Family law matters can be complicated and fraught with emotion. We will listen to your concerns, provide a straightforward assessment of your case and how the law applies to your situation, advise you as to your rights and options, and recommend the best course of action for your desired outcome. We will support you each step of the way; from the initial confidential consultation, to settlement of your matter. Our goal is to make this process as simple as possible for you.
Our experienced family law team is able to provide advice, no matter how “simple” or complex, in matters including:
- Parenting orders and care arrangements
- Child and spousal financial support
- Property settlements and financial agreements and
- Family law issues concerning domestic violence and abuse.
Our website contains information regarding many areas of family law. However, if you would like more information, or wish to discuss your matter in confidence with a solicitor from our family law team, please feel free to contact us.
THE DIVORCE PROCESS
Divorce is the legal dissolution of a marriage. Applications for divorce are made to the Federal Circuit Court of Australia.
1. Apply for Divorce
You are eligible to apply for a divorce under Australian law if either you or your spouse:
- is an Australian Citizen by birth, descent or grant of citizenship; or
- ordinarily live in Australia and have done so for 12 months immediately prior to applying for a divorce; or
- regard Australia as home and intend to live indefinitely in Australia.
You must prove that there was an irretrievable breakdown of the marriage by demonstrating that you and your spouse have been legally separated for at least 12 months. You do not need to prove ‘fault’.
Neither you nor your spouse need to move out of the home you share to be considered ‘separated’, as separation may occur under the same roof. However, you will need to prove separation by providing Affidavits to the Court from you and a third party which attest to separation occurring under the same roof. The Affidavits should be provided to the Court at the time you apply for the divorce. Our family law lawyers are able to assist you in preparing these Affidavits.
If you and your spouse were married for less than 2 years at the time you apply for a divorce, prior to filing the application for divorce, you and your spouse must attend family counselling to explore the possibility of reconciliation. If reconciliation is still not a possibility, a Certificate will then be issued by the family counsellor, and you must provide this Certificate to the Court at the time you apply for the divorce.
Relationships Australia maybe able to assist you and your spouse with family counselling.
2. If the divorce application was a sole application, serve a copy of the Divorce Application on your spouse
We understand that divorce can be an emotionally stressful process and that you may wish to keep contact with your spouse to a minimum. To minimize your stress, our family law lawyers are able to arrange for service on your spouse for you.
If both you and your spouse applied for the divorce jointly, the Application does not need to be served on your spouse.
3. Attend the Divorce Hearing if required
A hearing date is usually listed for a date approximately 6 weeks after you have filed your divorce application with the Court.
If you have children under 18 years of age, attendance is required at the Divorce Hearing. Either you or your spouse may attend; the Court does not require that both you and your spouse attend the hearing. Our family law lawyers can attend the Hearing and appear in Court on your behalf. If you do not have children of the marriage under the age of 18 years, neither party needs to attend the Divorce Hearing.
If there are no objections to the application, the Court may grant a divorce order on the hearing day.
4. The Divorce will take effect one month and one day from the hearing date
After the divorce order takes effect, any Court proceedings for property settlement must be filed with the Court within 12 months of the divorce order.
Our family law lawyers will be able to assist you in negotiating, preparing and finalizing any property settlements.
5. Review your Will, superannuation, and other policies
A divorce automatically revokes any provisions you made to your former spouse in a Will made prior to your divorce. You should make a new Will to reflect your change in circumstances. Bay Legal has experienced estates planning and succession law lawyers who are able to assist in you in preparing new wills and powers of attorneys.
PARENTING AND CHILDREN’S MATTERS
Family Dispute Resolution
In most cases, you cannot commence proceedings in Court where the matter involves children unless you first participate in family dispute resolution through mediation. Family dispute resolution is usually the process of mediation to help separating parents settle their differences concerning the parenting of their children.
Relationships Australia maybe able to assist you and your family with mediation.
However, if there is sufficient urgency in your case (for instance, because your children are at risk of violence or abuse, or because the other parent has abducted the children), the Court will accept an application to commence Court proceedings even though you have not attended family dispute resolution. If the other parent has not returned your children, it is possible to seek a recovery order from the Court which will direct the Australian Federal Police to collect the children. If you are concerned that the other parent will take your children overseas, it is possible to have the children’s names placed on the Australian Federal Police Watch List, which will prevent the children from passing through any international seaport or airport in Australia.
Once you have attended mediation, a Certificate will be issued to you by the mediator which will allow you to commence Court proceedings to determine your parenting matters. You will need to provide this Certificate when commencing proceedings.
If you reach agreement regarding the parenting of your children, you can either formalise your agreement by applying to the Court for Consent Orders, or have an informal agreement in place by way of a Parenting Plan (which is not enforceable by a Court if the Plan is breached).
Our family lawyers are able to assist you in negotiating, drafting and finalizing parenting arrangements with the other parent by Parenting Plan or Court Orders.
Going to Court
If you cannot come to an agreement regarding parenting arrangements, despite attendance at mediation and negotiations, you may apply to the Court for its determination.
