Divorce
Does the divorce end it all?
A divorce does not formalise any division of property or parenting arrangements. Once a divorce is official, the parties will have 12 months to formalise any property settlement matters.
Becoming divorced will only formalise the end of the marriage. It will allow parties to remarry.
It is important to ensure that you have changed your Will and Enduring Power of Attorney as well as any beneficiary entitlements for superannuation or life insurance, as the divorce can impact upon these documents.
When am I officially divorced?
The divorce will officially take effect 1 month and 1 day after the Application for Divorce is granted by the Court.
It is important to remember that if you are planning to re-marry, you should ensure your divorce is official first.
Do I have to attend Court for the divorce?
If parties have made a joint application they do not need to attend Court for the Divorce Hearing, even if they have children under 18 years of age. If the Application is satisfactory, the Court will make the Order in the absence of the parties.
Where only one party has made the application, that party will not need to attend the hearing. If there are children under 18 years of age however, the party making the Application will need to attend Court.
Can we apply for a divorce together?
If parties agree to apply for a divorce jointly, they can make an application together.
Otherwise, one party can make the Application for the Divorce. They will need to then serve the Application upon their former spouse. Evidence of this will need to be provided to the Court.
We were only married for 18 months, can we still get a divorce?
If a married couple has been married for less than 2 years, the parties should first participate in counselling to explore prospects of reconciliation.
When filing the Application for Divorce, evidence will need to be provided that the parties have attended counselling.
What if we lived in the same house after we separated?
For financial reasons, some people live in the same house, but in separate bedrooms until arrangements can be made for the parties to live in different residences.
This time living in the same residence can count towards the 12 months the parties must live separately. Evidence will need to be provided to the Court that even though the parties lived in the same home, they conducted their lives as separate and presented to family and friends as being separated.
Do we need to go to counseling before we can get a divorce?
You will only need to attend counseling if you have been married for less than two years at the time of filing of your Application for Divorce. If you have been married for less than two years and do not wish to attend counseling you will need to obtain permission from the Court to apply for a divorce by filing an Affidavit with the Application.
How do I get a divorce?
A divorce means to officially end a marriage between two parties. A married couple can apply for a divorce if the marriage has broken down with there being no prospects for the marriage to continue.
Once you and your partner have lived separately for more than 12 months, you can apply for a divorce.
To be eligible to apply for a divorce in Australia one of the following must apply:
- A party must regard Australia as their home and intend to live in Australia indefinitely;
- A party mist be an Australian citizen by descent or grant of Australian Citizenship;
- A party must live in Australia and have done so for the 12 months immediately prior to making an application for divorce.
I do not know where my spouse is, can I still get divorced?
Yes. This just means that we attempt to locate your spouse using various avenues available to us and based upon your knowledge of your spouse’s location. Usually this is successful. However if your spouse is still unable to be located, or if you have absolutely no idea where your spouse might be, there are various Orders which can be sought from the Court to locate your spouse. If your spouse is still unable to be located then there are other Orders that can be sought from the Court to enable your divorce to proceed.
I was married overseas, can I still get a divorce in the Australian courts?
Yes, provided that either you or your spouse consider that Australia is your home and intend to live indefinitely in Australia, or are an Australian citizen (by birth, descent or citizenship), or Australian resident, or ordinarily live in Australian and have lived in Australia for twelve months immediately before applying for a divorce. If your marriage certificate is not in English you will need to file an English translation of it together with an Affidavit of the translator.
My spouse lives permanently overseas, can I still get a divorce in the Australian courts?
Yes, provided you meet the jurisdictional requirements. Your Application for Divorce will just need to be served on your spouse overseas.
What if my spouse does not agree to the divorce?
An Application for Divorce can be filed by one party to a marriage so it does not matter that your spouse will not agree provided that you have been separated for one year. To grant a divorce the Court only needs to be satisfied that your marriage has broken down irretrievably, that it is not likely that you will resume the marriage and if there are children of the marriage who are under eighteen years, that there are appropriate arrangements in place for those children.
