Category: Family Law

Following the breakdown of a family unit, parents can make arrangements for their children, independent from the Courts and without the need to commence Court proceedings (if appropriate). Parents can choose to make an informal verbal arrangement as to where the child lives and how much time the child spends with the other parent as well making decisions about the child’s long-term needs and major matters such as decisions about education, health, and religion. In other instances, parents may wish to have such arrangements in writing, as a future reference point for the parents and to avoid any potential disagreement. This type of document is referred to as a “Parenting Plan”. A Parenting Plan is likened to a private contractual arrangement between the parents, providing flexibility to be changed and amended as the needs of the child or circumstances change. Alternatively, parents are also able to file Consent Orders in respect of parenting arrangements.

Parents are able to finalise parenting arrangements by engaging in negotiations, exchanging correspondence with proposals between themselves or via their solicitors, or by attending a Family Dispute Resolution Conference (Mediation) with a view of formulating a Parenting Plan. Mediation is a more structured approach and takes place with a qualified Family Dispute Resolution Practitioner. Mediation may be conducted face-to-face, by telephone or shuttle. These alternative dispute resolution process (if appropriate), provide parents with the opportunity to resolve any remaining issues in dispute and to formulate parenting arrangements without commencing Court proceedings. Should the parents reach an agreement, then a Parenting Plan can be prepared and entered into by the parents.

A Parenting Plan should be broad in scope and cover a arrange of matters concerning all aspects of the child’s life. It should include arrangements for both parents to have “equal and shared parental responsibility” as to making decisions in relation to the child’s long-term care, welfare and development in respect to the child’s long-term needs and major matters.

A Parenting Plan should also reflect parenting arrangements that are in the “best interests of the child”, which includes the child spending “equal time” or “substantial and significant time” with both parents. This means, that the child will generally live with one parent and spend frequent time with the other parent on a scheduled basis for sufficient periods of time on each occasion to ensure the child develops a relationship with the other parent. Additional time is scheduled for days of significance and school holidays. Arrangements will differ depending on the child’s age, with future arrangements to trigger when the child reaches certain developmental or age milestones. Parenting Plans should also include arrangements for a child to communicate with the other parent, when they are not living with them.

Cautiously, a Parenting Plan are not enforceable by the Court, and therefore in the event that a parent does not follow the terms of a Parenting Plan, the Court would not be able to enforce the other parent to comply. However, should a parent commence Court proceedings seeking Parenting Orders, the Court may take into account the existing parenting arrangements provided for by a Parenting Plan in making fresh Parenting Orders.

If you would like advice about your family circumstances and your options, please contact our firm for an appointment.

Disclaimer: This publication provides general information of an introductory nature and is not intended and should not be relied upon as a substitute for legal or other professional advice. While every care has been taken in the production of this publication, no legal responsibility or liability is accepted, warranted, or implied by the authors or our firm, and any liability is hereby expressly disclaimed.

What is a de facto relationship?

A de facto relationship is when you and your partner are in a relationship and live together as a couple but are not married. Having regard to all the circumstances of the relationship, the couple must be living together on a genuine domestic basis.

The partners of the couple can be of opposite sex or same-sex. The partners must not be related by family. A de facto relationship can also exist even if one person of the couple is already legally married to a third party or in a de facto relationship with another party.

What determines the status of a de facto relationship?

The following circumstances may be considered to determine whether the persons have a relationship as a couple:

• the duration of the relationship;
• the nature and extent of their common residence;
• whether a sexual relationship exists;
• the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
• the ownership, use and acquisition of their property;
• the degree of mutual commitment to a shared life;
• whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
• the care and support of children;
• the reputation and public aspects of the relationship.

It is noted that no particular finding in relation to any of the above-mentioned circumstances is to be regarded as necessary in deciding whether the couple in is a de factor relationship. For example, it is not necessary for the couple to have children in their care and support in order for their relationship status to be defined as a de facto relationship.

Registering a de facto relationship

Couples living in the State of New South Wales can register the status of their de facto relationship via Service NSW.

The eligibility criteria for registration includes:

1. One partner of the couple lives in NSW.
2. Both partners are over 18 years of age.
3. The partners are not in a registered relationship in another Australian state or territory.
4. The partners are not married to each other or another person.
5. The partners are not in a relationship as a couple with another person.
6. The partners are not related by family. 

Seeking a financial settlement post break down of a de facto relationship

Following the breakdown of a de facto relationship, it may be appropriate that one partner the former couple seeks a financial settlement such as an alteration of property interests, splitting of superannuation interest, and/or spousal maintenance. If the former couple is able to determine such matters privately, then a property settlement can be achieved by entering into a financial agreement or consent orders. It is noted that consent orders must be filed with the Federal Circuit and Family Court of Australia within 2 years of the former couple’s date of separation.

