June 13, 2016

Family law

Family law young couple

Services

  • Family Court litigation
  • Divorce
  • Property settlements
  • Consent orders & Parenting orders
  • Mediation
  • Contravention of orders applications
  • Child support agreements
  • Pre-nuptial/Binding Financial Agreements
  • Defacto & same-sex relationships
  • Intervention orders

FAQs


Couple family law

Family Law – General

What is Family Law?

Family Law is the area of law that deals with family matters such as property, children, divorce, financial agreements and so on.

My marriage or defacto relationship has broken down. What’s my first step?

First and foremost is to ensure you have proper emotional support from family and friends.
You should then discuss your circumstances with your solicitor to ensure you are aware of all your rights and to get a clear idea of the legal process. Making sure you are supported both emotionally and legally will make the whole process a whole lot easier.

Will my matter go to court?

The majority of relationship breakdowns do not end up in court and of the small amount that do, even fewer go to a final hearing. Alternatives to court are mediation, conciliation and counselling. Couples are at all stages encouraged to settle matters amicably and fairly so as to avoid undue emotional and financial hardship.

Married, defacto or same-sex relationships. Any differences when it comes to family law?

At this time, in most cases the different types of relationships are treated the same under the Family Law Act.

What sort of costs are we looking at?

As Family Law cases vary greatly between each other, costs are difficult to estimate. Costs are based on Solicitor time, law clerk time and third party costs such as court fees, mediator fees and barrister costs. The quicker the dispute is resolved and an agreement reached the less the process will cost. Matters that progress all the way to a final hearing can wind up being very expensive. However this cost has to be weighed up against the benefit of further litigation.

So. How can I resolve this matter quickly and with the least expense?

The best way is to try and reach an agreement that is fair and reasonable for both parties and in the best interests of the children of the relationship (if there are any). Try to avoid conflict. Try take a longer view of the matter to avoid petty arguments with your former partner. Be honest and upfront with your solicitor regarding financial and relevant personal matters so as to avoid back and forth correspondences disputing facts

What if my former partner refuses to negotiate?

Then it’s up to your Solicitor to take over negotiations with your former partner’s Solicitor, or you may have to go to court. Negotiations continue throughout the court process.

What if my former partner is violent?

If your former partner acts violently towards yourself, your children, your extended family or friends you need to act immediately. You must contact the police and apply to the court for a Family Violence Intervention Order. Your Solicitor can assist you with the application.


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Broken home

Property & Financial

We believe we have reached an agreement and wish to formalise the agreement so it is final and binding. What do we do now?

Your will need to have either a Financial Agreement or Consent Orders prepared. Both are written agreements which state all financial settlement details including what happens with all of your property including real estate, vehicles, chattels, superannuation and so forth, as well as spousal maintenance arrangements. Consent Orders are approved by the Court. Financial Agreements do not have to be approved by the Court, but both parties must have legal representation.

We can’t agree. What now?

You will first need try to resolve the matter through your solicitors or mediation. If an agreement still cannot be reached, you will need to apply to the Court for Financial Orders.
To determine its decision, the Court takes into account facts such as current financial position, past contributions to the relationship both financially and in regards to housekeeping, child rearing, assets, the parties health, care for dependents and future earning capacity of each party.

What happens to the family home? Who can live there?

Usually an agreement can be made as to who is to live in the family home (especially when children live there as well) until final orders are made. However if an agreement cannot be reached you may have to make an application to the court.

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Sad child family law

Children

We believe we have reached an agreement as to care of the children and wish to formalise the agreement. What do we do now?

You will need to have Consent Orders prepared. These are a written agreement which states all arrangements related to the care of the children including who the children live with, visitation, shared living arrangements, religious instructions, health care and so on. Consent Orders are sealed by the Court making them binding on the parties which helps greatly if a dispute later arises.

We can’t agree. What now?

You will first need try to resolve the matter through formal dispute resolution. If an agreement still cannot be reached, you will need to apply to the Court for Parenting Orders.
The Court considers first and foremost the best interests of the child. They take into account many matters including the views of the children, the current care provided, past care provided, extended family support and previous family violence or neglect issues.

My former partner has broken the orders. What do I do?

If a party contravenes the Court orders, you should contact your solicitor. Options are to bring it to your former partner’s solicitor’s attention, attend dispute resolution or apply to the Court for enforcement of the orders, depending on the seriousness of the breach and it’s effect on you and the child or children..

I don’t spend any time with my children. Do I still need to pay child support?

Yes. Even if you no longer have contact with your children you still need to support them financially, if assessed or ordered to do so.

I want to travel overseas with the child. Is this possible?

If your former partner agrees then you can. If they disagree then you will need to apply to the Court.


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Divorce couple

Divorce

When can I apply for a divorce?

You can apply for a divorce after you and your former spouse have been separated for at least 12 months and there is no likelihood of resuming married life. This is even if you both continued living under one roof.

We haven’t been married long. Does that make a difference?

If you have been married less than two years the Court requires you to attend counselling prior to filing for Divorce.

Can I object to a divorce application from my spouse?

You can only object to a divorce if you have not been separated for at least 12 months or if the divorce was filed in the wrong jurisdiction.

I married overseas – can I get a divorce in Australia?

If you were married overseas, you can apply for a divorce in Australia if either you or your spouse are an Australian citizen or live in Australia permanently, or if your children were born in Australia and you usually live in Australia.

What about Fault?

The principle of no-fault divorce was established by the Family Law Act 1975 meaning the court does not consider why the marriage ended. The only grounds for divorce is that the marriage has broken down irretrievably and that you have been separated for at least 12 months.

When is the actual divorce finalised? When can I remarry?

In most cases the divorce is finalised one month and one day after the divorce hearing date.


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Young man and woman are shaking hands

Binding financial agreements

What is a Binding Financial Agreement?

Formerly known as a pre-nuptial agreement or pre-nup, a Binding Financial Agreement is a legal agreement setting out intentions as to division of property and other financial issues in the event of the breakdown of a relationship or marriage.

When can you get one?

You can have an Agreement prepared prior to commencement of, during or after the breakdown of the relationship or marriage.

Are they legally binding?

Yes, If you and your partner enter into a Financial Agreement and later separate, your assets will be divided as set out in your Financial Agreement. However, for the Financial Agreement to be binding, strict legal requirements must be met, including a requirement that each party obtains their own independent legal advice.

Can defacto or same-sex couples enter into a Binding Financial Agreement?

Yes.

Can a Binding Financial Agreement be set aside by the Court?

In some circumstances it can. These include one or both parties not receiving legal advice prior to signing, some assets not being disclosed in the agreement, if the circumstances changed to the point that the agreement is no longer relevant or if there was duress or pressure put on a party to sign the agreement.

Can I prepare my own Financial Agreement?

The law regarding Financial Agreements is complex and people’s individual circumstances are too varied to recommend anyone other than a trained, experienced Family Law Solicitor to prepare the document. As a solicitor has to also give advice for the document to be legally binding, you need to see a solicitor anyway and very few solicitors would be willing to sign off on a homemade agreement as it is unlikely to comply with all requirements to make it binding.

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