When can I get divorced?
An Application for Divorce can be filed after a period of separation of one year. The time which makes up one year does not always have to be a continuous period.
In some cases you can add two periods of separation together to make an overall separation period of one year. This can be done provided in the middle of those two separation periods the time you were reconciled and living together as husband and wife did not exceed three months. For example, if you separated and remained separated for four months, reconciled and lived together as husband and wife for three months but then separated again, and remained separated, you can use the first four month separation period to count towards the one year separation period that is required before you can file an Application for Divorce. However if the period you were reconciled in between separations exceeds three months you cannot count the first separation period as part of a one year separation.
Matrimonial Property Settlement
Am I entitled to a property settlement?
Whether or not you are entitled to a property settlement depends upon your particular circumstances. Generally speaking though, if you have been married for any period of time you will have an entitlement to a property settlement.
Do I have to get divorced before I can do a property settlement?
No. You can pursue a property settlement at any time following separation. It is important to bear in mind that if you are divorced a time limit applies which means you only have one year from the date your divorce takes effect to either finalise your property settlement or commence court proceedings.
How is a property settlement worked out?
A property settlement is determined in four steps. The first step is to identify and value the property pool. The property pool will include assets and liabilities owned jointly, owned by either of you solely or owned by either of you with some other person. The second step is to assess the financial and non-financial contributions made by the parties or on their behalf as well as the contributions to the welfare of the family. Thirdly consideration is given to any adjustment that needs to be made for future factors. Those future factors include, but are not limited to, your ages and health, the ages of children and who they spend their time with, employment capacity, duration of the marriage, child support paid etc. Finally consideration is given to whether the result of steps two and three provides a just and equitable outcome for the parties.
I owned everything when we were married, my spouse owned nothing, will those assets be included in the property settlement?
Yes, unless they were the subject of a prenuptial or cohabitation agreement. However the consideration given to those assets will vary depending upon the length of your relationship. For example, in a short relationship the weight attributed to this contribution will be greater than it would in a long relationship.
My divorce was granted years ago, am I still entitled to a property settlement?
You might still be able to pursue a property settlement even though the time limit for pursuing that settlement has expired. This will depend upon your particular circumstances. When the time limit has expired you need permission from the court to pursue a property settlement. Consult an experienced family law solicitor to see if you are still able to pursue a property settlement in your circumstances.
My spouse is selling the matrimonial home and my name is not on the title, what can I do?
There are several avenues available to you to protect your interest in this asset. Which avenue is pursued can depend upon which stage the sale process has reached and ultimately what you are seeking or are entitled to. One option is the registration of a caveat over the property. Another option includes a Court Order either preventing the sale or putting into place directions as to how the sale is to proceed and how the sale proceeds should be held pending resolution of your property settlement.
My spouse never worked / I stayed at home during the marriage
Although a party to a marriage may not have made a financial contribution to the marriage they may have made a non-financial contribution. Non-financial contributions are considered in determining entitlement to property settlement. Non-financial contributions include being a home-maker and carrying out the parental duties within a relationship. Such contributions can be assessed in a substantial way when determining property settlement entitlements.
We have agreed on our property settlement, why do we need to record it?
Even if you have reached an agreement with your spouse it is important to record that agreement in a manner that will be recognised in the future and is enforceable. Without a properly recorded property settlement it is possible that one party may seek to revisit the settlement and seek an alternate (usually greater) property division at a later time. It is far wiser to invest some time and incur a relatively small expense now than expose yourself to what could be a very expensive and time consuming process in the future. If you have reached an agreement it can be recorded in either a Financial Agreement or a Consent Order.
What about the inheritance I received?
