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Our team of expert family lawyers will help you through this tough period and ensure you and your loved ones get back on track with the right ongoing support and security. There is no definition of the typical Australian family. While the nuclear family (mum, dad, kids) still exists, the way society views family has changed. Families are now a mixture of the nuclear family, same-sex parents, step-siblings, single parents, etc. Regardless of the type of family you have, Family Law disputes are complex and highly emotional. They can have a lasting impact on children and young people.
Family Law introduction
In Australia, Family Law is dealt with at the Commonwealth level through the Family Law Act 1975 (Cth). Each state in Australia complies with the Family Law Act, however, the Family Law system is slightly different in Western Australia.
Western Australia operates differently because it has not referred its Family Law powers to the Commonwealth. This means that married couples are dealt with under the Commonwealth system, however, de facto couples are dealt with under the State’s system. This impacts on property settlement and parenting matters for de facto couples. The Family Court of Western Australia is the only court that deals with Family Law in Western Australia.
There are three components to Family Law:
- Parenting arrangements
- Property settlement
Before the courts will consider each component, they like to see that parties to court proceedings have attempted to resolve their issues. This is usually achieved through alternative dispute resolution such as mediation.
Family court matters are currently heard in the:
- Family Court of Australia (for less complex matters), and
- Federal Circuit Court of Australia (for more complex matters e.g. family trusts, etc).
These courts currently share an online service portal where your documents can be lodged and court fees can be paid.
The Attorney-Generals Department recently issued a media release announcing its intention to merge the two courts. The aim is for Family Law matters to be heard in the Federal Circuit Court of Australia.
There are a number of support services available for families experiencing breakdown e.g. counselling, domestic violence assistance, referral to mediation services, etc. Talk to our team to find out what services are available in your area.
There are two types of relationships, marriages and de facto relationships.
- No-fault divorce was introduced by the Family Law Act 1975 (Cth). That means you no longer need to prove that someone was at fault for the relationship breakdown e.g. through an extramarital affair.
- If your marriage breaks down in less than two years, the court will require you to complete mediation or marriage counselling before it will issue a divorce. Family violence may be an exception to this.
- You must prove that you have been separated for at least 12 months before you can apply for a divorce. This can be proven through separate utility bills, change of licence address, etc. It may be possible to separate from your spouse while still living in the same house. This can be proven through a division in the utilities, affidavits by friends or family who can attest to the separation, etc. Some people with children often separate but continue to live together to prevent causing distress to their children.
- Once you have been separated for 12 months, you can file an Application to Divorce. You can apply for a divorce on your own, or make a joint application.
- If you do not have children and you do not require property settlement, it is a straightforward process. If you have children under the age of 18, you will be required to attend a hearing.
De facto relationship
- You are considered to be in a de facto relationship if you have lived with your partner in a domestic capacity for more than two years.
- Unlike marriage, if you separate from your de facto partner, you do not need to apply to the courts for an order to separate.
- If you have children or property, including debt, you may need to apply for court orders.
Spousal maintenance is paid by one partner to another in the event they are unable to meet their own reasonable expenses from their personal income or assets.
There are two types of spousal maintenance:
- Spouse maintenance – you must apply within 12 months of your divorce being granted
- De facto partner maintenance – you must apply within two years of the breakdown of your relationship
The court considers a person’s:
- Age and health
- Income, property and financial resources
- Ability to work
- Suitable standard of living
- If the marriage has affected your ability to earn an income
Before making a decision relating to children, the court considers the best interests of the child. The court also prefers that where possible, parents work together to make decisions regarding their children rather than relying on the courts to.
Some of these decisions include:
- Who the children live with
- Where the children go to school
- Who the children can spend time with e.g. family members, family friends, etc.
- Medical decisions
- Who the children spend holidays with
It is a common misconception that equal shared parental responsibility means equal access to or time with the children. That is not true. Both parents are equally responsible for the care of their children, however, it may not be safe or practical to have equal access to or time with the children.
A parenting agreement is an agreement between the parents about how they will look after their children. A parenting agreement sets out the same information as above.
A parenting agreement can be informal or formal and amended at any time to reflect changing circumstances.
An informal parenting agreement can be a verbal or written agreement between parents. A written agreement can be drafted during your mediation sessions with the help of the mediator.
An informal parenting agreement is not binding and can be amended at any time. It is not enforceable. An informal parenting agreement is recommended for young children as circumstances quickly change as they grow up e.g. starting school, extracurricular activities, etc.
