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Family Law

If you are separating from a spouse or domestic partner, we can guide you through the legal process so you can make informed decisions in the best interests of you and your family. Wherever possible, we encourage clients to resolve their family law matters without going to court. In most cases, we believe this provides the most viable and beneficial outcome for all involved.

We can assist you with:

  • Divorce
  • Parenting matters
  • Property settlements
  • De facto property settlement
  • Family and domestic violence matters

Divorce

An application for divorce can be made if a marriage has irretrievably broken down. The application is made through the Federal Circuit and Family Court of Australia. It does not require the consent of both partners and in most cases, you will not need to attend court. You must be separated for 12 months before applying for a divorce however, separation does not necessarily require you to live in separate residences.

If you have children under 18 years, the court will also need to be satisfied that appropriate arrangements have been put in place for their care.

A divorce order is not required before you settle your financial affairs or sort out arrangements for the care of your children. If a divorce has been granted there is a 12-month limitation period within which to bring court proceedings for property settlement or spousal maintenance.

De facto relationships

De facto couples can also access remedies under family law legislation. When a couple have not been legally married, various factors will be considered to determine whether they were in a de facto relationship. These include the length and nature of the relationship, financial dependence or interdependence, the care and support of children, and whether the relationship was registered under state law.

You may need to prove that you were in a de facto relationship before accessing rights under family law legislation and we can assist with this.

For de facto partners, any court proceedings for a property settlement must be commenced within two years of separating.

Same sex couples

Family law in Australia now applies equally to heterosexual couples and same sex couples. This is the case for both married and de facto relationships. Apart from some exceptions, same-sex couples who were married overseas may now automatically be considered legally married in Australia, irrespective of when the marriage took place.

The retrospective recognition of same-sex marriages brings about important legal considerations, particularly when it comes to estate planning. If you are uncertain about the validity of your marriage, and how it affects your estate planning or other legal affairs, you can discuss your concerns with a lawyer.

Property settlement

A property settlement involves the division of assets, liabilities, and financial resources between a couple whose relationship has broken down. It legally finalises their financial affairs enabling each to move on with their respective financial activities. A legal property settlement may also facilitate transfer duty concessions when transferring certain assets such as real estate.

A family law property settlement can be finalised through a financial agreement, consent orders or court proceedings.

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 prescribed requirements and both parties must receive independent legal advice.

Financial agreements can also be made before or during a sound relationship to pre-determine how property will be divided if the marriage or relationship breaks down in the future.

Financial agreements are generally considered a less formal way to divide property and may not always be recommended by lawyers after a relationship ends.

Consent orders are filed with the court and are 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.

Settling your property matters through 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 of Australia. 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, and you will need to participate in dispute resolution.

Parenting arrangements

Parenting arrangements can address issues such as where children live, how much time they spend with each parent and other matters regarding education or healthcare.

Under family law legislation parenting arrangements must be made in the best interests of the child. There is a presumption that shared parental responsibility is best for the child, but this will not be the case in all situations. Shared parental responsibility means that parents are required to consult each other regarding long term decisions for the child and does not necessarily mean that the child will spend equal time with each parent.

Parenting arrangements can be achieved through a parenting plan, consent orders or court proceedings. Unless there are extenuating circumstances, attending family dispute resolution is compulsory before starting court proceedings for parenting matters.

Family violence and domestic violence orders

The Family Law Act contains provisions aimed specifically at protecting children and family members from violence and abuse. The definitions of ‘abuse’ and ‘family violence’ are broad and generally align with most state-based family violence legislation. Family violence is actual or threatened conduct by a family member towards another family member or property, that causes a person to be fearful or anxious about his or her safety or wellbeing. A child is exposed to family violence if he or she hears or experiences the effects of family violence.

A domestic violence order is a generic term used for an order made under a specific law to protect a person from family violence. Orders may be made through a state court or the Federal Circuit and Family Court of Australia.

We can assist you to apply for a domestic violence order to help protect you, your children, and/or other family members from domestic violence. If you are in immediate danger, we urge you to contact the police for urgent assistance.

What if a domestic violence order is made against me?

The legal and practical implications of having a domestic violence order issued against you are significant and can impact your ability to communicate with or spend time with your children. We recommend you contact us immediately if you have been named as the respondent in an application.

If you or someone you know would like more information, needs help or advice, please contact Gina Hagan on 07 5576 6009 or 0426 288 899 or email [email protected]