In most cases the inheritance comprises part of the property pool. There are some circumstances though when the inheritance can be excluded from the property pool.The timing of the receipt of that inheritance will determine how it is considered within the property pool and what weight it has in the assessment of entitlements. For example if it was received very early in a long relationship the weight given to the receipt of that inheritance will not be as great as if it were received at the start of a short relationship. Also the application of the inheritance will determine the weight it has in the assessment of entitlements.
What happens with superannuation in a property settlement?
Superannuation is an asset of the marriage. If certain criteria are met it can be divided in a property settlement just as any other asset is able to be divided and shared between the parties. There are options available for a party to obtain information from a superannuation fund about the entitlement that their spouse has in that fund.
What will my property settlement entitlement be?
A property settlement entitlement is worked out having regard to many different matters. For this reason it is important that you consult with an experienced family law solicitor as soon as possible. Matters which affect what your entitlement is include, but are not limited to, the length of your relationship, financial and non-financial contributions, family welfare contributions, your age and health, and any children and their ages.
Why am I being asked to provide copies of all of my financial documents, do I have to provide them?
In any property settlement matter it is necessary for both parties to make full and frank disclosure. If a party does not comply with their duty of disclosure an Application may be made to the Court seeking that the disclosure be made. If an Application is made against you and it successful you might be ordered to pay the costs of the other party associated with that Application.
Will I have to go to Court?
No. Most cases settle without Court involvement. You will only have to go to Court if you and your spouse are unable to reach an agreement in relation to property settlement. There are various avenues available to pursue a property settlement without having to commence a court proceeding. Such avenues include negotiation, mediation and collaborative law.
Defacto Property Settlement
I owned everything when we started our defacto relationship, my ex partner owned nothing, will those assets be included in the property settlement?
Yes (unless they were the subject of a cohabitation agreement). However the consideration given to those assets will vary depending upon the length of your relationship. For example, in a short relationship the weight attributed to this contribution will be greater than it would in a long relationship.
Our relationship ended over two years ago, am I still entitled to a defacto property settlement?
Sometimes you might still be able to pursue a defacto property settlement even though the time limit for pursuing that settlement has expired. This will depend upon your particular circumstances. When the time limit has expired you need permission from the court to pursue a property settlement. Consult an experienced family law solicitor to see if you are still able to pursue a property settlement in your circumstances.
We have agreed on our defacto property settlement, why do we need to record it?
Even if you have reached an agreement with your defacto spouse it is important to record that agreement in a manner that will be recognised in the future and is enforceable. Without a properly recorded property settlement it is possible that one party may seek to revisit the settlement and seek an alternate (usually greater) property division at a later time. It is far wiser to invest some time and incur a relatively small expense now than expose yourself to what could be a very expensive and time consuming process in the future. If you have reached an agreement it can be recorded in either a Financial Agreement or a Consent Order.
What about the inheritance I received?
In most cases the inheritance comprises part of the defacto property pool. There are some circumstances though when the inheritance can be excluded from the property pool. The timing of the receipt of that inheritance will determine how it is considered within the property pool and what weight it has in the assessment of entitlements. For example if it was received very early in a long relationship the weight given to the receipt of that inheritance will not be as great as if it were received at the start of a short relationship.
What will my property settlement entitlement be?
A defacto property settlement entitlement is worked out having regard to many different matters. For this reason it is important that you consult with an experienced family law solicitor as soon as possible. Matters which affect what your entitlement is include, but are not limited to, the length of your relationship, financial and non-financial contributions and any children and their ages.
Will I have to go to Court?
No. Most cases settle without Court involvement. You will only have to go to Court if you and your defacto spouse are unable to reach an agreement in relation to property settlement. There are various avenues available to pursue a property settlement without having to commence a court proceeding. Such avenues include negotiation, mediation and collaborative law.
Children
Can a child decide they don’t want to see a parent?
Not always. In such circumstances it will be very relevant to ascertain why the child does not want to see their parent. Whether that is a valid reason in terms of the matters that a court needs to consider can then be assessed.
