You’ll get the better half with our family law knowledge and experience.
In the event of a breakup in your relationship, our Family Law team is here to help you navigate the legal system.
We have 12 years of combined experience, we understand both the case at hand as well as the individual.
We strive for preeminence in the legal space and fight to win every matter that comes into our office, regardless of size or publicity.
Our law firm is available and in reach to provide expert advice when you need it most, 24 hours a day, 7 days a week, 365 days a year.
Truth Lawyers ensures you are kept informed and updated throughout the process whilst developing the strongest case possible.
Each state in Australia complies with the Family Law Act 1975 (Cth), however, the Family Law system in Western Australia differs slightly from that of the other states.
Since Western Australia hasn’t referred its Family Law powers to the Commonwealth, it operates differently. Thus, married couples are dealt with by the Commonwealth, while de facto couples are handled by the State. Family Law is the only area of law handled by the Family Court of Western Australia, so this impacts property settlement and parenting matters for de facto couples.
Family law consists of three components:
Separation
Parenting arrangements
Property settlement
Courts usually prefer to see that parties have tried to resolve their issues through alternative dispute resolution, such as mediation, before considering each component.
Currently, family court matters are heard in the following courts:
Family Court of Australia (for less complex matters), and
Federal Circuit Court of Australia (for more complex matters e.g. family trusts, etc).
Currently, these courts share an online service portal where you can lodge documents and pay court fees.
In a recent media release, the Attorney-General’s Department announced its intention to merge the two courts so that Family Law matters would be heard in the Federal Circuit Court.
Families experiencing breakdown can access support services such as counselling, domestic violence assistance, referrals to mediation services, etc. Talk to our team to find out what services are available to you.
Relationships can be classified into two types, marriages and de facto relationships.
No-fault divorce was introduced by the Family Law Act 1975 (Cth). It means you don’t have to prove the extramarital affair caused the relationship breakdown.
You will need to complete mediation or marriage counseling before the court will grant you a divorce if your marriage ends within two years. Family violence may be an exception.
Separation must be proven for at least 12 months before a divorce can be sought. This can be proven through separate utility bills, change of license address, etc. While still living in the same house, you may be able to separate from your spouse. A division of utilities, affidavits from friends or family, etc., can prove this. People with children often separate but live together to avoid causing their children distress.
After you have been separated for 12 months, you can file an Application for Divorce. You may file on your own or jointly.
If you do not have children or do not require property settlement, the process is straightforward. If you have children under the age of 18, you will be required to attend a hearing.
When you live with your partner in a domestic capacity for more than two years, you are considered to be in a de facto relationship.
De facto separations don’t require an order from the courts, unlike marriages.
Court orders may be required if you have children or property, including debt.
In the event that one partner cannot meet their own reasonable expenses from their own income or assets, spousal maintenance is paid to the other.
Spousal maintenance can be divided into two types:
Spouse maintenance – you must apply within 12 months of your divorce being granted
De facto partner maintenance – you must apply within two years of the breakdown of your relationship
Courts consider a person’s:
Age and health
Income, property and financial resources
Ability to work
Suitable standard of living
If the marriage has affected your ability to earn an income
The court considers the best interests of the child before making a decision. Additionally, the court prefers that parents work together rather than rely on the court to make decisions regarding their children.
Among these decisions are:
Who the children live with
Where the children go to school
Who the children can spend time with e.g. family members, family friends, etc.
Medical decisions
Who the children spend holidays with
It is a common misconception that equal shared parental responsibility means equal access to or time with the children. The care of their children is the responsibility of both parents, but it may not be safe or practical to have equal access to or time with them both at the same time.
As above, a parenting agreement is an agreement between the parents about how they will take care of their children.
The terms of a parenting agreement can be informal or formal, and can be amended at any time if circumstances change.
A parenting agreement can be a verbal or written agreement between parents. A written agreement can be drafted by the mediator during your mediation sessions.
As children grow up, their circumstances change quickly, such as starting school, extracurricular activities, etc. An informal parenting agreement cannot be enforced and is not binding.
