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CHILDREN AND PARENTING
Parents can agree on any living arrangements they want for their children. If parents cannot agree on arrangements they can ask the Family Court to decide. The Court will consider what is in the best interests of the children. The Court may decide that it is in the best interests of the children to spend equal time with each parent, but this is not always the case.
The term “custody” is no longer used by the Family Court. When people talk about “custody” they are usually referring to who children will live with and who will make decisions about children.
If parents cannot agree on these issues, they can ask the Court to decide. The Court must give paramount consideration to the children’s best interests when making a decision. The Court must consider a range of factors when deciding what is in a child’s best interest.
The Court will make orders about who children “live with” and “spend time with” and who will have “parental responsibility” for children. Parental responsibility relates to decision making about children.
Most often the Court will order that parents have equal shared parental responsibility for children, even if the children are mainly living with one parent. If parents have equal shared parental responsibility, this means that decisions about long term issues such as education, health and religion must be made by the parents together. However, in some cases only one parent will be given responsibility for these decisions.
Under the Family Law Act, a child has a right to know and be cared for by both their parents, to the extent that this does not compromise the child’s best interests.
If a child does not want to spend time with the other parent, it will be important to find out why. The child’s views are one of the many things the Court has to consider when deciding parenting orders. However, this consideration will be in the context of the age and maturity of the child and whether anyone else is influencing the child’s views.
The Court may decide a child should not see the other parent, or put limits on the child’s contact with the other parent, if it will put the child at risk of violence or abuse.
The Family Law Act focuses on the rights of children, not of parents. The object of the Act is to:
● enable children to have meaningful relationships with both their parents, to the extent that this does not compromise children’s best interests
● protect children from physical and psychological harm, neglect and violence
● ensure children receive proper and adequate parenting
● ensure parents fulfil their duties and responsibilities.
As a parent, unless there are issues of abuse or violence, you can reasonably expect to:
● have ongoing involvement in your children’s lives
● see your children regularly, including on weekdays, weekends and school holidays and
● be involved in ongoing decision making about your children.
Most grandparents see their grandchildren with the agreement of the children’s parents. If that is not the case grandparents can apply to the Family Court for an order for their grandchildren to spend time with them. The Family Court recognises that grandparents and other family members are significant to the care, welfare and development of children.
Property Settlement and Financial Matters for Married Couples and De facto Couples
It is always better to agree on a property settlement than go to Court. However, before you make a final agreement or divide your property it is wise to obtain legal advice about whether the agreement is fair to you.
A family lawyer can also assist you in formalising your agreement by obtaining Consent Orders through the Family Court. This will make your agreement legally binding and protect you from further property claims. You do not have to attend Court to have the Orders made.
Inheritances are usually treated by the Court as an extra contribution by the person who received the inheritance. Whether the other person will share in your inheritance will depend on a number of factors, including when the inheritance was received, how much the inheritance was, what other assets there are and what future needs you and the other person have.
You can finalise your property settlement any time after you separate – you do not need to wait until you are divorced.
There is a time limit of 12 months to start Court proceedings after you are divorced. The Court can give permission to start proceedings after this period in limited circumstances. However,you should not assume that permission will be granted.
Spousal maintenance is an ongoing periodic or lump sum payment from one spouse to the other spouse for living expenses. It is separate from child support which is paid for children’s expenses.
There is no automatic entitlement to spousal maintenance. Spousal maintenance is paid by agreement or by Court Order. To be successful in a claim for spousal maintenance you must be able to establish that your spouse can reasonably be expected to provide financial support.
The Court can order maintenance to be paid by one partner to another when a de facto relationship breaks down if the relationship lasted 2 years or more; there is a child of the relationship; one party made a significant contribution during the relationship; there would be injustice if the Court did not make an Order for property settlement; or the relationship was registered under a law of a State or Territory.
The person seeking maintenance must also satisfy the Court that their former de facto partner can reasonably be expected to provide financial support to them
If you and your partner have a relationship as a couple and are living together on a domestic basis then you are regarded as being in a de facto relationship.
Generally a de facto relationship commences when a couple start living together in the same home but this is not always the case. In certain circumstances a couple can be regarded as being in a de facto relationship even if they have two homes.
If there is a dispute about whether a de facto relationship exists and the Court is asked to decide it will consider a range of matters including whether:
● there is a common home
● a sexual relationship exists
● there are joint finances
● one person is financially supporting the other person
● the couple present themselves publicly as a de facto couple
The Family Law Act recognises that de facto partners can be same sex or heterosexual.
In children and parenting matters de facto couples are treated exactly the same as married couples. These disputes are decided by the Family Court under the Family Law Act.
De facto couples who separated after 1 March 2009 can apply to the Family Court for a property settlement. De facto couples who separated before 1 March 2009 can also apply to the Family Court for a property settlement if they both agree to this.
However, the Court will only make Orders for a property settlement if:
● The de facto relationship has lasted 2 years or more or
● There is a child of the de facto relationship or
● One party made a significant contribution during the relationship and there would be injustice if the Court did not make an Order for property settlement or
● The de facto relationship is or was registered under a law of a State or Territory.
If both parties agree then the Family Court can decide your property matter. Alternatively you may be able to apply to the Victorian State Court for a property settlement under the Relationships Act.
Either party can apply for a property settlement within 2 years of separating. The Court can give permission to apply outside of the 2 year period in limited circumstances. However, you should not assume that leave will be granted.
You need to be separated for 12 months before you can apply for a divorce. You do not need to wait until then to work out arrangements for children and a property settlement.
Applications for divorce are made to the Federal Magistrates Court. You can lodge the divorce application yourself or we can assist you with this.
Once you have been separated for 12 months you can apply for a divorce, even if you and your spouse are still living in the same house. In this situation you and a third person will need to file affidavits with the Court.
Yes, provided you or your spouse:
● are an Australian citizen or
● regard Australia as your home and intend to live here indefinitely as a citizen or resident or
● ordinarily live in Australia and have done so for the last 12 months.
If your marriage certificate is not in English you will have to provide the Court with an authorised translation.
Separation is when a relationship between spouses or de facto partners ends.
Sometimes people disagree about the date of separation. This will generally not cause a problem. However, on occasion the date of separation can be relevant to how property is divided.
When there is a dispute about the date of separation and the Court needs to make a decision a range of factors will be considered:
● What each party understood to be the end of the relationship
● When each party told people that the relationship had ended
● When parties separated their finances
● When the parties stopped having a sexual relationship
● When the parties physically separated into separate bedrooms or houses
No single factor will determine separation.
The law recognises that couples can be separated even if they are still living in the same house. It is not uncommon for couples to continue to live in the same house for a period of time after they have separated.
You should take your personal possessions with you when you move out. Whether it is appropriate to take other items will depend on your personal situation. It is best to try to reach agreement with your partner, but this may not be possible.
Seeing a lawyer before you separate can give you more options. It can make things less complicated if you have obtained advice about your rights and entitlements.
The most common approaches include discussions with your partner, mediation, lawyer assisted negotiations, Collaborative Law, arbitration and litigation in the Family Court. A combination of these approaches may provide an equitable solution.