There are some situations where a child has expressed a wish not to see their parent and that has been the outcome. There are also situations where a child has decided that he/she no longer wants to see their parent but the outcome of the dispute is that the child is still required to see that parent.
Can I change my child’s surname?
Unless you have sole parental responsibility for your child you will not be able to change your child’s surname without the agreement of the other parent or a Court Order.
Can I get sole Parental Responsibility?
The Family Law Act provides that parental responsibility is equally the task of both parents. However there are circumstances where parental responsibility can be ordered to be the sole responsibility of one parent. Such circumstances might include for example where the level of domestic violence between the parents is such that they cannot communicate in sufficient manner so as to share parental responsibility.
Can I prevent my children from traveling overseas?
Whilst overseas travel after separation is quite a common event there are sometimes circumstances which mean it is best that a child does not participate in such travel. If for example there is a risk that the child will never be returned to the jurisdiction of Australia an Order might be made preventing their departure at all. An Order can be obtained for the children’s names to be placed on the Airport Watch List so as to prevent their leaving the country.
Can I prevent my ex from seeing the kids?
Unless the other parent is accepting of such an arrangement, it is usually very hard to obtain a Court Order preventing that parent from seeing the children. A long term ‘no contact’ Order is usually made with great reservation by a Court. Whether or not such an Order is made will depend upon specific circumstances and whether it is considered in the best interests of the children not to see that parent. Of course there are cases where it is simply not in the best interests of a child to see a particular parent and the Courts will make appropriate Orders denying contact if necessary.
Can I relocate with my children?
The distance involved in the relocation and the effect on parenting arrangements will determine the answer to this question, along with various other factors. For example, a move which adds only a short distance between the respective homes of parents would usually be okay. However a move which adds reasonable travel time between the respective homes of parents should not usually be undertaken without first obtaining the agreement of the other parent or the court’s permission. If you make such a move without either the agreement of the other parent, or a Court Order permitting the move, you might find that you end up being ordered by the court to return to the place where you relocated from.
Can I see my ex’s children if I am not their biological parent?
Yes. Because the Family Law Act looks at the rights of a child there will often be circumstances when it is in the child’s best interests to maintain a relationship with a non-biological parent.
Can I still travel overseas with the children?
In most circumstances it is still possible to travel overseas with your children after separation. In different situations there may be some restrictions in relation to such travel for example you might only be able to travel to specific destinations.
How do I change my existing Consent Order?
A Consent Order can be changed by a subsequent Parenting Plan. It can also be changed by a new Consent Order, or a later Order of the court. Obviously a Parenting Plan and a new Consent Order can only be achieved where the parties are in agreement.
How do I change my existing Parenting Plan?
A new Parenting Plan can be made at any time if a further agreement to do so can be reached between the parties. If a further agreement cannot be reached then depending upon how old the Parenting Plan is determines whether you need to participate in Family Dispute Resolution or whether you can commence a court proceeding.
I am a grandparent, can I see my grandchildren?
Yes, in some cases. Because the Family Law Act looks at the rights of a child as opposed to the rights of any adults that have been a part of a child’s life, it is often in the best interests of the child to maintain a relationship with you as the grandparent. The Family Law Act makes specific provision for the rights of a child to spend time with and communicate with their grandparents regularly if it is in the child’s best interests to do so.
I do not receive child support from my ex, do I still have to send the kids for contact?
Whether or not a child sees their parent does not depend upon whether that parent is paying child support or not. You should continue to abide by the terms of a Parenting Plan or a Court Order providing for the time between your child and your ex.
If you did not continue to allow your child to spend time with your ex you would be in breach of the parenting arrangements and likely to find yourself having to respond to a Contravention Application in the court. There are options available to you for the collection of unpaid child support and those should be explored by you separately.
I have a Court Order in relation to parenting arrangements for my children but I still do not get to see them?
