Memorandum of Advice: Family Law Issues of Bradley's Family - 2018

This memorandum of advice provides a legal analysis of Bradley's family law issues, focusing on child custody, property division, and spousal support within the context of the Australian Family Law Act 1975. The memorandum addresses the specific concerns of Bradley, including his desire for full custody of his daughter Rosie, preventing his wife from removing Rosie from the country, protecting his inheritance, and avoiding spousal support payments. It examines the relevant legal principles concerning parental responsibility, spousal maintenance, and property adjustment, outlining the factors the court considers when making decisions. The analysis emphasizes the importance of the child's welfare, financial contributions of each party, and the court's discretionary powers to ensure just and equitable outcomes in family law disputes. The memorandum also discusses the steps involved in property division, including asset identification, valuation, and consideration of future needs.

Family Law Memorandum of Advice 1
Family Law Memorandum of Advice
Student by (Name)
Professor’s (Name)
College
Course
Date

Family Law Memorandum of Advice 2
MEMORANDUM OF ADVICE
TO: ANTHONY PRATT (PRINCIPAL LAWYER)
FROM: A GRADUATE LAWYER
DATE: 4TH MAY, 2018
CASE NO:
RE: LEGAL ADVICE ON THE ISSUE OF CHILDREN AND PROPERTY OF BRADLEY'S
FAMILY.

Family Law Memorandum of Advice 3
INTRODUCTION
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) 19752. It is
federal legislation that works in all states and territories.3 The jurisdiction is enforced by the
1Rachel 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.
2Renata Alexander, Domestic violence in Australia: The legal response. Federation Press, 2002.
3Renata 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.

Family Law Memorandum of Advice 4
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.
QUESTION PRESENTED
Matters that are in dispute in Bradley’s family
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
4Nola 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.

Family Law Memorandum of Advice 5
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.
FACTS
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.
Parental responsibility
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:

Family Law Memorandum of Advice 6
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.
When the court is giving orders concerning the child, it must take into consideration the welfare
of the kids and ensure that orders are at the best of their advantage.
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.
Spousal Support

Family Law Memorandum of Advice 7
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:
i. The age and condition of the wellbeing of every one of the parties;
ii. Their particular salary, property, and monetary assets;
iii. Their ability for suitable beneficial business;
iv. An obligation for the care and support of any children or different people;
v. The degree to which one party may have added to the income, earning
capability, property or money related assets of the other parent;
vi. The duration of themarriage or relationship and its effect on the procuring
limit of each party;
vii. A way of life for each party which is sensible in the conditions.
viii. If either party is living together with someone else, the money related
conditions of that cohabitation.
ix. The qualification of either party for an annuity, remittance or advantage.
x. The superannuation privileges of either party.

Family Law Memorandum of Advice 8
xi. The need to ensure a party who wishes to proceed with the part of the
parent.
xii. Liability for child maintenance and support.
xiii. The impact of any request on the earning limit of a party.
xiv. 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.
Property Adjustment
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
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

Family Law Memorandum of Advice 9
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:
i. 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
ii. 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.
iii. The impact of any proposed order on the salary or the earning capacity of
the parties.
iv. The matters set out about the determination of the maintenance to the
extent that they help to the property division.
v. 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
6 Bridge, Jane, et al, A practical approach to family law. OUP Oxford, 2012.
7 AUSTRALIA. (2007). Annual report. Canberra, Commonwealth Govt. Printer.

Family Law Memorandum of Advice 10
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.
10Finally, 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
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.

Family Law Memorandum of Advice 11
- 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.
Legal Advice to the Client
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.

Family Law Memorandum of Advice 12
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.
DISCUSSION AND ANALYSIS OF FACTS
How the Court obtains Information if this particular matter regarding Bradley’s
family Matter is contested
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
14GeraldKoocher and Keith-Spiegel Patricia, Children, ethics, and the law: Professional issues and cases. Lincoln
Nebraska: University of Nebraska Press, 1990.

Family Law Memorandum of Advice 13
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
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.
17

Family Law Memorandum of Advice 14
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.
Court Process regarding Bradley’s case
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
18Claire 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.
19

Family Law Memorandum of Advice 15
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

Family Law Memorandum of Advice 16
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. ;

Family Law Memorandum of Advice 17
(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:
i. 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.
ii. 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.
iii. The effect of any proposed order on the pay or the earning limit of the parties

Family Law Memorandum of Advice 18
iv. The matters set out about the assurance of the upkeep to the degree that they help
to the property division
vi. 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

Family Law Memorandum of Advice 19
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:
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Family Law Memorandum of Advice 20
Eden, Philip, Estimating child and spousal support: economic guidelines for judges and
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Family Law Memorandum of Advice 21
Jones, Ben, "Children and the law: The complexities of recognising the rights of children in a
family law setting." Every Child 21.2 (2015): 36.
Koocher, Gerald P., and Patricia Keith-Spiegel, Children, ethics, and the law: Professional issues
and cases. LincolnNebraska: University of Nebraska Press, 1990.
Kruk, Edward, The Equal Parent Presumption: Social Justice in the Legal Determination of
Parenting After Divorce. McGill-Queen's Press-MQUP, 2013.
Livingstone, Stephen, et al, Prison law. Oxford University Press on Demand, 2008.
Mantle, Greg, 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.
Mitchell, Liesl. "Domestic violence in Australia: an overview of the issues." (2011): 42p.
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Family Law Memorandum of Advice 22
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