Family Law

Separation involves a great deal of emotional stress and a range of practical and legal considerations. Our experienced team can advise and guide you through the complexities of your family law matter. We will explain your rights and work with you to achieve the best possible results for you and your family.

Wherever possible, we encourage clients to resolve their family law matter without resorting to court proceedings. If it does come to court, however, we are skilled advocates and deeply familiar with the court system.

Getting divorced in Australia

Australia has a no-fault divorce system, and you can obtain a divorce on the grounds that your relationship has irretrievably broken down. This is shown by having been separated for 12 months, after which you can apply for a divorce through the Federal Circuit and Family Court of Australia. The court will recognise that in some cases a couple may be technically separated even if they continue to live under the same roof, for example, due to financial circumstances or to provide continued care for their children.

Applications are filed online and may be made either individually or jointly. You will need to provide your marriage certificate, identification, and proof of citizenship (if you were not born in Australia). Before granting a divorce, the court must be assured that satisfactory arrangements are in place for any children.

It is important to note that a formal application for property orders must be lodged within 12 months of your divorce becoming final.

De facto relationships

Family law legislation also applies to de facto couples whose relationship has ended. To access remedies under family law legislation, a couple who was not legally married may need to prove they were in a de facto relationship. We can help with this. Various factors will be considered to determine whether you were in a de facto relationship, including the length and nature of your relationship, financial dependence or interdependence, the care and support of children, or whether your relationship was registered under state law.

Formalising your property settlement

If you and your ex-partner have agreed on how to divide your property, a family lawyer can ensure that your arrangements are documented so they are legally enforceable. Your lawyer can also help you with negotiations.

Formalising a property settlement enables ex-partners to move on with their respective financial lives and helps protect them from future claims. An agreement consistent with the Australian family law system may also facilitate certain duty exemptions or concessions for transferring certain assets such as real estate.

After coming to an agreement, an application for consent orders may be filed with the court. You will not usually need to attend court to have the orders made and, if the proposed orders are considered just and equitable, the court will grant them which means they will be legally binding.

A binding financial agreement may also be used to finalise your arrangements however, consent orders are generally considered a more formal approach to settling your property affairs. A financial agreement is a written agreement between the parties that complies with certain formal requirements but is not endorsed by the court. Both parties must receive independent legal advice before entering into the agreement. We can advise if a financial agreement is suitable for your circumstances.

Unable to agree on a property settlement?

There is an established process in cases where ex-partners cannot agree on how their assets should be divided.

Firstly, the court needs to be satisfied that you have attempted to reach agreement, and to this end you will need to participate in dispute resolution.

If this doesn’t resolve the matter, then an application for property orders must 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 determining a fair and equitable property settlement, the following steps are generally adopted:

• A property pool is established by calculating the total assets owned by both parties, and their liabilities. Assets include property, shares, cars, jewellery, savings, furniture, etc.
• The court will weigh up the contributions from both parties, including financial, non-financial, inheritances and assets brought into the relationship.
• The court will look at the future needs of both parties, including factors such as their capacity to earn money and their parental responsibilities.
• Orders will be made based on what is just and equitable to both parties.

Parenting arrangements

Parenting arrangements address issues such as where children live, how much time they spend with each parent, decisions about education and healthcare, etc.

The law ensures that the best interests of the children are served first. When considering what is in the children’s best interests, the court has to consider facilitating a meaningful relationship between the children and both of their parents and also to protect the child from harm. Greater consideration is given to the need to protect children from harm.

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 such as those relating to health and education. Shared parental responsibility does not necessarily mean that the child will spend equal time with each parent.

Parenting arrangements can be documented in a parenting plan or court orders.

A parenting plan is a written agreement setting out the arrangements agreed between the parties.

Parenting orders are legally enforceable. They can be made between the parties by consent and filed with the court or, when parties cannot agree, the parenting arrangements will be decided by the court.

If you need help, contact one of our lawyers at [email protected] or call 02 6642 3411 for expert legal advice.