The Law Handbook 2024

262 Section 4: Relationships, families and young people Procedure Intervention by the Attorney-General The Attorney-General is able to intervene by filing a notice giving reasons for the intervention and for any order that is sought. If the Attorney-General seeks to set aside a decree nisi , an affidavit must be filed setting out the facts and circumstances that have been relied upon. The notice and affidavit must be served on the other party to the proceedings. These documents can be served personally or by post. Intervention by other people Other people may intervene by filing an application stating: • their relationship to the parties to the marriage; • the reasons for the intervention; and • what court orders they are seeking. The application must be verified by an affidavit. The documents should be served on all parties who have appeared, or given their address so documents can be served by post (see ‘Service of documents’, above). If a court grants leave to (i.e. allows) a party to intervene, it may give directions about the further conduct and hearing of the proceedings. Property Proceedings under the FL Act for matters relating to the property of a couple can begin in the Magistrates’ Court or FCFCOA (see ‘Which court can hear matters related to children?’ in Chapter 4.2: Parental responsibilities and child support). NOTE Since 1 March 2009, the law permits people who have not been married but who have been in a relationship (including people in a same-sex relationship, which is regarded by the court as a de facto relationship) to apply for and obtain similar relief to that historically available to married people, in relation to the resolution of property and maintenance disputes. The parties need to have been in a relationship for two years (with exceptions) and separated after 1 March 2009. For more information on this topic see Chapter 4.3: Same-sex and de facto couples and families. Consideration of property matters may involve: 1 The FL Act gives the court the power to make declarations about existing land titles or rights to property owned by people, married or de facto, and to make allied orders (e.g. order the sale or partition or possession of property) to give effect to its decision. 2 The court has the power to alter the property interests of a party. Following separation, there is no waiting time for the issue of a property application. If proceedings are started and one party dies, the action against the estate can be continued. The court may also adjourn proceedings taken for property settlement if a significant change in the financial circumstances of one or both of the parties is likely. 3 Although the court is given a lengthy list of matters to be considered in the exercise of its powers, the remedy is discretionary and not limited by ordinary legal rights. The court is required to take into account a detailed number of matters, including: a the financial contribution made directly or indirectly by or on behalf of a party or a child to the acquisition, conservation or improvement of the property; b the contribution (other than a financial contribution) made directly or indirectly to the acquisition, conservation or improvement of the property by either party, including any contribution made in the capacity of homemaker or parent; c the effect of the proposed order on the earning capacity of either party; and d any other order made under the FL Act affecting a party. 4 The order for property may be set aside, varied or substituted if: a there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence or giving of false evidence or any other circumstance; b circumstances have arisen since the order was made that make it impractical for the order or part of the order to be carried out; c the party has defaulted in carrying out an obligation and in the circumstances it is just and equitable to vary the order;