It can be tough when a romantic relationship comes to an end, especially if children are involved. It’s often an emotionally challenging time, sometimes made worse by the prospect of dealing with the legal system. It’s okay to get support to help lift some of the burden to make sure that your interests, and your children’s futures are properly looked after.
Whether it’s assistance to resolve disputes or to sort out arrangements for children, property and money, we are sensitive and practical in assisting you in negotiating the closing of one chapter of your life and the opening of another.
Issues may arise between you and your former spouse or partner in relation to the parenting arrangements for your children regarding where the children are to reside or time the children will spend with each parent.
We will endeavour to assist you in reaching agreement in relation to the parenting arrangements for your children which are in the best interests of each child. We will encourage disputes to be settled through Family Dispute Resolution as opposed to having to resort to Court proceedings unless it becomes obvious that it is necessary for you to take the matter to Court. In this event we will work with you to present persuasive arguments and evidence to the Court.
What are Parenting Plans and Consent Orders?
In the event that you reach agreement in relation to the future arrangements for the care and welfare of your children rather than going to Court you have the option to:-
- Enter into a Parenting Plan stating the parenting arrangements you have agreed on for your children which is signed by bother of you; or
- Apply for Consent Orders whereby the Court approves the agreed parenting arrangements if it is deemed by the Court that acceptable arrangements have been put in place for the children.
What Are Your Options if You Cannot Reach Agreement with Your Former Spouse/Partner?
In the event that you are unable to reach agreement you can:-
- Do nothing which is unlikely to be in the best interests of your children and will not resolve the disputes; or
- File an application in the Court whereby the dispute will firstly be referred to Family Dispute Resolution. If the dispute cannot be resolved through Family Dispute Resolution, then the Court will give directions for you to prepare the matter for a Court hearing.
The Best Interests of the Child
The Court decides what is in the ‘best interest’ of your children by referring to matters set out in Section 60CC of the Family Law Act 1975 (Cth). The primary consideration is the benefit of your child having a meaningful relationship with both parents and ensuring that your child is protected from physical or physiological harm.
Divorce & Property
If an irretrievable breakdown of your marriage has occurred and you and your former spouse have been living apart for at least twelve months, noting that you can be deemed to be living apart under the same roof, you can apply to the Court for a divorce to be granted.
The Court will grant a divorce provided that the Court is satisfied that there has been a total breakdown of your marriage and reconciliation is not possible.
Our experienced family lawyers can assist you in preparing and filing the necessary documents with the Court when applying for a divorce.
We can also assist in settling property matters which have been brought into your marriage or acquired during the course of your marriage or after separation. An application for a property settlement can be made immediately after separation and it is not necessary to wait until divorce.
Property comprises of all assets such as houses, land, shares, savings, furniture, motor vehicles, insurances policies and superannuation and the Court is permitted to make any Order which it considers appropriate, varying your interests and your spouse’s interests in any property owner by either or both of you.
The Court takes into account various factors when deciding on an Order such as:-
- The fairness and equity of the proposed division of assets
- Any financial contributions, whether they be direct or indirect, made directly by you or your spouse to the purchase, maintenance or improvement of an asset
- Any contribution made by you or your spouse to the welfare of your family
Binding Financial Agreement
If you are intending to enter into a defacto relationship or marriage or are in an existing defacto relationship or marriage and wish to agree about the way in which your property will be divided between yourself and your partner if you were to separate, entering into a Binding Financial Agreement is a way of formalising your agreement and protecting things such as valuable assets or inheritance should the relationship breakdown.
If your relationship does breakdown a Binding Financial Agreement can be used as a way of enabling you to opt out of the Court’s jurisdiction to deal with property and spousal maintenance issues.
Breakdown of a Defacto Relationship
A breakdown of a defacto relationship can be a very stressful and emotional time in your life. A defacto relationship is determined by certain factors including whether there has been a sexual relationship, merging of funds and a recognition of the domestic relationship by others.
Generally speaking if you have been living with your former partner in a domestic relationship for 2 years you are able to make a claim for a property settlement or a claim for spousal maintenance.
However, if you have lived with your former partner in a domestic relationship for less than 2 years you may also be able to apply for a property settlement if:-
- There is a child of your relationship; or
- You have made significant contributions towards the property of your former partner.
If these circumstances do not apply you may still be able to apply to seek a property settlement under the Property Law Act.
Any application to the Court must be made within 2 years of separation.
The Department of Communities (Child Safety Services) is an organisation that investigates reports of harm or suspected child abuse against a child who is under the age of 18. The Departments role is to investigate any complaints made in respect of a child and to provide services to the child or the carer of the child.
A number of different avenues can be taken by the Department if it is deemed that the child is in need of protection. If the Department has reason to believe that the child is in immediate danger the child can be taken into the Department’s custody.
When a child is removed from a primary parent and kinship care is required, extended family may be asked to become involved in the child protection matter. Timely legal advice is required in any child protection matter should issues arise with things such as the kinship care of a child and the expectations of the Department.