Sometimes the circumstances will call for a Contravention Application which means commencing a court proceeding to enforce the terms of the Court Order. In some cases it is possible to get the parenting arrangements back on track without a Contravention Application. In other cases the circumstances are better suited to revisiting the terms of the Court Order through Family Dispute Resolution. Call one of our family law solicitors to discuss your particular situation and work out which is the best way forward for you.
I only want my ex to see the kids on a supervised basis
If there is a risk to the children if they were to spend unsupervised time with their parent/s then it is possible to obtain a Court Order which only permits visits to occur on a supervised basis. The risks to the children can be emotional or physical.
My children have not been returned to me after they visited my ex?
If you have a Court Order it is likely that you will be able to file an Application in the court seeking a Recovery Order.
If you have a Parenting Plan then an Application to the court can be made seeking for an Order to be made in your favour.
Exactly what action is taken depends on your particular situation. For example if there is a risk to the safety of the children urgent action is required. In some cases it might be possible to negotiate the return of the children without the need to commence any court proceeding.
What are my rights to see my children?
The Family Law Act looks at this question not in terms of what a parent’s rights are but rather at what the rights of your children are. As a starting point the Family Law Act sets out that a child has a right to know and spend time with his/her parents unless there is a risk to the child in doing so.
What is a Consent Order?
A Consent Order is a Court Order which has been made when you have been able to agree on arrangements concerning your children (or property settlement). The arrangements agreed to are recorded in writing in a document approved by the Court. Once that document is completed by the parties it is sent to the Court for approval. A Consent Order is enforceable. Usually you do not need to attend Court to have a Consent Order made (unless the Consent Order is made as a result of a proceeding that has already been commenced with the Court).
What is a Parenting Plan?
A Parenting Plan is a written document which records arrangements that have been agreed to for matters concerning children. It is dated and signed by the parties. A Parenting Plan is not enforceable. However if a Parenting Plan is made after a Court Order the Parenting Plan will trump the Court Order.
What is Parental Responsibility?
In terms of family law parental responsibility with respect to a child encompasses all of the duties, powers, responsibilities and authority which parents have under the law. It covers a child’s name, religious beliefs and practices, which school a child attends, health matters etc.
What is Shared Parenting? Can I get Shared Parenting?
Essentially shared parenting refers to the time that is spent by a child with his/her respective parents. Where circumstances are right and it is in the best interests of a child a court can make an Order providing for the child to spend equal time with each of his/her parents. However when the circumstances are such that it is not in the best interests of the child to spend equal time with each of his/her parents then the court instead will consider whether the child should spend significant and substantial time with one parent.
When can my kids decide where they want to live?
There is no particular age when a child can decide where they want to live. The weight given to a child’s wish to live with one parent varies according to their age and the level of maturity behind their reasons for wanting to live with that parent. The older the child, the more likely the maturity of the child and therefore the greater the likelihood that their wishes will be given consideration.
Will I have to pay child support if we have a shared care arrangement?
It is still possible that you might be required to make a child support payment even if you have shared care of your children. This can be because of the differences in income between you and the other parent.
Will I need to go to Court?
You will not always need to go to court in relation to a dispute about the parenting arrangements for your children. Usually court is the last process used to try and resolve a dispute.
Before you can go to court you will normally undertake Family Dispute Resolution (FDR). However if the arrangements for your children are unable to be resolved using a process of FDR and a court proceeding is necessary then you will need to be present at the court for the Hearing.
Will my children have to go to Court?
No. It is very rare for a child to be directly involved in the court process. If children are of an age where their wishes need to be ascertained this is usually achieved through a Family Report. Another method of ascertaining what a child’s wishes are is through meetings with a Family Consultant.
Spousal Maintenance
Am I entitled to spousal maintenance?
Spousal maintenance is not automatic. Whether or not you are entitled to receive spousal maintenance will depend upon your circumstances and whether you are able to meet your reasonable expenses yourself from your own income or assets. Even if you are unable to meet your reasonable expenses yourself spousal maintenance will only be paid to you if your former spouse has the capacity to make those payments to you. The right to spousal maintenance stops if you remarry. Also if you commence a defacto relationship consideration will be given to the financial circumstances of that relationship, including your defacto partner’s financial circumstances, in determining your entitlement to spousal maintenance.
