may deal with any of the following:- The individual or persons with whom a child is to live; The time a child is to go through with each parent or different people; The portion of parental obligation regarding the child; Consultation about choices to be made about the child; Communications the child is to have with  both the parents or someone else; The procedure to be utilized for settling disputes about the terms or task of child parenting orders; and Any other part of the care, welfare or advancement of a child or of parental obligation.

Changes to the Family Law Act which produced results from 1 July 2006 have brought about an adjustment in way to deal with parental obligation, child parenting orders and court processes in child parenting cases. The changes are generally alluded to as the "common parental duty" or "shared child parenting" changes. Without any Court orders, each parent of a child under eighteen has parental obligation regarding the kid – and that duty isn't influenced by any adjustment in the parents' relationship, for example, division, separation or remarriage.

In Court procedures, there is an assumption (subject to a few special cases) that "equivalent shared parental obligation" is to the greatest advantage of a kid, and equivalent shared parental duty is presented by court orders unless the request explicitly gives otherwise. Level with shared parental duty expects guardians to settle on joint choices about major long-haul issues for a kid including training, religious and social childhood, wellbeing, name, and any progressions to a kid's living game plans that make it altogether more troublesome for the child to spend with a parent. In making orders in connection to child the Court must have respect to the objects of that piece of the Act managing children matters and its hidden standards.  The objects are to guarantee that the best advantages of children are met by:-

(a) Ensuring that kids have the advantage of both of their folks having an important association in their lives;

(b) Protecting kids from physical or mental damage, including from the presentation of abuse, disregard or family savagery;

(c) Ensuring that kids get sufficient and legitimate child parenting to enable them to accomplish their maximum capacity; and

(d) Ensuring that parents satisfy their obligations and meet their duties concerning their child.

The standards underlying the objects are that, with the exception of when it is in opposition to child best interests:-

(a) Children have the privilege and know and be looked after by both of their folks, despite whether their folks are married, isolated, have never married or have never lived together respectively. In spite of Bradley’s desires to have Rosie all for himself, he would deny her the motherly love, so it would still be better if she was looked after by both parents. ;

(b) Children have a privilege to spend time in a customary premise with both their parents and with other individuals worthy to their care, welfare and improvement (counting grandparents and different relatives);

(c) Parents together offer obligations and duties concerning the care, welfare and advancement of their children;

(d) Parents ought to concur about the future parenting of their kids. Bradley should have planned with Tamara about how they should raise their kids together despite of their divorce status; and

(e) Children have a privilege to make the most of their way of life (including with other individuals who share that culture)

On the other hand, the issues regarding the property and the financial adjustments in this particular case Court should:

  1. The proportion of commitment by each party in obtaining, preserving or enhancing the property. These commitments can some of the time be made either fiscally or non-monetarily, or made by a solitary party or for the benefit of a party.
  2. Contributions concerning the welfare of the family made up of the parties and any kids incorporating every one of those made in regard of the homemaker or parent. They don't fit the bill to be attached to specific resources and to be seen with respect to considerations but rather not token.
  1. The matters set out about the assurance of the upkeep to the degree that they help to the property division
  2. Any obligation either party may have for the child.

Conclusion

The Court has the capacity and general powers to go against the interest of parties in their property and to make such decisions and orders as it is regarded appropriate. The discretion is limited and restricted only by the requirement that any single order must reflect or must be premised on justice and equity in particular occasions of the case Assets should be liquidated (the value determined) to assess the contribution of each party. The Court has to consider the financial resources, avenues and the future requirements of every individual party and any that matters in relation with justice and equity, to ascertain whether any excess contribution or adjustment is needed in favor of either party basing on the same menu factors. Finally, the Court has to reflect back and evaluate or examine whether the orders proposed should be served by the contributions and the requirements of the parties are just and equitable in all circumstances. Another additional step considers whether either party capable of receiving the spousal maintenance may be needed if the property division does not enable a party to take care of themselves adequately. In the event of applying all the aforementioned processes and procedures band adhering to the issues in question, the client would be served justice and fairness will prevail.

References

Alexander, Renata, Domestic violence in Australia: The legal response. Federation Press, 2002.

Alexander, Renata. "Family violence in parenting cases in Australia under the family law act 1975 (Cth): The journey so far–where are we now and are we there yet?." International Journal of Law, Policy and the Family 29.3 (2015): 313-340.

Astor, Hilary, and Rosalind Croucher, "Fractured Families, Fragmented Responsibilities-Responding to Family Violence in a Federal System." UNSWLJ 33 (2010): 854.

Bano, Samia, ed, Gender and justice in family law disputes: women, mediation, and religious arbitration. Brandeis University Press, 2017.

