General

When and Why Should I Seek Family Law Legal Advice?

Each person’s situation is unique. Whilst the information on this site will be helpful for your general understanding, you will need legal advice which is tailored to your particular circumstances.

In our experience, it is helpful for a person to talk to a family lawyer early on, whether before separation or soon after. If you can get an indication of what your entitlement to property division will likely be or likely outcomes for children’s living arrangement, you will be better able to prepare and to decide how you will approach any discussions that you and your former partner may have.

There are also things that you can do and preparations that you can make before or around separation that will likely put you in a better position in the period before you reach a final agreement with your former partner or which may help you in the final outcome. We can discuss these things with you in more detail. A useful summary appears in our article Practical Steps for Separation.

The next time to see a family lawyer will generally be when Consent Orders are needed to be prepared after you and your former partner have reached an informal agreement or where agreement cannot be reached. It is important that any informal agreement is included in Consent Orders or a Binding Financial Agreement so that you have the comfort of knowing that your agreement is final and binding.

However, it is important to obtain family law legal advice as to what are your rights and entitlements as well as your obligations before you reach any informal agreement. If you don’t do that, you may prejudice yourself and risk receiving less than your entitlement in property or less than optimum arrangements for the children.

Depending upon your particular circumstances,it may be imperative to protect your rights that you obtain family law legal advice very early on and even before separation. This will be the case, for example, where there is a risk of family violence or child abuse. You should also obtain early advice if a significant part of the assets are registered in the name of your former partner or under his or her control. It may then be necessary that appropriate steps are taken early onto ensure that your former partner does not sell or otherwise deal with relevant assets before final property settlement can be reached. If you do not have sufficient funds to support yourself, we will consider taking steps to obtain spousal maintenance from your former partner. We would first ask your former partner to support you and if there was no agreement, consider if it is appropriate to make an Application to Court for spousal maintenance.

How Can We Help With a Family Law Claim?

LGM Family Law recognises that each person’s situation and family circumstances are unique. We listen closely to what concerns you have; we determine what are the legal issues involved and work with you to obtain the information that we need.

We advise you as to what are your rights, entitlements and obligations in family law as well as the options available to you and likely outcome of following any of those options.

If you come to us with an agreement that you have already made with your former partner, we can assist by preparing Consent Orders which finally determine your family law matter setting out the detail of your agreement. We will also obtain particulars of your relationship history and advise you whether or not that agreement comes within the range of or reflects, what your entitlement or rights may be at law.

If you don’t yet have an agreement, we will negotiate with your former partner, aiming for an agreement to be reached in a timely manner. This maybe done through correspondence as well as phone calls to your former partner’s solicitors and if appropriate, by participating in an informal conference. We consider all options in order for you to reach agreement with your former partner.

If you cannot reach agreement, we will arrange alternative dispute resolution such as mediation.

If it becomes necessary, we will prepare Court documents for you and guide and represent you through any court action. Even then, we will continue to look at all options to reach a final agreement with your former partner and cut any court action short.

Can LGM Family Lawyers Help With Legal Advice?

We can assist by preparing the Application for Divorce and arranging service of documents on your former partner as well as preparing documentation and representing you in any contested hearing.

We can also attend with you at Court should you be required to attend Court for the Divorce Hearing and want to have legal representation. Further information about Divorce which you may find helpful appears under our Family Law FAQ’s.

Separation

Yes. You may only make an Application for Divorce after you have been separated for 12 months. You should keep a note of the date of separation and ensure that you have communicated to your former partner on that date that you are separating.

Practical Steps for Separation

• Keep a note of the date of separation;
• Consider securing passports and birth certificates, including those of any children as well as your financial documents and records;
• It may be preferable that you remain in the marital home: You won’t lose your rights to property settlement if you do leave the home.  If domestic violence is involved, it may be important that you do leave. However, if this is not a factor, remaining in the home is likely to be less disruptive for you and any children;.
• Consider counselling for both you and your children;
• Ensure you have enough funds to meet likely initial expenses;
• Protect your finances: Consider what risks there may be that your former partner may access your funds or increase  any financial exposures without your knowledge or consent and how best to limit or eliminate this risk. We have made some suggestions in this regard in the related article that appears in our blog;
• Obtain independent legal advice regarding family law matters: We recommend that this is done at an early stage. It will be important to ensure that you do not unwittingly prejudice your position;
• Obtain other professional advice: Consider obtaining financial and estate planning advice;
• Other considerations: Refer to the related article in our blog for details of other things you should consider, including steps to protect your interest in any assets which may be held in your former partner’s name;

Can My Former Partner and I Separate Our Property Assets Without Court?

