I separated from my husband in December, we have a car loan for the family car which I have driven for the last 5 years

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Customer: I separated from my husband in December, we have a car loan for the family car which I have driven for the last 5 years in his name. There is 2 years left in the loan He doesn’t want to pay the loan
JA: What steps have you taken? Have you filed any papers in family court?
Customer: I can’t afford to pay the weekly amount no not yet we are about to attend our mediation appointment next week
JA: Family law varies by state. What state are you in?
Customer: qld
JA: Anything else you want the Lawyer to know before I connect you?
Customer: we have started 50/50 custody and all my payments from Centrelink have dropped as well as child support. My hours were reduced at work due to caring for our son and he could not attend main stream school so I home schooled ... I also have a daughter with Down syndrome who I look after
Answered by John Melis in 11 hours 2 years ago
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John Melis
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John Melis, Expert

Hi, I’m John, solicitor, and reviewing your post, and may need to ask a few questions a long the way to assist you.
Concerning your important comments, what is the outcome you would like to see result.
Customer
Hi john
Thank you for getting back to me.
I'm just wondering I can't apply for divorce until 22/12/2020
Can you tell me how that works and if I'm entitled to his super? That's all we have other than the car that's in his name
He wants me to either pay the car off myself with a new loan.
Sell it and pay out the loan which we won't cover given what's owed.
Or the small amount of child support he pays he will put in the car and I pay the balance over the next 2 years and he will put the car in my name. But I don't trust him to do this at the end of the loan.
We have just this week gone 50:50 time with our son, therefor my child support, carer payment and FTB payments have all dropped
I only work 10 hours a week due to both children (my daughter from a previous relationship) having disabilities
I'm not sure what to do!
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John Melis, Expert

Where the relationship has broken down, there are a couple of steps that may be taken. If not done so already, mediation can be used to consider reconciliation through relationships Australia. If that does not achieve an outcome the next step is to consider starting the formal process of financial separation.

Financial separation involves having all the assets total into a pool, and then a division is decided upon who gets what percent, for example you may get 70% and your partner 30%. In determining the percentage split all factors are taken into account which include direct and indirect contributions.

The aim should be to settle the financial aspect amicably without processing the matter in court whether it be the Federal Circuit Court or Family Court when children are involved.

Separation can occur under one roof, which means you do not need to leave the family home.

If separation cannot occur amicably it will need to proceed into the court.

If you are facing domestic violence you may want to consider have a family violence order put into place your safety.

Financial separation involves various aspects with alteration of property interests under section 79 of the Family Law Act 1975. Financial separation will usually take into account four facts:

[1] The process will consider the extent of the property of the parties and its value.

[2] The process will consider what contributions have been made by the parties, including direct and indirect contributions of a financial character and non-financial character, and contributions to the welfare of the family, including contributions as homemaker and parent.

[3] The process will consider the circumstances which relate to the present and future needs of the parties and to their means, resources and earning capacity, actual and potential.

[4] The process will consider the effects of points 1 to 3 and resolve what order is just and equitable in all the circumstances of the particular case.

Alteration of property interests between separating couples is an emotional and stressful process and seeking help early is important.

The first step with financial separation is putting together a list of all the assets, and where you are not sure what they are you will need to do a little bit of investigative work to complete list.

Once you have the list ready, the next step is to either commence the process with the forms from the Federal Circuit Court’s website, or with the assistance of a lawyer.

If the financial separation process is done on an amicable basis the matter should be resolved within 3 to 6 months.

The important aspect of the financial separation process is documenting the division of the assets in a binding financial agreement or by consent orders which can be stamped by the court making it a more solid agreement to end the matter.

You have a legal right to protect your interests in this situation.

Please use the following link to assist you with working out how the division of the asset pool is calculated:

http://classic.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s79.html

You will have a right of claim on behalf of your children.

The Child Support (Registration and Collection) Act 1988 (Cth) (“CSRCA”) regulates how outstanding child support liabilities are to be collected.

Where a parent is behind in child support payments, the DHS will contact that parent to discuss the situation. The Department of Human Services has powers under its legislations to recover overdue child support through the following ways: garnishing payee parent’s wages; garnishing tax returns; deducting payments directly from a parent's bank account; deduction from Government Benefit payment; court proceedings; restraining the liable parent from leaving Australia.

The applicable legislation is the Child Support (Registration and Collection) Act 1988 (Cth).

The Child Support Registrar has specific powers to aid enforcement, specifically:

− s 72A Collecting child support related debts from a third person

− s 72AA Deductions from social security pensions and benefits

− s 72AB Deductions from family tax benefit

− s 72AC Deductions from veterans' pensions and allowances

− s 72AD Deductions from parental leave pay

− s 72B Person receiving or controlling money of a debtor who is outside Australia

− s 72C Seeking a court order to set aside a transaction to defeat maintenance liability

− s 72D Registrar may make departure prohibition orders.

A child support debt, a debt occasioned due to non payment of a registered maintenance liability, is a debt to the Commonwealth, as opposed to the payer, and is recoverable by action taken by the Child Support Registrar: s 113; or by the payee: s 113A.

The DHS we will work with other Government Departments where a parent is hiding their true levels of income.

What you will need to do is complete a formal application with DHS and they will commence the process of the collection against the father for the non-payment of child support.

Both the Family Court and Federal Circuit Court have jurisdiction under the Act: s 104. Generally, an enforcement application would be issued in the Federal Circuit Court.

The law will be enforced to protect your children’s financial support.

Would you like to consider this option.

​Thank you for reaching out today.

You have a legal right to protect your interests in this important situation.

I am a user like you in this chat forum to assist in your important question today.

Thank you kindly for rating me with 5 stars, which helps me support the community.

You can come back to this post any time to ask questions without additional charge.

I hope I have assisted with answering your important question today, and thank you for supporting the community.

Customer
Thank you
So how do I go about the car at this time? We are in mediation at the moment but not to reconcile, we live apart already, mediation is for a An agreed parenting plan.
He will take the car from me if I don’t decide soon.
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John Melis, Expert

You can keep the car in your possession for the time being

Customer
he has no right to take it and he just keep paying the car loan is that correct?
And the loan is solely in his name
Does he have the right to make me pay anything on the loan if the car is for my and the children's use?
Customer
Hi
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John Melis, Expert

you are correct there are limited rights
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