Formal parenting agreements are also called consent orders. A formal parenting agreement is a written agreement reached by both parents that is then presented to the Family Law courts to be signed off on. It is binding and enforceable and the courts take breaches seriously.
Consent Orders (Parenting Orders)
Consent orders are court orders stipulating the day-to-day care arrangements for children. They are enforceable and the court takes any breach seriously.
You can apply directly to the court for parenting orders, however, if you have made no attempt to establish a parenting agreement before applying, it is highly likely that the court will send you to mediation before it will hear your matter.
A new parenting agreement can alter the consent orders and it is recommended that you receive legal advice before entering into a new parenting agreement.
Child support is paid by the non-residential parent to the parent (who the child resides with), for the ongoing care of the child. It can be self-managed (informal), registered assessment or court-ordered. It can impact other areas of your life, for example, your will, your Family Tax Benefit and any new relationship you enter into.
Self-managed child support does not require a formal assessment or registration. You can come to an agreement with your ex about:
- How much to pay
- When to pay
- How to pay
You can make an application to Services Australia to have child support assessed and determine:
- Who needs to pay child support
- How much needs to be paid
- When payment needs to be made
Payment is assessed based on:
- The parent’s income and combined income
- How much time each parent cares for the child
- The age of the child
Court-ordered child support
The court has the jurisdiction to order a parent to pay child support. This often occurs where the child is over the age of 18 and has a disability or is participating in further education. If the court orders child support, you can apply to Services Australia to have them manage the assessment and payments.
Financial agreements (pre-nuptial agreement) can be established at the start of a relationship, during a relationship or after a relationship ends to prevent or resolve disputes. They apply to both married and de facto couples, however, they only apply to de facto couples if they normally reside in NSW, Queensland, Victoria, South Australia, the Northern Territory, the ACT or Norfolk Island at the time the agreement was made.
Financial agreements are binding and enforceable. They can cover:
- Financial settlement including superannuation after separation,
- Spousal maintenance upon separation, and
- Incidental issues
Time limits apply to property settlement and it is advised that you complete it as soon as possible.
If you are:
- Married: applications for property settlement must be made within 12 months of your divorce being finalised
- De facto: applications for property settlement must be made within two years of the breakdown of your relationship.
Property settlement can be completed by:
- An agreement between the parties without going to court
- If both parties agree, you can formalise your agreement by applying to the court for consent orders
- If both parties are unable to agree, you can apply to the court for financial orders
The court will consider:
- Your assets, debts and their total value e.g. house, cars, superannuation, loans, credit cards, etc
- Direct financial contributions by both parties e.g. wage or salary
- Indirect financial contributions by both parties e.g. gifts and family inheritance
- Non-financial contributions e.g. child-raising, homemaking, etc
- Future requirements e.g. age, health, financial resources, ability to earn, caring for children, etc.
Family dispute resolution (mediation)
Mediation is a dispute resolution process that assists parties to come to a mutual agreement to resolve their disputes. It is the recommended first step during a relationship breakdown for both parenting and property disputes. Many people find mediation successful because it gives them an opportunity to be heard and apply solutions they are happy with.
If you have not attempted mediation prior to applying to the courts for orders, the court has the discretion to make a referral to mediation before it will hear your matter. If the court hears your matter, you may not like its solution to your problem.
A mediator can issue a section 60I certificate stating that mediation was not successful or appropriate and you can apply to the courts for orders. Mediation may be unsuccessful because:
- The practitioner (mediator) considered it inappropriate e.g. domestic violence
- One or both of you refuses to participate
- You both made a genuine attempt to resolve your dispute but could not reach an agreement
- One or both of you failed to make a genuine attempt to resolve your dispute
- You both attempted to resolve your dispute, however, the practitioner (mediator) decided it was no longer appropriate to continue.
Mediation is usually conducted without your lawyer present. However, there may times where it is necessary to have your lawyer present (legally assisted mediation). The mediator has the discretion to decide whether mediation will require your lawyer to attend.
The above is general legal information and should not be considered legal advice. You should speak with one of our family lawyers for legal advice tailored to your specific legal matter. The courts deal with matters on a case by case basis. It should also be noted that there may be court delays due to COVID-19.
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Frequently Asked Questions.
If there are no court orders in place and there are no concerns for the children’s safety, you should not prevent your partner from having access to the children. The court does not look favourably on this behaviour as it does not view it as being in the best interests of the child.