Yes but it is important that you have a final and binding agreement for the division of property. This may be achieved by:

a binding financial agreement entered into between you and your former partner. There are strict requirements that must be satisfied, including independent legal advice, in order for these agreements to be enforceable;
Consent Orders issued by the Court. You do not attend Court but an Application for Consent Orders is made by you both and filed at Court.

Divorce

You and your former spouse must be separated and live separately and apart for a continuous period of not less than twelve months before the date that an Application for Divorce is filed. There must be no reasonable likelihood that you will resume married life.

Should I Obtain a Divorce as Soon as the 12 Month Waiting Period Elapses?

You may have personal reasons to apply for a divorce as soon as the 12 month period expires. However, dependent upon your circumstances, you may wish to postpone applying for a divorce as a 12 month period within which an application for spousal maintenance may be made begins to run once you are divorced. You also have 12 months from the date that the Divorce Order issues in which to settle property matters. If this is not going to be possible, you will need to file an Application in the Court for settlement of property matters before that 12 month period expires. If you fail to do this and the 12 month period expires, you will need to obtain leave of the Court in order to start an action but there is no certainty that leave will be granted.

Reconciliation After the 12 Month Period

If you and your former spouse separate but then resume living together for one period up to (but not including) three months before you again separate, the periods in which you were separated both before and after the attempted reconciliation may be treated as one continuous period. The period of the attempted reconciliation is not included in calculating the continuous period of 12 months in which you must otherwise live separately and apart before applying for a divorce.

Separation Under One Roof

You may be separated even though you continued to live in the same house but the fact of separation and when it occurred must be established.

Do I Go to Court for Divorce?

If there is no child under 18 years of age or if there are children under 18 years of age but you make a joint Application for Divorce, you do not have to attend the Divorce hearing. If you make a sole Application and there are children under 18 years of age, you must attend the hearing.

Is Divorce Granted at a Hearing?

If the Court grants the divorce at the Divorce Hearing, the Divorce Order will only issue one month and one day later when the Divorce becomes effective.

How Does Divorce Effect Property?

Divorce ends the marriage but it does not result in any arrangements or changes concerning property. It is important to be aware that you have 12 months from the date of the Divorce in which to settle property with your former spouse. You will require leave of the Court to file an Application seeking Orders for settlement of property after that 12 month period has expired.

Does Divorce Effect Arrangements for Children?

The granting of a Divorce does not decide parenting arrangements for your children. You may make arrangements for your children which are confirmed by a Parenting Plan. Alternatively, you and your former spouse may make an Application for Consent Orders relating to your children without the need to attend Court. A Court may issue Parenting Orders where you and your former spouse are involved in litigation.

Do I Have to Wait 12 Months Before Seeking Court Orders Regarding Children?

No. You can start a Court action or settle these matters by negotiation or mediation at any time after you separate. There is one proviso, being that once you obtain a Divorce Order, you will only have 12 months within which to finally settle property matters. If that cannot be done within the 12 month period, then within that period you will need to start an action in the Family Courts seeking Orders relating to property or spousal maintenance.

Can I Apply For Divorce If I Was Married Overseas?

You may be divorced in Australia even though you were not married in Australia if either or both of the parties to the Marriage are an Australian citizen domiciled in Australia or have been ordinarily resident in Australia for at least one year prior to filing the Application for Divorce.

Who Makes An Application for Divorce?

An Application for Divorce may be made by one party or made jointly by both parties to the Marriage. If the application is not jointly made, there are specific requirements relating to service of a sealed copy of the application and other documents upon the other party.

De facto relationships

I am in a de facto relationship. If we separate, can I seek a property settlement?

The short answer is yes, provided you separated after 1 March 2009 and certain statutory requirements are met in the case of your relationship, you are entitled to have your claims for property settlement and spousal maintenance determined in the Family Courts. If you do not meet those requirements, you may have a claim under State legislation.

I would like to reach an agreement regarding property with my former partner but is there any time limitation regards when I must start Court proceedings?

Yes. Any Court action seeking property Orders under the Family Law Act 1975 must be made within 2 years of separation unless the Court is satisfied that hardship would be caused to the party or a child if leave were not granted, or if an application is for maintenance, that, at the end of the standard two year application period, the person is unable to support themselves without an income tested pension, allowance or benefit.

Children

I have heard that parents have equal shared parental responsibility. Does this mean that the children spend equal time with each of us?