Best Interest of the Children
The Court will always hold the best interests of the children as the most important consideration when determining parenting matters, and will make determinations based on what is best for the children. Usually, the best interest of the children is a balance between the children’s right to a meaningful relationship with both parents, and protecting children from any risk of violence, abuse and neglect.
The Court will consider the following principles when making parenting determinations:
- Children have the right to know and be cared for by both their parents;
- Children have a right to spend time, and communicate on a regular basis with both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives);
- Presumption that parents should share equally duties and responsibilities concerning the care, welfare and development of their children.
The concept that parents have equal shared responsibilities for the children is not the same concept as parents having equal time with the children;
- Parents should agree about the future care of their children; and
- Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The Court may also consider:
- The children’s views and level of understanding;
- The relationship of the children with each parent and other persons (including any grandparent or other relative);
- The willingness and ability of each parent to facilitate, and encourage, a close and continuing relationship between the children and the other parent;
- The likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either parent, or any other person with whom the children have been living with;
- The practical difficulty and expense of the children spending time with and communicating with a parent, and whether that difficulty will substantially affect the children’s right to maintain a relationship with that parent;
- The capacity of each of the children’s parents, and any other person (including any grandparent or other relative) to provide for the needs of the children, including emotional and intellectual needs;
- The maturity, sex, lifestyle and background (including culture and traditions) of the children and the parents;
- The attitude of the parents;
- Any family violence; and
- Any other fact or circumstance that the Court thinks is relevant.
Shared Parental Responsibility
Unless there is a significant risk of violence, abuse or neglect, the Court must apply the presumption that it is in a child’s best interests for the parents to have equal shared parental responsibility.
“Parental responsibility” means all of the duties and responsibilities that parents have in relation to their children, including decisions involving significant, long term issues such as schooling, living arrangements, medical treatment and changes to names.
If the presumption of equal shared parental responsibility applies, the Court must consider whether spending equal time with both parents is in the child’s best interests.
If the Court decides that is not in the child’s best interests and is not reasonably practicable for the children to spend equal time with each parent, it must then consider whether it is both in the children’s best interests and is reasonably practical for the children to spend “substantial and significant” time each parent.
“Substantial and significant” time requires the child spending time with both parents across weekends, weekdays and holidays, so that each parent is involved in the children’s daily routine and on occasions that are significant to the children and to each parent, such as birthdays, Mother’s Day and Father’s Day and certain public holidays.
Our family law lawyers are able to assist you in commencing Court proceedings and provide expert legal advice to obtain the best possible result for your children and you. We understand that disputes involving your children can be emotionally distressing and stressful, and we will support you in each step of the Court process.
FAMILY VIOLENCE AND ABUSE
Everyone, including children, has the right to live free from threats of, and actual physical, emotional and economic abuse.
Witnessing violence between parents can be terribly damaging for children, and it is crucial that we take steps to minimise the risk of harm to the children. If you or your children are experiencing violence or abuse at home it is essential that you seek support.
Our family law lawyers are experienced in providing strictly confidential advice and assistance, and are able to connect you to a range of other confidential services that may assist you.
You can also contact the Domestic Violence Line on 1800 656 463 (TTY 1800 671 442). This is a statewide free-call number and is available 24 hours, seven days a week, and provides telephone counselling, information and referrals for people who are experiencing or have experienced domestic violence.
If you know or suspect that a child is at risk of harm from abuse or neglect, it is vital that you take appropriate action. At the very least you should inform your lawyer and obtain advice on the most appropriate way to protect the child. The Court treats allegations of child abuse seriously, and generally requires special management of such cases.
You should also consider notifying the Department of Community Services (‘DoCS’), and seeking assistance from a specialist child abuse prevention service. To report suspected child abuse or neglect, please call the DoCS Child Protection Helpline on 132 111 (24 hours/7 days) or visit the DoCS website at www.community.nsw.gov.au.
The Family Relationship Advice Line (1800 050 321) is available from 8 am to 8 pm, Monday to Friday, and 10 am to 4 pm on Saturday (local time), except on national public holidays. This service provides information on family relationship issues and advice on parenting arrangements after separation. It can also refer callers to local services that can provide assistance.
Other useful services include:
- Mission Australia Helpline:
- Catholic Care Relationship Counselling:
- Relationships Australia:
- Salvo Care Line:
- Salvo Crisis Line:
- suicide prevention 24 hours 7 days a week.
Parents have a responsibility to financially support their children in priority to every other obligation they may have.
The Child Support Agency is the government department charged with ensuring that parents understand and meet their obligations to support their children after separation, and will assess the parents’ child support liability, as well as recover child support from a parent if necessary.
If you don’t agree with a child support assessment, there are processes for challenging the assessment, either within the Child Support Agency, through the Social Security Appeals Tribunal, or through the Family Court.
Child support does not necessarily need to be paid directly to the Child Support Agency, or even by way of cash. If you and the other parent agree, you can enter into a child support agreement whereby the child support liability as assessed by the Agency can be fulfilled in way that is agreed between you and the other parent.
Our family law lawyers can negotiate, prepare and review the child support agreement for you.
When can I seek a property settlement?
There is no ‘waiting period’ for commencing proceedings for property settlement or for entering into an agreement dividing your assets. Accordingly, you do not have to be divorced or even separated before resolving your property disputes.