Are there any limits to defacto spouses who can apply for spousal maintenance?
Yes. If your defacto relationship ended before 1 March 2009 (or 1 July 2010 in South Australia) you will not be entitled to seek spousal maintenance under the provisions of the Family Law Act 1975 unless your ex-partner agrees for that legislation to apply.
How is the need for spousal maintenance determined?
Matters that are taken into consideration in deciding whether a spouse has a need for spousal maintenance include your age and health, your income, property and financial resources, your ability to work and how the marriage, or defacto relationship, has affected your ability to earn income, what is a suitable standard of living and whether any children are living with you.
I was in a defacto relationship, when can I apply for spousal maintenance?
Spousal maintenance can be applied for by a party to a defacto relationship that has ended up until two years after the end of that defacto relationship. The time limit in relation to spousal maintenance is created upon the end of the relationship, just like for defacto property settlement. In very limited circumstances you may be able to get permission from the court to apply for spousal maintenance after the time limit has expired.
I was married, when can I apply for spousal maintenance?
Spousal maintenance can be applied for by a party to a marriage at any time after separation up until twelve months after a divorce has been granted. A time limit in relation to spousal maintenance is created upon a divorce becoming effective, just like for property settlement. In very limited circumstances you may be able to get permission from the court to apply for spousal maintenance after the time limit has expired.
What is spousal maintenance?
Spousal maintenance is a payment made by one party to a marriage, or defacto relationship, to the other party from that relationship after separation. It is a payment made when one party cannot adequately support themselves following separation and the other party can afford to provide that support.
Domestic Violence
Can a Domestic Violence Order be revoked?
Yes. An Application can be made to a Magistrates Court of Queensland.
Can a Domestic Violence Order be varied?
Yes. An Application to Vary a Domestic Violence Order can be completed and filed in any Magistrates Court of Queensland. An Order can be varied by an Aggrieved (the person protected by the Order), or the Respondent (the person who the Order is against). Variations to an Order can include changes to the terms, adding more terms to the Order, changes to the persons listed on the Order and changes to the time that the Order is force for.
Can I still see my kids?
It is possible to have a condition added to a Protection Order which allows you to continue to see your children. You should see a solicitor about this.
How do I get a Domestic Violence Order?
In Queensland, an Application is made in the Magistrates Court.
I do not agree with an Order being made, what can I do?
You must attend Court on all dates that the Application is in Court. You need to indicate that you disagree with an Order being made. When you disagree with the Order being made the Application will proceed to a Hearing. Before that Hearing you and the person seeking the Order (the Aggrieved) will need to make a statement in the form of an Affidavit and file that in the Court. Any witnesses for you and the person seeking the Order also make an Affidavit which is filed in the Court. At the Hearing the person seeking the Order, any witnesses on their behalf, you and any witnesses on your behalf can all be questioned (cross examined) by the Magistrate or by any legal representative for the person seeking the Order or for you. Once all the evidence is heard by the Magistrate a decision is made as to whether to make the Protection Order which has been applied for. You should seek legal advice if you do not agree with an Order being made.
I have a Domestic Violence Order but it has been broken?
Once a Domestic Violence Order is in place if it is breached (broken) by the Respondent a complaint can be made to the Police. An investigation is undertaken by the Police and if they can prove that the Order was breached they will charge the Respondent. Breaching the Domestic Violence Order is a criminal offence. Just what the charges are will depend upon what the Police investigation shows, for example the Respondent might be charged with more than breaching the Domestic Violence Order.
I have a Domestic Violence Order in Queensland but I am moving, what can I do?
In most States and Territories there will be legislation that provides for your Queensland Domestic Violence Order to be registered in that State or Territory. You should make enquiries at any local Court in the new State or Territory.
