Family Law

Timely expert advice goes a long way in resolving your family law legal issues and ensuring that you and your family’s interests are protected. We can help you with:

• property settlements (married or de facto)
• financial agreements (prenups and post separation binding financial agreements)
• divorce applications and serving divorce papers
• consent orders and parenting plans
• spousal maintenance and child support
• mediation for property and parenting matters
• legal representation in the Federal Circuit and Family Court

Getting a divorce

Generally, the court will grant a divorce if you and your ex-partner have been living separately for twelve months and there is no likelihood that you will get back together. Despite the requirement to be ‘living separately’, it is recognised that for various reasons, separated couples may continue to reside at the same premises. You should discuss any such arrangements with your lawyer when preparing the application for divorce.

If you have been married for less than two years, you will most likely need to attend counselling and file a certificate with your application. If you and your ex-partner have children under 18 years of age, the court will need to be satisfied of the arrangements that are in place for their care and wellbeing before granting the divorce.

Family law property settlements

Getting a divorce does not finalise your financial affairs, and you do not have to wait until you are divorced to make arrangements to divide your property. De facto couples are also eligible for property settlements under family law legislation. Note however, the following time limits:

• after a divorce is finalised, there is a twelve-month limitation period within which to bring proceedings for a property settlement or spouse maintenance.
• for de facto partners, any court proceedings for a property settlement must be commenced within two years of separation;

Settling your property and financial arrangements without going to court

With the assistance of their lawyers most ex-couples can finalise their property affairs out of court. If you and your ex-partner have agreed on how your property should be divided, your negotiations can be finalised through a financial agreement or consent orders.

A financial agreement (known also as a binding financial agreement) is a written contract between the parties that formalises the division of their property without intervention of the court. To be valid, the agreement must comply with certain formal requirements and both parties must receive independent legal advice. Financial agreements can also be made before or during a relationship to pre-determine how property will be divided if the marriage or relationship breaks down in the future. Financial agreements are often considered a less formal way to divide property and are not always recommended by lawyers.

Consent orders are filed with the court and are generally considered a more formal way to finalise your property affairs. The parties must make full disclosure in their application and, if the court believes the proposed orders are just and equitable, they will be granted and made legally binding. You do not need to attend court however it is important to receive legal advice before agreeing to consent orders to ensure that your rights are protected and that the proposed outcome is fair and reasonable.

Arrangements for your children

Children’s matters cover issues such as who a child will live and spend time with, who will have parental responsibility for the child, how a child will communicate with a parent when they are not in their care, and matters relating to health care or education. It is beneficial if parents can come to an agreement between themselves about the ongoing care of their children. This can be informal, although it may be best to have these arrangements set out in a parenting plan or consent orders.

A parenting plan is a written agreement documenting the arrangements made between the parties. A parenting plan can be registered with the court but is not legally enforceable. Parenting orders are legally enforceable. They can be made between the parties by consent and filed with the court. Alternatively, they may be made by the court when parties cannot agree on parenting arrangements.

Going to Court

If you are unable to reach an agreement regarding your family law matter or if you require urgent orders, an application may be filed with the Federal Circuit and Family Court. The matter will be set down for hearing and a legally binding decision will be made by the court.

In most cases, the court must be satisfied that you have attempted to resolve your issues before proceeding to a hearing, and you will need to participate in dispute resolution mediation. For parenting matters, unless there are extenuating circumstances, attending family dispute resolution is compulsory before starting court proceedings.

When determining property matters the court will consider a range of factors, involving an assessment of:

• the property pool – the parties’ assets, liabilities, and financial resources
• the parties’ respective direct and indirect financial contributions
• the parties’ non-financial contributions to the relationship
• the parties’ future needs, considering their relative earning capacities, state of health, education, and responsibilities as primary carer of any children
• a just and equitable outcome when considering all the circumstances

All decisions about parenting arrangements must be made in the best interests of the children. The primary considerations in deciding the best interests of a child are the benefit of children having a meaningful relationship with their parents, and the need to protect children from harm. Greater consideration is given to the need to protect children from harm.

Shared parental responsibility means that parents are required to consult each other regarding long term decisions for the children. There is a presumption that shared parental responsibility is best for the children, but this will not always be the case. Shared parental responsibility does not necessarily mean that the children will spend equal time with each parent. The law ensures that the best interests of the children are served first, and a range of factors will be considered.

Family law legal disputes present some of the toughest challenges to our clients. We provide expert advice and guidance to support you through this time. We foster a pragmatic approach to resolving your issues and can help with a range of alternatives to going to court and pre-court solutions to reduce the cost, uncertainty, and stress of going to court. That said, we are experienced advocates with a strong understanding of court processes and have assisted many clients with difficult cases in the Federal Circuit and Family Court.

If you need assistance, contact one of our lawyers at [email protected] or call (02) 4970 5050 for expert legal advice.