Parenting agreements, also called consent orders, are written agreements reached by both parents that are then signed by the Family Law courts. They are binding and enforceable and courts take breaches seriously.
Court consent orders specify the day-to-day care arrangements for children. They are enforceable and the court takes them seriously if they are violated.
Applicants for parenting orders can apply directly to the court, but if they have not attempted to establish a parenting agreement before applying, it is highly likely that the court will send you to mediation.
Prior to entering into a new parenting agreement, it is recommended that you seek legal advice.
An ongoing care plan for a child is paid by the non-residential parent to the parent who resides with the child. In addition to impacting your will, your Family Tax Benefit, and any new relationship you begin, it could also be self-managed (informal), registered assessment or court-ordered.
A self-managed child support agreement does not require a formal assessment or registration.
How much to pay
When to pay
How to pay
Child support can be assessed and determined by Services Australia:
Who needs to pay child support
How much needs to be paid
When payment needs to be made
Payment is assessed based on:
The parent’s income and combined income
How much time each parent cares for the child
The age of the child
If the child is over the age of 18, has a disability, or is enrolled in further education, the court may order the parent to pay child support. Services Australia can handle the assessment and payments of child support if the court orders it.
To prevent or resolve disputes, financial agreements (pre-nuptial agreements) can be drafted before, during, or after a relationship begins. Although they apply to both married and de facto couples, de facto couples can only benefit from them if they live in NSW, Queensland, Victoria, South Australia, the Northern Territory, the ACT or Norfolk Island when the agreement was signed.
The following are examples of financial agreements that are binding and enforceable:
Following a separation, the financial settlement includes superannuation,
Spousal maintenance upon separation, and
Incidental issues
There are time limits for property settlement, so it is advised that you complete it as soon as possible.
If you are:
Married: applications for property settlement must be made within 12 months of your divorce being finalised
De facto: applications for property settlement must be made within two years of the breakdown of your relationship.
The following methods can be used to settle a property:
An agreement between the parties without going to court
If both parties agree, you can formalise your agreement by applying to the court for consent orders
If both parties are unable to agree, you can apply to the court for financial orders
It will take into account:
Your assets, debts and their total value e.g. house, cars, superannuation, loans, credit cards, etc
Direct financial contributions by both parties e.g. wage or salary
Indirect financial contributions by both parties e.g. gifts and family inheritance
Non-financial contributions e.g. child-raising, homemaking, etc
Future requirements e.g. age, health, financial resources, ability to earn, caring for children, etc.
Mediation is a dispute resolution process that assists parties to come to a mutual agreement to resolve their disputes. In the case of divorce or separation, mediation is a recommended first step. People find mediation to be successful because it provides them with an opportunity to be heard and to apply solutions that are satisfactory to them.
The court has the discretion to refer you to mediation if you have not tried mediation before applying to the courts for orders. After hearing your case, the court’s solution may not be satisfactory to you.
It is possible for a mediator to issue a section 60I certificate stating that mediation was not successful or appropriate, after which you can apply to the courts for orders. Mediation may be unsuccessful for the following reasons:
Domestic violence, for example, was considered inappropriate by the practitioner (mediator)
There is a refusal to participate by one or both of you
Although you both tried to resolve your dispute, you were unable to do so
A genuine attempt to resolve your dispute was not made by either of you
Both of you tried to resolve your dispute, but the practitioner (mediator) decided it was no longer appropriate to proceed.
The mediator has the discretion to decide whether the mediator will require your lawyer to attend mediation (legally assisted mediation). Mediation is usually conducted without your lawyer present.
You should consult with one of our family lawyers for legal advice tailored to your specific legal matter. The above information is general legal information and should not be interpreted as legal advice.
Your partner should not be prevented from having access to the children if there are no court orders in place and there is no concern for the children’s safety. As the court does not view this behavior as being in the child’s best interest, it does not look favourably on it.
There are a number of expenses involved in separating, in addition to the cost of your family lawyer. Here are some common expenses associated with separating:
Application for divorce = $930*
Application for consent orders = $170*
Initiating application – interim and final parenting and property (the Family Court of Australia) = $715*
Initiating application – interim and final parenting and property (the Federal Circuit Court of Australia) = $715*
Daily hearing fee = $655*
Fees may be reduced if you can prove financial hardship or have a government concession card.