I have a Domestic Violence Order that is going to expire, can I extend it?
Yes. An Application to Vary a Domestic Violence Order should be completed seeking to extend the time of the Order. The Application should be filed in any Magistrates Court of Queensland. The Application in this case needs to be filed before the Domestic Violence Order ends.
I have been served with an Application for a Protection Order, what can I do?
You can decide to do one of several things. If you do not mind a Protection Order being made against you then you can attend Court and consent to the Order being made. You might prefer to consent to the Order being made without admitting to the allegations that are contained in the Application (a consent without admission). In either case you should seek legal advice and inform yourself of the implications of having a Protection Order against you, as in some cases it can affect your employment, for example if you are a Police Officer or a Security Officer. In some cases it can impact upon your recreation activities, for example if you hold a weapons licence and if you own weapons.
I have moved to Queensland, can I register my Interstate Protection Order?
Yes. An Application for Registration in Queensland of an Interstate Domestic Violence Order should be completed and filed in a Magistrates Court of Queensland. You will need to file a certified copy of the Interstate Order with your Application.
What conditions can be included in a Domestic Violence Order?
An Order will require that a Respondent be of good behaviour towards the Aggrieved (and any other persons named in the Order such as children, relatives, friends, co-workers) and not commit domestic violence against the Aggrieved (or any other persons named in the Order). In some cases other conditions will be included in the Order such as conditions that:-
• stop a Respondent approaching the Aggrieved, approaching their home or approaching their workplace
• stop a Respondent living in the home shared by the Respondent and the Aggrieved
• stop the Respondent from attending at specific places
• stop the Respondent from having contact with the Aggrieved.
What does a Domestic Violence Order do?
A domestic violence order sets limits on the behaviour of a person who has committed an act of domestic violence against you. In some instances it requires that they be of good behaviour towards you and not commit an act of domestic violence against you. In other instances it can be much more specific for example prevent them from contacting you, or coming within a certain distance of you or your home.
What happens if I apply for a Domestic Violence Order?
Sometimes you can seek an urgent Temporary Protection Order, such as when you believe the normal process involved in obtaining a Protection Order will not protect you quickly enough. If your Application is heard on an urgent basis you can be in court before the Application has been served on the Respondent (the person you are seeking the Order against). The urgent Temporary Protection Order can be made and then served on the Respondent at the same time as your Application. A further court date will be allocated for the Application. If you do not require an urgent Temporary Protection Order, once your Application is filed it will be allocated a court date and then needs to be served on the Respondent. What happens as the Application progresses through the Court depends upon what the Respondent does. The Respondent can accept the Order being made, oppose the Order or seek for the matter to be adjourned to allow them to seek legal advice. If the Order is being opposed the matter will proceed to a Hearing.
What is domestic and family violence?
Domestic violence includes physical or sexual abuse, emotional or psychological abuse, financial abuse, threatening or coercive behaviour and any other behaviour which dominates a person or causes them to fear for their safety or wellbeing.
Will I get a criminal record?
If a Domestic Violence Order is made against you that does not mean you will have a criminal record. There will be a record of the court proceeding and of the Domestic Violence Order, but this is not a criminal record. If you breach the terms of the Domestic Violence Order and are charged with a breach of that Order you can be charged with a criminal offence and may end up with a criminal record.
Child Support
How can I make sure I receive the Child Support that is assessed to be paid?
In the first instance you should contact the Child Support Agency and take advantage of the appropriate actions they have in place for the collection of child support, including arrears of child support. It is important that you contact the Child Support Agency promptly as there may be time limits in relation to which arrears they are able to collect for you.
I do not agree with the Child Support Assessment, what can I do?
You should contact the Child Support Agency and complete the appropriate documentation relevant to the circumstances of your disagreement to the Child Support Assessment.
I do not receive Child Support, do I have to send the kids to see their mum/dad?