Apart from the cost of your family lawyer, there are a number of expenses involved in separating. Some common expenses include court fees:
- Application for divorce = $930*
- Application for consent orders = $170*
- Initiating application – interim and final parenting and property (the Family Court of Australia) = $715*
- Initiating application – interim and final parenting and property (the Federal Circuit Court of Australia) = $715*
- Daily hearing fee = $655*
Some of these fees may be reduced in the event that you are able to prove you are suffering from financial hardship or you have a Government concession card.
*These figures are accurate as of the publication date of June 2021.
No. If you and your partner have separated amicably and there is nothing that will complicate your separation e.g. being married less than two years, family violence, children under the age of 18, etc, you can complete and file all the necessary paperwork without going to court. It is still recommended that you receive legal advice tailored to your specific circumstances to avoid any complications that might arise.
Child parenting orders, otherwise known as parenting consent orders, are orders which reflect the contact arrangements between parents. They specify what time each parent will spend with the child/ren, what, if any, restraints will be placed on the parties when they are spending time with the children and whether or not they have equal shared parental responsibility.
Parenting orders are binding until the children turn 18 unless the parties either agree to change the orders or unless the orders are no longer considered appropriate (i.e. they order time with the children during the day because they were made before the children attended full time school.
Custody is a term not commonly used anymore in Australian family law but traditionally it refers to which parent has primary care of the children. Parenting orders may allow for the mother to have time with the children every second weekend and for a night in the off week which would mean that the father has “primary care” of the children because they are with him the remainder of the time.
Anything which is considered close to a shared care arrangement of the children (i.e. 7 days per parent) is considered joint custody. There are endless reasons why care arrangements for children are the way they are and none reflect the love or care either parent has for the children.
The Family Court of Australia manages and adjudicates family law disputes between parents, guardians and/or other interested parties. Typically, the family court only hears more complex matters which require trials or hearings which will take longer than 3-4 days. They are able to hear matters which relate to both parenting and property but which have been exhausted by other avenues such as mediation or conciliation. The family court is the highest court (within the family law sector) and it can be quite a process before your matter will be heard. Each state has its own waiting list
The Federal Circuit Court of Australia is the court which sits below the Family Court. The Federal Circuit Court is he court your matter will be heard in first and is where majority of the interim hearings are heard. The Federal Circuit Court will decide whether your matter should progress to the Family Court or not.
A parent can stop another parent from seeing their child in cases of either physical or sexual abuse or in cases of neglect and lack of ability to care. If a parent’s capacity to care for their children is diminished in any way then that will be a determining factor in whether they get to have care of their children or not. If this is the case however, child safety services, police or the courts will usually have intervened and provided the other parent with sole custody.
Prior to court orders being put in place however, one parent can prevent the other parent from seeing the child/ren without an appropriate reason if they want to. This is not the way it should work, but simply withholding a child from a parent is becoming a much more common practice. This can be for a range of reasons including, pettiness, safety concerns, or just hate for the other parent. If you ever find yourself in one of these situations then please contact a lawyer immediately to make sure the situation does not continue.
When assets are divided in a divorce there are four categories taken into account to determine the settlement;
3. Financial Contributions; and
4. Non-Financial Contributions.
Non-financial contributions are considered to be just as important as financial contributions as they refer to things such as, staying home with children or running the household. If not for one person staying home to complete these tasks, the other could not have worked as much as they did. Certain contributions such as inheritances or lottery wins will alter the
percentage split in favour of the one who made the contributions. It is important to have a lawyer correctly consider and divide your assets to ensure there is an equal split.
Assets in a defacto relationship are divided the same way they are in a divorce because the basic principles are still the same.
In Australia, there is no requirement to provide a reason for divorce. The only requirement is that there must be an irreversible or irreconcilable difference in the relationship. There is no specific main reason for divorce, it can stem from infidelity, dislike, break down in communication, etc.
Divorce is supposed to be a last resort but for many it seems to be their first option. If you have been married for less than two years, there is a requirement that you engage in marriage counselling before finalising a divorce. No matter the reason, the only reason to get divorced is if the gap between you that has been created, cannot be bridged.
No, it is not a requirement that a property matter go to court. Property settlements can be agreed by consent and orders can be made which are formalised by the court to reflect it.
Property settlements can be settled through either the consent process which usually involves a mediation conference with an accredited mediator. This is where you will discuss all your assets and liabilities and try to find a common ground that they can agree on. Certain factors will be take into account such as contributions, future needs and care arrangements for the children.
The second avenue is that the matter progresses to court and the judge hears the arguments made by both sides. The judge will then decide what is to be considered a fair and equitable split.
In Australia, you need to be separated for 12 months before you can apply for a divorce. This can often be challenging because people do not always know an exact date when they separated and both parties could have a different time in mind for when they consider the relationship ended.