*These figures are accurate as of the publication date of June 2021.
No. Unless there are any complications related to your separation, such as being married for less than two years, family violence, children under 18, etc., you may complete and file all the necessary paperwork without going to court. In order to avoid any complications that might arise, it is still advisable to receive legal advice tailored to your specific circumstances.
In a child parenting order, or parenting consent order, parents determine their contact arrangements. In addition to stating how much time each parent will spend with the child/ren, they also specify whether or not the parties will be restrained when they are with the children, as well as whether or not they have equal parental responsibility.
If the parties agree to change the orders or if the orders no longer consider appropriate (i.e. they order time with the children during the day because they were made before the children attended full time school), parenting orders are binding until the children turn 18.
It is no longer common for Australian family law to use the term custody, but traditionally it refers to which parent cares for the children the most. According to parenting orders, the mother may have time with the children every second weekend and for a night during the off-season, which means the father has the responsibility of “primary care” because the children stay with him the rest of the time.
An arrangement similar to shared care (i.e. seven days per parent) is considered joint custody. There are endless reasons why care arrangements for children are the way they are and none reflect the love and care each parent has for the children.
It adjudicates family law disputes between parents, guardians, and/or other interested parties. Family courts generally only hear cases that are complex and require trials or hearings that will take more than three to four days to complete. In addition to hearing matters relating to parenting and property, they can also hear matters that have been tried through mediation or conciliation but have not been successful. Each state has its own waiting list for the family court, the highest court in the family law sector.
Located below the Family Court, the Federal Circuit Court is responsible for hearing your case first. Most interim hearings are held in the Federal Circuit Court. Your matter will be decided by the Federal Circuit Court whether it should be heard in the Family Court.
A parent can stop another parent from seeing their child in cases of physical or sexual abuse or neglect and lack of ability to care. It will determine whether a parent gets to have custody of their children based on their capacity to care for them. In such cases, child safety services, police or courts are usually the ones who have intervened and given sole custody to the other parent.
However, a parent can prevent the other parent from seeing the child/ren without an appropriate reason prior to the court order being put in place. Despite the fact that this is not the way it should work, it is becoming increasingly common to withhold children from their parents for a variety of reasons, such as pettiness, safety concerns, or just hatred. Whenever you find yourself in one of these situations, please contact a lawyer immediately to prevent the situation from escalating.
Divorce settlements are determined by four categories of assets;
1. Assets;
2. Liabilities;
3. Financial Contributions; and
4. Non-Financial Contributions.
Besides financial contributions, non-financial contributions include things like staying home with children or running the household, which are equally important. If not for one person staying home to complete these tasks, the other could not have worked as much as they did. Contributions like inheritances or lottery wins will alter the
A lawyer should properly consider and divide your assets to ensure that there is an equal split in favor of the person who made the contributions.
In a de facto relationship, assets are divided similarly to those in a divorce because the basic principles are the same.
For divorce to be legal in Australia, there is no need to provide a reason. The only requirement is that the relationship must be irreversible or irreconcilable. Divorce may be caused by infidelity, dislike, communication breakdown, etc. There are no specific main reasons for divorce.
Despite the fact that divorce is supposed to be a last resort, it appears to be the first option for many. If you have been married for less than two years, you must undergo marriage counseling before you can finalise your divorce. Divorce is only necessary if the gap between you cannot be bridged, no matter what the reason.
No, a property matter does not have to be litigated. Settlements can be agreed by consent and orders can be made which are formalised by the court.
It is possible to settle property disputes by either following the consent process, or by participating in a mediation conference with an accredited mediator. In this process, you will discuss all your assets and liabilities and try to find a common ground that they can agree on. Contributions, future needs, and children’s care arrangements will be taken into consideration.
As a second option, the matter may proceed to court where a judge will hear both sides’ arguments and decide what is fair and equitable.
Before you can apply for a divorce in Australia, you need to be separated for 12 months. There is no way for people to know exactly when they separated, and both parties could have a different idea of when the relationship ended.