Because child support and the time a child spends with a parent are not the same issue you cannot stop sending children to see their parent simply because you have not been receiving the child support you are supposed to receive. If you were to stop sending the children to a parent and a Contravention Application was filed in the court against you the court would form a very poor view of you in relation to this action.
If you are not receiving the child support you are entitled to receive you should contact the Child Support Agency and follow the appropriate channels to ensure you receive that child support and any arrears owing.
I have been paying Child Support for a child who I have found out is not my biological child, what can I do?
In the first instance you should approach the Child Support Agency with a view to having them stop the Child Support Assessment. Sometimes the Child Support Agency will not stop collecting Child Support from you. In that situation it is likely that you will need to commence a court proceeding seeking a stay of the Child Support Assessment and an Order for DNA testing to occur.
Whether or not you will be entitled to a refund of the Child Support which has been paid will depend on the circumstances of your particular matter.
I pay Child Support, why can’t I see my kids?
Child Support and the time a parent spends with their kids are two separate issues. Whilst the court can, when determining the arrangements to be made for children, consider whether or not child support is being paid it is not the most significant factor considered in deciding when and how much time a child will spend with each of the parents. What is in the best interests of the children is the most significant factor in deciding whether or not you will be able to see your children and how often and how long.
Same Sex Relationships
How is property settlement worked out?
Your property settlement is worked out in the same manner as a defacto property settlement. If your relationship ended on or after 1 March 2009 and you were living in Queensland, New South Wales, Victoria, Tasmania, the ACT, the Northern Territory, Norfolk Island, Christmas Island or the Cocos Islands the property settlement is worked out in accordance with provisions of the Family Law Act 1975.
A same-sex property settlement will also be worked out in accordance with the provisions of the Family Law Act 1975 if you were living in South Australia and your relationship ended on or after 1 July 2010
Is there a time limit?
If you have not resolved your property settlement, or commenced a court proceeding seeking a property settlement and it is more than two years since your separation you will not be entitled to pursue a property settlement unless you first obtain the permission of the court. Permission from the court to proceed with a property settlement after two years from your separation will not always be granted. You need to have very good reasons to obtain the court’s permission to proceed with a property settlement after the expiry of the time limit.
My relationship has ended am I entitled to a property settlement?
If you were in a same-sex relationship which ended on or after 1 March 2009, whether or not you are entitled to a property settlement depends upon your particular circumstances. If you were in a same-sex relationship for a period of two years, or if you were in a same-sex relationship and there is a child of your relationship, you may be entitled to a property settlement.
You might even have an entitlement to a property settlement if you were in a same-sex relationship for less than two years for example if you have made a substantial financial contribution or non-financial contribution in the relationship and a serious injustice would result if a property settlement was denied, or if your relationship was registered in a State or Territory which allows for such registration
We have agreed on our property settlement, why do we need to record it?
Even if you have reached an agreement with your same-sex spouse it is important to record that agreement in a manner that will be recognised in the future and is enforceable. Without a properly recorded property settlement it is possible that one party may seek to revisit the settlement and seek an alternate (usually greater) property division at a later time.
It is better to invest some time and incur a relatively small expense now than expose yourself to what could be a very expensive and time consuming process in the future. If you have reached an agreement it can be recorded in either a Financial Agreement or a Consent Order.
What will my property settlement entitlement be?
A same-sex property settlement entitlement is worked out in the same manner as a defacto property settlement and has regard to many different matters. For this reason it is important that you consult with an experienced family law solicitor as soon as possible. Matters which affect what your entitlement is include, but are not limited to, the length of your relationship, financial and non-financial contributions and any children and their ages.
Will I have to go to Court?
No. Most cases settle without Court involvement. You will only have to go to Court if you and your same-sex spouse are unable to reach an agreement in relation to property settlement. There are various avenues available to pursue a property settlement without having to commence a court proceeding. Such avenues include negotiation, mediation and collaborative law.