The Family Law Act 1975 includes a presumption that it is in the best interests of children for parents to have “equal shared parental responsibility” for them. That responsibility does not mean children spending equal time with each parent but includes the duty to maintain children and authority to make decisions relating to the care, welfare and development of children. It extends to all decisions necessary to ensure that the child’s needs are met and includes (but is not limited to) decisions concerning where the child lives, medical treatment, where the child is educated, the child’s name and passports. The presumption of equal shared parental responsibility does not apply where there are reasonable grounds to believe that a parent has engaged in child abuse or family violence.

Can I require that the children spend half of their time with me?

The Family Law Act 1975 is concerned with what is in the best interests of the child. Even if the presumption of equal shared parental responsibility applies, parents (or if your matter is before a Court, the Court) must consider whether a child spending equal time with his or her parents is in the child’s best interests and reasonably practicable. There are various things that are considered in order to determine this. Our section “Children” deals with this in more detail.

If spending equal time is not in the child’s best interests and reasonably practicable, then what next needs to be considered is whether the child spending substantial and significant time with the other parent is in his or her best interests and reasonably practicable. That time includes time during the school week as well as over holidays and special days so that the other parent may remain actively involved in the child’s life.

Do we have to have a legal agreement about arrangements for the children?

The short answer is no. It is preferable that an agreement is reached and reducing that agreement to writing will likely add to certainty for both of you as well as assisting you to focus on the necessary details to help with transitions for the children between your households. You may do this by:

a Parenting Plan; or
Consent Orders which may be issued by the Court following an Application for Consent Orders made by both of you.

How can I get time with my children if my former partner won’t agree arrangements?

You will first need to go to a family dispute resolution meeting and make a genuine effort to resolve issues with your former partner. The meeting is held with a family dispute resolution practitioner who will issue what is known as a section 60I certificate. You will generally require that certificate in order to start an action in the Family Courts unless your matter is urgent or other exemptions apply. The certificate will be issued even if your former partner refuses to attend the meeting or where no agreement is reached at the meeting. Whilst Gildea Family Lawyers will consider recommending mediation if it is appropriate for your circumstances, it can be in your children’s best interests that you commence legal proceedings. Where your former partner is refusing to allow the children to have reasonable time with you, legal proceedings ensure that the other party is required to respond and will lead to an outcome for you. Gildea Family Lawyers has the expertise to prepare your Court documents and represent you. We will also continue to seek to cut short Court proceedings by reaching a negotiated agreement with the other party confirmed by Consent Orders.

Can children choose where they live?

The Court must consider any views given by a child as to where he or she wishes to live. This is taken into account as well as other considerations so that the Court may determine what is in the best interests of the child.

The Court must also consider others factors such as the child’s maturity or level of understanding that the Court thinks relevant to determine what weight the Court should attach to any view given by a child. For example, the Court would take into account any evidence of a child having been influenced in his or her view by a particular parent or other family members.

The Court takes a dim view of any attempt by a parent to influence a child to say that he or she wants to live with one parent or primarily with one parent in preference to another.

Absent evidence of influence upon a child, the view then of a fourteen year old as to where he or she wants to live would generally be expected to carry more weight than a similar view expressed by a four year old.

However, the view of even a mature older child may not be definitive of the matter. There are other considerations to also be taken into account which may also effect the outcome, for example, the views of each parent and the practical difficulty and expenses of a child spending time with a parent.

Child support

How do I access child support?

Child support is assessed by the Child Support Agency pursuant to a formula which takes account of various factors, including your income as well as the income of your former partner, the level of care that you and your former partner provide for the children and the cost of care for children. You will need to obtain a child support assessment from the Agency and can apply online. There is a calculator on the Agency’s website which can be used to obtain an indication of what child support your former partner may be required to pay.

How are the child support payments made?

Child support payments may be paid directly by your former partner to credit of your account or you may arrange for the Child Support Agency to collect those payments for you.

Domestic violence

How can I obtain protection from domestic violence by my former partner?

You may apply for a Protection Order by filing the required Application (Form DV1) including a statutory declaration with the Magistrates Court. If you are in immediate danger, you should contact the Police. The Court may give you a temporary Protection Order which will apply until the date that your application is heard. You may also ask for a temporary Protection Order to be issued before the other party is served with your application. If this is what you require, you will need to demonstrate to the Court that it is necessary or desirable for you or another named person to be protected from domestic violence by such a temporary Order before the other party is served with your Application.

Can a Protection Order also cover my children?

Your children may be included as named persons on your application for a Protection Order. You will need to show why it is necessary for the children to be included on the Protection Order.

Will the Protection Order prohibit my former partner from coming near me or the children?

Generally, a Protection Order will require that the other party be of good behaviour and not commit associated domestic violence, towards you or any named person (such as named children). The other party is also required not to expose any child named in the Protection Order to domestic violence. You may elect on the Application for the Court to consider other conditions, such as requiring the other party to leave your place of residence or not to come near you or other named persons. However, you must provide reasons why it is necessary or desirable that those further conditions apply to protect you or other named persons.

