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Family Law FAQ
Divorce is the legal dissolution of the marriage and has no effect on the parenting and property matters (except that parties must commence property proceedings within 12 months of the Divorce becoming final). You must be separated from each other for 12 months, before you can file for divorce.
Separation is a traumatic time for everyone involved including the children. It is best to agree, if possible, on the future arrangements, such as how parental responsibility will be shared, who the children will live with, the times that each parent will see the children, and their schooling and other matters affecting the children’s welfare.
The Federal Government has established Family Relationship Centres throughout Australia that provide information and alternative dispute resolution services for separated parents (or parents contemplating separation). Family Relationship Centres cannot provide legal advice. Therefore, it is essential that you are informed of your legal rights and responsibilities before negotiating or agreeing to any parenting arrangements. Clients are not legally represented in sessions conducted at Family Relationship Centres.
Attendance at Family Relationship Centres and other mediation and alternative dispute resolution forums may not be appropriate in circumstances such as where there are domestic violence and/or child abuse allegations.
You can go to Court if there are disputes relating to children and the Court will determine what is in the “best interests” of the children in relation to issues such as where they shall live, contact arrangements and any other issues that cannot be agreed upon. If parties are unable to reach agreement as a result of attending the Family Relationship Centre, they may then commence Court proceedings under the Family Law Act.
The Family Law Act encourages separated parents to consider resolving parenting issues by informal agreements known as Parenting Plans. Parenting Plans must be in writing and signed by both parents and must be made free from any threat, duress or coercion.
Parenting Plans are not registered with the Family Court and are not “enforceable” and do not create any legal obligations, unless they are registered with the Family Court of Australia.
However, the terms of the most recent Parenting Plan can be taken into account when the Court makes a parenting order. Any previous parenting orders made by the Court can be amended by a new parenting plan. Accordingly, parents should always obtain independent legal advice before signing any document regarding the arrangements for their children as such agreements may constitute a parenting plan and could play an important part in the Court setting aside existing Court orders.
Although parents should consider making parenting arrangements using parenting plans in appropriate circumstances, where parents want certainty, predictability and enforceability any arrangements should be formalised as parenting orders made through the Court. In circumstances of violence and abuse arrangements should always be by way of Court order.
For reasons of stability and certainty, most parents prefer to formalise any arrangements by way of Court orders prepared by one of our Solicitors. This can be done relatively easily where the parties agree (Consent Orders). The process for making Consent Orders is administrative and does not require the attendance of the parents or their lawyers in Court. Each parent must obtain independent legal advice before signing the Orders. Each Solicitor must sign and file a Certificate of independent legal advice with the Application and proposed Orders and file the documents with an appropriate Court exercising the Family Court jurisdiction.
If parents cannot agree on the arrangements for their children, they can apply to the Court for a judicial determination.
In the absence of allegations of abuse of the child and family violence the Court must, when making a parenting order, apply a presumption that it is in the best interests of the child for the child’s parents to have equal parental responsibility for the child. The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the parents to have equal responsibility.
When making parenting orders where the parents have equal shared responsibility, the Court is also to consider making parenting orders that allow the child to spend equal time or substantial and significant time with each parent.
Substantial and significant time includes weekends, school holidays, weekdays (not being holidays), time that allows the parent to be involved in the child’s daily routine and events significant to the child and also time that is significant to the parent. When considering to make parenting orders that provide for equal time or substantial and significant time with both parents the Court must be satisfied that such an order is in the best interests of the child and is reasonably practicable.
The primary consideration when making all parenting plans/orders is always the best interests of the children. The Court and parents must consider the benefit to the child of having a meaningful relationship with both the child’s parents and also the need to protect the child from being subjected to, or exposed to, abuse, neglect or family violence.
Division of property depends on a number of factors including (but not limited to): the length of the marriage, who contributed what, whether or not you are able to work and how much you and your spouse are able to earn, together with other factors covered in the Family Law Act including superannuation and the needs of the parties and the children.
This is determined by the Child Support Agency using a formula which takes into account what the payer earns and the number of children to be supported, the income of the carer, and the amount of time the children spend with each parent.
The assessment can be reassessed and reviewed and “the review” by the Child Support Agency, may also be appealed. One of the factors that can be considered is the cost associated with spending time with the children. There are other factors set out in the Child Support (Assessment) Act.
In circumstances where a party to a marriage or de facto relationship is not capable of adequately supporting themselves and the other party has a capacity to contribute to the financial needs of that other party, the Court may order the party to pay Spousal Maintenance to support that other party.
The court encourages ongoing negotiations. In property matters a conciliation conference is often held. If those procedures do not work, a Judge will decide your case.
You can go back to the Court which can enforce the orders and as a last resort the Court can punish someone who refuses to obey orders made by the Court.
The law recognises de-facto relationships if you have been together for more than 2 years, have a child or have made a significant contribution to the property of the other party.
Your lawyer knows the law and procedures to assist in resolving the issues for you. Sometimes it is very hard to be objective when involved in relationship breakdown and your lawyer can help you to see the various options that are reasonably available to you. Disputes regarding children can be very emotional and our Family Lawyers are sensitive to your needs as a parent during these difficult times. Our Family Lawyers will assist you in a compassionate and professional way. We are committed to resolving family law matters by negotiation, where appropriate.