In the event that the former couple is unable to come to an agreement, then one partner may seek the Court’s intervention and commence proceedings. However, before the Court can determine the dispute, the applicant must satisfy the Court that the former couple was in a genuine de facto relationship, which has now broken down, together with at least one of the following criteria points:

1. the couple separated after March 2009;
2. the de facto relationship was at least 2 years long; and/or
3. there is a child of the de facto relationship; and/or
4. the relationship is or was registered under a prescribed law of a state or territory; and/or
5. one the partners made significant (financial and/or non-financial) contributions to the property of the other, and the failure to now make a Court order would result in a serious injustice.

Additionally, the applicant must have a geographical connection to the Court where the proceedings are to be commenced.

Again, an application by a partner of a former de facto relationship must be filed within 2 years of the former couple’s date of separation.

If you would like advice about your family circumstances and your options, please contact our firm for an appointment.

Disclaimer: This publication provides general information of an introductory nature and is not intended and should not be relied upon as a substitute for legal or other professional advice. While every care has been taken in the production of this publication, no legal responsibility or liability is accepted, warranted, or implied by the authors or our firm, and any liability is hereby expressly disclaimed.

Often, following the breakdown of a family unit, parents are able to mediate and make living with and spend time with arrangements for their child, in other circumstances, parents require a domestic Family Law Court to make Court Orders in relation to such parenting arrangements. But as more and more family units consist of family members from a diverse family, cultural or international background, parents may be faced with the challenge of deciding where the new family unit post-breakdown will reside, whether this be domestically or internationally, especially when one parent wishes to relocate to another country or return overseas to reunite with their extended family. In some instances, parents are able to agree that their child will continue to live in Australia, or be permitted to travel for overseas visits, or relocate to another country that is reflective of a parent’s international background. However, there are other instances where parents cannot agree, and one parent then takes matters into their own hands and makes an executive decision to remove their child from Australia indefinitely, and importantly, without the other parent’s knowledge nor consent. In other instances, a parent, who may reside in a different country has retained a child following the end of an overseas visit. Such matters are referred to “international child abduction”. This is because the Hague Convention on the Civil Aspects of International Child Abduction (Convention of 25 October 1980) (herein referred to as the “Hauge Convention”) recognises that it is wrongful to remove a child from a country or fail to return a child to their usual country of residence in circumstances where the “taking parent” does not have the right to do so. Such circumstances, the “left behind parent” should quickly take action and seek the return of their child to their usual country of residence. Whilst the Hauge Convention provides the international legal framework, it is noted that not all countries are signatories nor enforce such matters.

Under Australian law, the Hauge Convention is enforced and recognised, and therefore parents are able to seek assistance with the following scenarios:

1. Seek parenting arrangements for a child who is living in Australia, or

2. Seek the return of a child who has been removed from a listed convention country (State) to Australia, or has been unlawfully retained in Australia.

Under the current Australian family law framework, being the Family Law (Child Abduction Convention) Regulations 1986 (Cth), a party can file an application to seek a declaration that the retention of child in a convention Country is wrongful under the Hague Convention, or seek that the removal of child from Australia to a convention Country is wrongful under the Hague Convention.

The Hague Convention is enforced between Australia and the following countries:

1. Albania	31. Guatemala	61. Saint Kitts and Nevis
2. Argentina	32. Honduras	62. San Marino
3. Armenia	33. Hong Kong (China)	63. Serbia
4. Austria	34. Hungary	64. Singapore
5. Bahamas	35. Iceland	65. Slovakia
6. Belarus	36. Ireland	66. Slovenia
7. Belgium	37. Israel	67. South Africa
8. Belize	38. Italy	68. Spain
9. Bosnia and Herzegovina	39. Japan	69. Sri Lanka
10. Brazil	40. Latvia	70. Sweden
11. Bulgaria	41. Lithuania	71. Switzerland
12. Burkina Faso	42. Luxembourg	72. Thailand
13. Canada	43. Macau (China)	73. The Former Yugoslav Republic of Macedonia (FYROM)
14. Chile	44. Malta
15. Colombia	45. Mauritius	74. Trinidad and Tobago
16. Costa Rica	46. Mexico	75. Turkey
17. Croatia	47. Moldova, Republic of	76. Turkmenistan
18. Cyprus	48. Monaco	77. Ukraine
19. Czech Republic	49. Montenegro	78. United Kingdom
20. Denmark	50. Netherlands	79. United States of America
21. Dominican Republic	51. New Zealand	80. Uruguay
22. Ecuador	52. Nicaragua	81. Uzbekistan
23. El Salvador	53. Norway	82. Venezuela
24. Estonia	54. Panama	83. Zimbabwe
25. Fiji	55. Paraguay
26. Finland	56. Peru
27. France	57. Poland
28. Georgia	58. Portugal
29. Germany	59. Republic of Korea
30. Greece	60. Romania

 

The following countries have acceded to the Hague Convention on the following dates, but it is not yet in force between Australia and these countries:

1. Andorra	(acceded in April 2011)
2. Gabon	(acceded in December 2010)
3. Guinea	(acceded in November 2011)
4. Iraq	(acceded in March 2014)
5. Kazakhstan	(acceded in June 2013)
6. Lesotho	(acceded in June 2012)
7. Morocco	(acceded in March 2010)
9. Russia	(acceded in July 2011)
10. Seychelles	(acceded in May 2008)
11. Zambia	(acceded in August 2014)

 

The following elements are integral elements of cases concerning the international abduction of children:

1. Children covered by the Hague Convention

The Hauge Convention ceases to apply when the child attains age 16 (Authority: Article 4 of the Hague Convention). 