More complicated however, is the fact that often at time of separation, neither of you can afford to move out of the home. This means that both parties need to remain living under the same roof while separated. If this is the case, then at the time you go to apply for divorce, you will need to obtain evidence from friends or family by way of an affidavit that confirms you have been separated for the required 12 months.
If you are engaged in a defacto relationship, then you have two years from the date of separation to apply for a property settlement. This time can be extended by the court in certain circumstances however, the sooner you complete your property settlement the better.
If you are engaged in a marriage, then you have an unlimited amount of time to formalise a property settlement. The clock does not begin until you actually apply for a divorce. From the date of your divorce being finalised, you only have 12 months to formalise a property settlement. Again though, the sooner you sort your property settlement, the better.
Spouse maintenance is similar to that of a property settlement, you have 2 years if you are a part of a defacto relationship. Usually however, if you require spouse maintenance then you will need to prove your need immediately. The same can be said for married couples, if you are separated but still married then your need for maintenance will be apparent immediately.
Child support can technically be applied for at any time between separation and when the child turning 18. Child support is a parent’s responsibility to both the primary care giver and the child and is an entirely separate aspect of family law. The Child Support Agency is able to calculate which rate a parent is to pay and whether or not they are in arrears for what they
owe. It is likely that if a parent has not been child support for a period of time after separation, that they will be in arrears with the agency.
It is important to note that in some circumstances, people can get an exemption from seeking child support from the other parent on the basis of family violence concerns. Their Centrelink benefits may then be adjusted accordingly.
You have to be separated for a minimum period of 12 months before you can apply for divorce. This means that you have to have lived separately for that period and that your relationship is considered by friends and family to be over. The only requirement for a divorce is that there has been an irretrievable breakdown in the relationship.
In the event that you and your former spouse have been separated but living under the one roof, you may need to prove that you have been separated for the required time by providing affidavits to the court. This will mean getting friends or family who are familiar with your situation to swear under oath that they are aware you have been separated but living under the same roof.
You can have your marriage annulled if the circumstances of your marriage fall within certain exceptions. These exceptions exist to prevent marriages from being recognised which were brought about as a result of coercion, manipulation or if one or both parties suffered a lack of understanding for what they were going to do.
In most circumstances, you will just seek a divorce once you have been separated for 12 months. It is important to note however, that if you have been married for less than 2 years, you will need to attend marriage counselling before you can seek a divorce.
It is very important that if you are separated or seeking a divorce that you change your will in contemplation of that. This way, your assets will not transfer automatically to your husband in the event you die before your divorce is finalised
If you die and you are already divorced but you have not yet changed your divorce, it will be null and void because your next of kin will no longer be your husband. Your will should be updated as soon as you contemplate divorce so that contingency plans are in place for any situation.
In Australia, a pre-nup is referred to as a binding financial agreement. Every couple has the option of making an agreement before making a commitment to each other which sets out the manner in which they will split their assets in the event of separation.
n the event the other party will not sign the agreement, there are minimal avenues for you to engage in. It is difficult to force someone to sign a document which they do not want to. The best way forward is to engage a lawyer to help you negotiate an agreement which both of you are comfortable with.
Parenting orders can be applied for in relation to grandchildren at any time. Grandparents are important aspects of children’s lives and if they are being cut out then they have just as much right as a parent to have a relationship with their grandchildren. In order to obtain parenting orders, the matter will either need to be agreed by consent (between all parties) or they will need to be made by the court (with all parties aware of the application before the court).
The most important thing in these types of cases is to provide evidence to the court that you are and have been a substantial part of the children’s lives and that they would be disadvantaged if they did not spend quality and consistent time with you.
As a parent you can technically prevent any member of your family from seeing your children if you choose however, if you want to prevent your ex-husband or ex-partner from
allowing the children to see certain people, you need to prove why they pose a risk to the children. If they are dangerous, or a bad influence because they take drugs, consume excess alcohol or in extreme cases are classed as sexual predators then they would pose a risk to the children if they were left in their care. You cannot simply prevent someone from spending time with your children because you do not like them, they need to pose an actual risk.
You cannot take your children overseas to live without either a court order or agreement from the other parent. This is a major parenting decision and it will inevitably take the children away from their other parent and break the contact they can have with them.
However, if you want to take the children overseas for a holiday then that is more achievable. You may still be required to get a court order but the process is much simpler. Often, your individual parenting agreements or court orders will include provisions for this. It may state that you either need to provide confirmation of return tickets to be able to go or you need to obtain written permission from the other parent to be able to go.
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