FAMILY LAW

Parties are at liberty to apply for a divorce solely or jointly without a solicitor; however, retaining a family lawyer will ensure that the application for divorce is drafted in the correct form and that all necessary and supporting documents are provided to the Court to ensure the Divorce Order is granted without unnecessary delay. 

A family lawyer will obtain your instructions to prepare the application for divorce and file same with all necessary documents to ensure the Court is satisfied that it has jurisdiction to grant the divorce, that the marriage is proved, and that the marriage has broken down irretrievably. 

You can NOT apply to the Court for a divorce unless you have been separated for at least 12 months before the application is filed. However you CAN start negotiations about property (and children) as soon as the marriage has broken down. Many matters are resolved before the divorce application is filed.

If you get divorced you must start property or spousal maintenance proceedings within 12 months of your divorce becoming final. If you have been in a de facto relationship, you must commence property or maintenance proceedings within two years of your separation.

There is no formula or rule that determines how the property will be divided. The Court is not required to split the property 50/50. It will consider many things, including:

• Property owned before the marriage or relationship: The extent to which this is considered will depend on the length of the marriage or relationship and what contributions the other partner made (if any) towards the accumulation and upkeep of property.
• Contributions made by both partners during the marriage or relationship: This includes direct contributions (e.g. wage earnings, maintaining assets and property), indirect contributions (e.g. gifts, assistance from family members), non-financial contributions, do-it-yourself home renovations and contributions made to the welfare of the family as a caregiver or homemaker.
• Future needs (e.g. whether one partner will be supporting a child, the age and health of each partner and their ability to obtain employment and earn income).

Generally, contributions to the welfare of the family would be considered to be just as important as the contribution of the primary wage earner.

Changes to the Family Law Act in 2009 gave de facto couples similar rights as married couples. The Act states that a couple is in a de facto relationship if they are not married to each other, are not related by family and they have a relationship as a couple living together on a genuine domestic basis. If you are in a de facto relationship any disputes over your children or over property will be treated by law in the same way as for a married couple, if any one or more if the following conditions apply:

• your de facto relationship lasted for at least 2 years,
• you have a child with your de facto partner,
• you have made a substantial contribution to the property or finances of your partner, or
• the relationship is registered.

If there is a dispute about whether you were in a de facto relationship, the Court will look at things such as:

• the length of the relationship,
• your living arrangements,
• arrangements of finances and property ownership,
• the degree of mutual commitment to a shared life
• whether there was a sexual relationship,
• whether or not you had or cared for children and
• the way you presented your relationship in public.

Our professional fees vary on a case by case basis and are dependent on your instructions and the nature of the work involved. 

Parents are able to enter into agreements about the arrangements for their children, known as parenting plans. A parenting plan must be in writing, signed and dated. It can be changed by another signed written agreement. Parenting plans create no legal obligations on either parent. However, the Court can consider what has been agreed in a parenting plan if you have later court proceedings dealing with parenting issues.

Consent Orders are agreements which can be made after negotiating with the other parent, usually with the help of a lawyer or dispute resolution service. A consent order is filed at, and approved by the Courts and is binding because the Courts can be asked to enforce it.

The Courts decide what parenting orders to make for a child on the basis of the best interests of that child. The law says that in determining the best interests of a child, the Court’s primary considerations
must be:

• the benefit to the child of having a meaningful relationship with both of the child’s parents; and
• the need to protect the child from physical or psychological harm, and from being subjected to, or exposed to, abuse, neglect or family violence. The Court must give greater weight to this consideration.

 A parenting order can cover issues like:

• who a child will live with;
• what time a child will spend with a parent or other persons important to the child;
• how parental responsibility will be shared;
• how parents will communicate about a child; and
• how any disputes about what is set out in the orders will be resolved.

Parental responsibility means the duties parents have to their children and the important decisions parents make about their children, such as education, religion, health, the child’s name and living arrangements.

Each parent has equal shared parental responsibility for a child unless the Court makes an order altering this. The Court presumes that parents will have equal shared parental responsibility, unless there has been abuse of a child, family violence, or it is not in the child’s best interests.

When an order is made for equal shared parental responsibility, the Court will also consider whether it would be in the child’s best interests or practical for the child to spend either equal time with each of the parents, or substantial and significant time with each parent. The Court will take into account how far apart the parents live, the effect on the child of any proposed arrangements, and whether the parents can co-operate with each other.

Grandparents (or anyone who has and wants to continue an ongoing relationship with the children) can apply for an order to spend time with them. Children have a right to spend time on a regular basis with their parents and other significant people in their lives unless it is not in their best interests. Grandparents must therefore show that an order to spend time with the children is in the best interests of the children.

If a parent is in breach of a parenting order a party may:

• try to resolve the conflict through counselling or mediation services; or
• you can apply to the Court alleging the other party has contravened (broken) the parenting order.

Depending on the circumstances, the non-complying parent can be referred to a parenting program, fined, made to provide compensatory (or “catch up” time) with the child and parent, or even face jail.

If there is an order that the children live with or spend time with one party and the children have been taken or not returned, a parent  may apply to the Court for a recovery order. This order allows the police (both state and federal) to find and return the children. If  there is no parenting order in place that a party will need to apply to the Court for such an order, as well as a recovery order. This can be done at the same time.

If a party is worried that the children might be taken out of Australia they should put the children’s names on the Airport Watch List. A party will need to apply to the Court to place the children on the Watch List and send a copy of the application and any court orders made to the Federal Police.

The money, or in kind payments, paid by one parent to the other (or to someone else if the children do not live with a parent) is called child support or child maintenance. Child support may apply to all parents whether married, in a de facto relationship, never lived together, never had a relationship, and also
may include same-sex parents.

The Child Support Agency (CSA), which is the Commonwealth government agency that looks after child support payments, uses a mathematical formula to work out how much child support should be paid, known as a child support assessment. Once a child support assessment is made by the CSA, parents are free to arrange private payment of this sum. The person entitled to receive the child support payments can also ask the CSA to collect these payments on their behalf.

Parents are able to enter agreements known as “child support agreements”, which set out in writing the amount, frequency and method of payment of child support payments. Centrelink has rules that must also be taken into account when entering a child support agreement.