My former partner has applied for a Protection Order against me. What can I do about it?

You may:

• Consent to issue of the Order. If you decide to do this, you may wish to consent without admission, meaning that while you consent to the Order, you do not admit the facts alleged by the complainant;
• Require that the hearing is adjourned whilst you obtain legal advice;
• Oppose the making of the Protection Order, in which case, the Magistrate will set the matter down for hearing. The Magistrate may determine to issue temporary Protection Order pending that hearing;
• Decide not to attend the first hearing date. This is not recommended. Orders may be made in your absence.
• You will not have a criminal record by reason only of a Protection Order being made against you. However, the Police may press criminal charges against you if you breach the terms of the Order.

Property

My friend has told me that I will be entitled to 50% of our marital assets. Is this correct?

There is no “one rule fits all” in family law. Your entitlement to property will depend upon a number of factors including the respective contributions (financial and non-financial) made by each of you both at the commencement of the relationship and during the relationship and what are described as “future needs” factors. Those factors include, by way of example, your respective ages; state of health; income earning capacity and whether either of you have the care or control of a child of the relationship under 18 years of age. The Court must also be satisfied that it is just and equitable to make a proposed Order.

In a long term relationship, a 50:50 division in relation to financial and nonfinancial contributions has been described as a convenient starting point. However, that division can be disrupted by other considerations, including the future needs of the particular parties. In the final analysis, the percentage division awarded by a Court may involve a quite different percentage division of property even in a long term relationship.

My former partner says that I will not get anything from our marriage because I have not worked for years and all our assets are in my former partner’s name. Is this true?

Even though you may not have been employed for a long time, your contributions, for example in homemaking or care of children, is relevant to be taken into account when determining what is your entitlement to property.

Both financial and nonfinancial contributions of each party are taken into account, as well as other factors, when determining what each party is entitled to receive out of the net asset pool. Your contribution as a homemaker or as the party who provided primary care of the children is an important contribution, often allowing or facilitating the other party to develop his or her career and so increase their earning capacity.

However, although at law, you may have an entitlement to property, if the other party refuses to acknowledge that, it may be necessary that you institute an action in the Family Courts seeking Orders for the division of property. If you do not have sufficient funds available to do this, consideration should be given to whether you may seek an early Court Order for an interim property settlement or requiring that your former partner pays or contributes towards your legal costs.

The property available for division between you and your former parent will generally include all property, no matter in whose name that property is registered. If there is a risk that your former partner may dispose of property held solely in his or her name, you should seek early legal advice regarding steps that may be taken to protect your interest in those assets.

I received a large inheritance during our relationship. Can my former partner claim an interest in it?

Your former partner may claim an interest in the inheritance if it is treated as forming part of the asset pool available for division between you. If the inheritance is received late in the relationship, it may be excluded from the asset pool and be reserved in favour of the party who received it. However, if this is done, the amount of that inheritance may be treated as a financial resource available to that party with a consequential adjustment being made in favour of the other party in relation to the remaining asset pool.

If the inheritance received during a relationship is effectively applied in the relationship, for example, where an amount of money inherited is used towards purchasing a property, the value of that inheritance will be treated as a contribution made by the party who received the inheritance. That party may then require some adjustment in his or her favour in the overall division of property. Whether an adjustment is made and the extent of any adjustment made will depend upon a number of factors including the size of the inheritance relative to the overall net asset pool, at what point in the relationship it was received and the length of the relationship.

Spousal Maintenance

Once we separate, can I require that my former partner pays me spousal maintenance?

There is no absolute right to spousal maintenance. Where you do have a valid claim, if your former partner will not agree to pay it, you will need to apply to the Court for an Order for spousal maintenance.

In family law, the Court may consider making such an Order where there is satisfactory evidence that you have a need for maintenance (in that you are unable to support yourself adequately from your own resources) and the other party has capacity to pay maintenance. The Court will consider what may be the cost for you to maintain a standard of living which is reasonable in the circumstances as against the other party’s capacity to pay. Where the Court is willing to make an Order for spousal maintenance, it will also consider whether that maintenance is paid by way of a lump sum or periodic payments made over a defined period.

Does spousal maintenance include financial support for the children?

Child support is not included in spousal maintenance. Spousal maintenance may be paid towards the living expenses of a party to the marriage or de facto relationship where that party is unable to adequately support himself or herself and the other party to the relationship has effectively capacity to pay that maintenance. Child support is addressed separately whether by agreement with your former partner or by way of an assessment issued by the Child Support Agency.