Despite this, the fact that most people cannot afford to move out of their home at the time of separation means they must stay together while separated. If this is the case, then you will need evidence from friends or family by way of an affidavit that confirms you have been separated for at least 12 months at the time you apply for divorce.
How long does it take to apply for spousal maintenance?
It is similar to a property settlement when it comes to spouse maintenance; if you are in a de facto relationship, you have two years. Usually, however, you must prove your need for spouse maintenance immediately. As with divorced couples, if you are separated but still married, you will require maintenance right away.
Between separation and the child’s 18th birthday, a parent may apply for child support. It is an entirely separate aspect of family law from divorce, and a parent’s responsibility to both the primary care provider and the child. The Child Support Agency is able to calculate which rate a parent is to pay and whether or not they are in arrears for what they
If a parent has not paid child support after separation for a period of time, they will likely be in arrears.
Some people may be exempted from seeking child support from the other parent due to family violence concerns. Their Centrelink benefits may then be adjusted accordingly.
To qualify for divorce, you must be separated from your spouse for a minimum period of 12 months, which means you must have lived separately for that period, and your family and friends must consider your relationship over. Divorce can only be granted if the relationship has irretrievably broken down.
Providing affidavits to the court may be required if you and your former spouse have been separated but still live under the same roof. A friend or family member who is familiar with your situation will need to swear under oath that they are aware that you have been separated but are still living with your partner.
You can have your marriage annulled if the circumstances of your marriage fall within certain exceptions. In order to prevent marriages from being recognised, these exceptions apply to marriages that were induced through coercion, manipulation, or if one or both parties lacked understanding of their plans.
Generally, you can seek a divorce once you have been separated for 12 months. However, if you have been married for less than 2 years, you must attend marriage counselling before you can seek a divorce.
In the event you die before your divorce is finalized, your assets will not automatically transfer to your husband if you are separated or seeking a divorce.
Your divorce will be null and void if you die and you are already divorced, but you have not yet changed it because your husband will no longer be your next of kin. As soon as you contemplate divorce, you should update your will so that contingency plans are in place.
An Australian pre-nuptial agreement is referred to as a binding financial agreement. Every couple has the option of making an agreement before committing to one another outlining how they will divide their assets in the event of separation.
You have few options in the event that the other party does not sign the agreement. The best way to proceed is to engage a lawyer to help you negotiate an agreement that both of you are comfortable with. It is difficult to force someone to sign a document they do not want to.
A parent order can be obtained at any time for grandchildren. Grandparents play a significant role in children’s lives, and if they are being cut off, they have just as much right to have a relationship with their grandchildren as parents. To obtain parenting orders, either all parties must agree to them by consent or the court must make the order (with all parties aware of the court’s application).
In these types of cases, it is crucial that you demonstrate to the court that you have been an integral part of the children’s lives and that they would be adversely affected by their absence.
You can technically prevent any member of your family from seeing your children if you want to. However, if you want to prevent your ex-husband or ex-partner from seeing your children
It is important to prove that certain people pose a risk to the children before letting them see them. If they are dangerous, or a bad influence because they take drugs, consume excessive alcohol, or in extreme cases are considered sexual predators, they would pose a threat to the children if left in their care. When someone wants to spend time with your children, they need to pose a real risk, not just because you dislike them.
It is not possible to take your children to live overseas without a court order or agreement from the other parent. This is a major parenting decision that is likely to break the children’s relationship with their other parent.
However, if you want to take the children overseas for a holiday then that is more achievable. It may still be necessary for you to obtain a court order, but the process is much easier. The court order or parenting agreement for your child may include provisions for this as well. You may be required to provide a confirmation of your return tickets or to get written permission from the other parent to be able to go.
The typical Australian family no longer exists. While a nuclear family still exists (mum, dad, kids), the way society views a family has evolved. Families now include nuclear families, same-sex parents, step-siblings, single parents, etc.
Fill out and submit the booking form for us
Liability limited by a scheme approved under Professional Standards Legislation.
All Rights Reserved to Truth Lawyers © 2023