However, you must commence property proceedings with the Court within 12 months of obtaining a divorce order, and within 24 months of separating from your de-facto partner. Otherwise, your matter may not be able to be determined by the Court, and you may need to apply for leave of the Court to commence proceedings for property settlement outside of this time frame.
How can I formalise a property settlement?
There are two ways in which to formalise an agreement to divide your assets.
1. Consent Orders
You can apply to the Court to make orders reflecting the agreement reached. The Court will only make those orders if the agreement reached is a fair and equitable division of your assets.
Our family law lawyers are able to assist you in negotiating a fair and equitable property settlement with the other party, formalising your agreement at the Court, and carrying out the Court orders.
For more information please contact us to make an appointment to confidentially discuss your situation.
2. Binding Financial Agreement
If you plan to marry or live with someone, you should consider how your property will be divided if you separate in the future.
It is not any more pessimistic to think that your relationship or marriage may not last, than it is pessimistic to insure home and car against theft or damage.
Often referred to as a “pre-nup”, a Binding Financial Agreement is a contract between you and the other party which sets out what will happen to your assets and liabilities, including any spousal maintenance, and can be entered into at any time, regardless of whether you are in a de facto relationship, same-sex relationship, are married or about to be married.
As a Binding Financial Agreement is a contract between you and the other party, the division of assets and liabilities does not have to be considered “fair and equitable”, unlike the requirements for the making of consent orders. The Binding Financial Agreement will be enforceable in Court so long as both parties freely consent to the agreement, and received independent legal advice about the consequences of the agreement.
A Binding Financial Agreement can protect:
- Assets which you already own;
- Assets which you expect to receive later, such as an inheritance, gifts, compensation monies, etc;
- Interests in a business or a company;
- Your income;
- Your exposure to debts; and
- Your children and other people who are financially dependent upon you.
However, a Binding Financial Agreement may be overturned by the Court for several reasons, including fraud, duress, and significant changes in the parties’ financial circumstances.
Recently, a large number of Binding Financial Agreements are being challenged in Court and eventually overturned. Therefore, a Binding Financial Agreement can be risky avenue for formalising a property settlement.
For these reasons, Bay Legal does not currently offer services in drafting or reviewing Binding Financial Agreements.
How will the Court divide our property?
The Court applies the following four-step process in resolving property disputes:
- Identify and value the net assets (including superannuation) of the parties;
- Considers the direct and non-direct financial and non-financial contributions each party has made to the acquisition, conservation or improvement gross assets, or welfare of the family including in the capacity as homemaker or primary caregiver of any children of the relationship;
- Examines the parties’ present and future needs, including:
a. age; b. health; c. carer responsibilities; d. financial resources including pensions, allowances and benefits, financial circumstances of cohabitation with any new partners; e. physical and mental capacity for gainful employment; f. reasonable standards of living expectations; g. duration of the relationship and the extent to which it has affected the earning capacity; h. extent to which the payment of maintenance to a party would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish that party in a business or otherwise to obtain an adequate income; i. extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; j. child support that a party has provided, is to provide, or might be liable to provide in the future; k. effect of any proposed order on the ability of a creditor to recover their debt; l. any fact or circumstance which, in the opinion of the Court, the justice of the case requires to be taken into account;
- Make an order that is just and equitable in all the circumstances.
There are stringent rules that apply to the disclosure of parties’ financial affairs, which require the parties make full and frank disclosure of all of their financial interests before commencing Court proceedings.
The Court expects that parties will seriously embark on this process of sharing complete and accurate financial information. If the Court believes that a party has concealed assets or income, the Court may impose harsh penalties, including making orders that give the lion’s share of the disclosed property to the other party.
Sometimes, a party to the relationship requires assistance with living and other expenses after separation. Spousal maintenance orders may be made in circumstances where one party has the required level of need and the other party has sufficient means to pay.
Spousal maintenance is in addition to child support payments, so it is possible that a party with sufficient means may be required to pay both child support and spousal maintenance to their former partner.
Spousal maintenance orders tend to be relatively short term, and are often focused on assisting with the re-training of the recipient so that they can re-enter the workforce.
The Court has extensive powers to make urgent orders in relation to property, particularly where there is a risk that property might be sold, concealed or dissipated. The Court is able to make orders to:
- Stop a party from disposing or otherwise dealing with property;
- Compel one party to continue to make mortgage payments;
- Compel the sale of a property (for example, if one party will not co-operate with a sale, and also refuses to pay the mortgage, thus placing the parties at risk of a mortgagee repossession);
- Exclude one party from the home, particularly where there is a risk of family violence; and
- Compel one party to pay urgent spousal maintenance to the other.
In addition to these Court-based remedies, it is also possible for a party within an interest in the property to lodge a caveat over property to prevent its unilateral sale.
Caveats can provide useful breathing space while you consider whether or not to seek the assistance of the Court.
However, because caveats do not have the status of Court orders, the person lodging a caveat can be compelled to remove it by Land and Property Information.
Bay Legal is able to assist you in every step of your property settlement, from negotiation to finalization.