Birnbaum, Rachel, Nicholas Bala, and Lorne Bertrand, "The rise of self-representation in Canada's family courts: The complex picture revealed in surveys of judges, lawyers and litigants." Can. B. Rev. 91 (2012): 67.

Bridge, Jane, et al, A practical approach to family law. OUP Oxford, 2012.

Conley Tyler, Melissa H., and Mark W. McPherson, "Online dispute resolution and family disputes." Journal of family studies 12.2 (2006): 165-183.

Cook, Kay, and Kristin Natalier, "Gender and evidence in family law reform: A case study of quantification and anecdote in framing and legitimising the ‘problems’ with child support in Australia." Feminist Legal Studies 24.2 (2016): 147-167.

Cooper, Donna M, "Pro bono mediation and the Federal Circuit Court of Australia in Brisbane: Lessons learned." Family Law Review 6.3 (2016): 230-237.

Easteal, Patricia, Lisa Young, and Anna Carline, "Domestic Violence, Property and Family Law in Australia." International Journal of Law, Policy and the Family (2018).

Eddy, B. I. L. L, "Who are high conflict people," Retrieved August 14 (2012): 2014.

Eddy, William, and JD Hon Susan Finlay, "Mediation in Domestic Violence Cases (W11)."

Eden, Philip, Estimating child and spousal support: economic guidelines for judges and attorneys. Western Book Journal Press, 1977.

Eekelaar, John, Mavis Maclean, and Sarah Beinart, Family lawyers: the divorce work of solicitors. Hart Pub Limited, 2000.

Eekelaar, John. Family law and personal life. Oxford University Press, 2017.

Elias, Stephen. Legal research: How to find & understand the law. Nolo, 2015.

Ferguson, Claire, et al, "Allegations of child sexual abuse in parenting disputes: An examination of judicial determinations in the Family Court of Australia." Journal of Child Custody (2018): 1-23.

Fernando, Michelle, "Family law proceedings and the child's right to be heard in Australia, the United Kingdom, New Zealand, and Canada." Family Court Review 52.1 (2014): 46-59.

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[1]Rachel Birnbaum, BalaNicholas and Bertrand Lorne, "The rise of self-representation in Canada's family courts: The complex picture revealed in surveys of judges, lawyers and litigants." Can. B. Rev. 91 (2012): 67.

[2]Renata Alexander, Domestic violence in Australia: The legal response. Federation Press, 2002.

[3]Renata Alexander, "Family violence in parenting cases in Australia under the family law act 1975 (Cth): The journey so far–where are we now and are we there yet?." International Journal of Law, Policy and the Family 29.3 (2015): 313-340.

[4]Nola Webb and MoloneyLawrie, "Child-focused development programs for family dispute professionals: Recent steps in the evolution of family dispute resolution strategies in Australia." Journal of Family Studies 9.1 (2003): 23-36.

[5] Cook, Kay, and Kristin Natalier, "Gender and evidence in family law reform: A case study of quantification and anecdote in framing and legitimising the ‘problems’ with child support

[6] Bridge, Jane, et al, A practical approach to family law. OUP Oxford, 2012.

[7] AUSTRALIA. (2007). Annual report. Canberra, Commonwealth Govt. Printer.

[8] UNIVERSITY OF ALBERTA. (2008). Family law administration: court services. Edmonton, the Institute, University of Alberta.

[9] Samia Bano, Gender and justice in family law disputes: women, mediation, and religious arbitration. Brandeis University Press, 2017.

[10] Jane Bridge et al. A practical approach to family law. OUP Oxford, 2012.

[11] Greg Mantle et al, "Whose wishes and feelings? Children’s autonomy and parental influence in family court enquiries." British Journal of Social Work 37.5 (2006): 785-805.

[12] Stephen Livingstone et al, Prison law. Oxford University Press on Demand, 2008.

[13] Kay Cook and Natalier Kristin, "Gender and evidence in family law reform: A case study of quantification and anecdote in framing and legitimising the ‘problems’ with child support in Australia." Feminist Legal Studies 24.2 (2016): 147-167.

[14]GeraldKoocher and Keith-Spiegel Patricia, Children, ethics, and the law: Professional issues and cases. Lincoln Nebraska: University of Nebraska Press, 1990.

[15] Edward Kru, The Equal Parent Presumption: Social Justice in the Legal Determination of Parenting After Divorce. McGill-Queen's Press-MQUP, 2013.

[16] Stephen Elias, Legal research: How to find & understand the law. Nolo, 2015.

[18]Claire Ferguson et al, "Allegations of child sexual abuse in parenting disputes: An examination of judicial determinations in the Family Court of Australia." Journal of Child Custody (2018): 1-23.

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