2. Habitual Residence

The child’s usual State (Country) of residence prior to the wrongful removal or detention of the child overseas.

The removal or retention of a child is considered to be wrongful where:

– It is in breach of rights of custody attributed to a person by the State in which the child was habitually resident immediately before the removal or retention; and

– At the time of removal or retention, those rights were actually exercised, either jointly or alone, or would have been exercised, but for the removal or retention (Authority: Article 3 of the Hague Convention).

The Hauge Convention applies to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights (Authority: Article 4 of the Hague Convention).

3. Jurisdictional issues under the Hague Convention

 Applications need to be lodged within a reasonable time (Authority: Article 16 of the Hague Convention).

4. Return and Time Limits

 If a period of less than 1 year has lapsed from the date of the wrongful removal or retention, the court shall order the return of the child (Authority: Article 12(1) of the Hague Convention).

5. Rights of Custody

Rights of custody may arise by operation of law, by judicial or administrative decision, or by agreement having legal effect under the law (Authority: Article 3(a)(b) of the Hague Convention).

“Rights of custody” includes rights relating to the care of the child and the right to determine the child’s place of residence.

“Rights of access” includes the right to take the child for a limited period of time to a place other than the child’s habitual residence (Authority: Article 5(a)(b) of the Hague Convention).

6. Exceptions to Return: Consent and Acquiescence

The person having care of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention (Authority: Article 13(1)(a) of the Hague Convention).

7. Exceptions to Return – Grave Risk of Harm

Question to be considered – if the child was returned to State X, is there a grave risk the child would be exposed to physical or physiological harm, or otherwise placed in an intolerable situation? (Authority: Article 13(1)(b) of the Hague Convention).

8. Exceptions to Return – Child’s Objection to Return

The Court may refuse to order the return of the child, if it finds the child objects to being returned, and has attained the age and degree of maturity at which it is appropriate to take account their views (Authority: Article 13(2) of the Hague Convention).

9. Exceptions to Return – Settlement of the Child

Even where the proceedings have been commenced after the expiration of the 1 year period, the Court shall also order the return of the child, unless it can be shown the child has settled in its new environment.

Lastly, where the Court has reason to believe the child has been taken to another State, it may then stay the proceedings or dismiss the application for the return of the child (Authority: Article 12(2)(3) of the Hague Convention).

Disclaimer: This publication provides general information of an introductory nature and is not intended and should not be relied upon as a substitute for legal or other professional advice. While every care has been taken in the production of this publication, no legal responsibility or liability is accepted, warranted, or implied by the authors or our firm, and any liability is herby expressly disclaimed. 

Georgia holds a Bachelor of Laws and Bachelor of Business Administration from Macquarie University and a Graduate Diploma of Legal Practice from The College of Law. Georgia was admitted as a Solicitor of the Supreme Court of New South Wales and her name was entered on the High Court Register of Practitioners.

Prior to joining Legal Point Lawyers, Georgia predominately practiced as a Solicitor within Family Law, acting for clients seeking parenting arrangements as well as urgent relief such as Airport Watch List Orders and Recovery Orders.Georgia also held carriage of matters falling within the Care and Protection jurisdiction of the Children’s Court, acting in Application of Care Orders and Application to Vary or Rescind Care Order matters.

During her time at Legal Point Lawyers, Georgia has acted in transactional and litigation matters within Family, Equity and Commercial Law jurisdictions. Georgia has further appeared on behalf of clients in Status of Foreign Judgement matters, successfully obtaining Orders to recognise and enforce foreign Judgements within the local jurisdiction.

Email: georgia.vlachos@legalpointlawyers.com.au

In the event that after the parties have entered into and signed a Financial Agreement, and one party is experiencing in difficulty in enforcing the provisions of the contract, that party may be able to enforce the Financial Agreement through the Court’s intervention.

The party must seek a Court Order pursuant to section 90KA of the Family Law Act. The Financial Agreement, like any other contract, must be valid, enforceable or effective. The question of whether a Financial Agreement is valid, enforceable or effective is to be determined by the Court according to the principles of law and equity that are applicable in determining validity, enforceability and effect of contracts and purported contracts, and in proceedings relating to such a Financial Agreement. It is noted that such an application to enforce a Financial Agreement may be met with a responding application from the other party to have the Financial Agreement set aside.

If a Financial Agreement is found to be enforceable, it can then be enforced as if it were an Order of the Court itself.

In the matter of Clemenceau and Clemenceau [2010] FamCA 512 at [2], the Family Court of Australia held that “section 90KA of the Family Law Act provides that whenever a Financial Agreement or termination agreement is in question, its validity, enforceability or effectiveness is to be determined by the Court according to the principles of law and equity that are applicable in determining the validity, enforceability or effectiveness of contracts or purported contracts. Section 90KA also provides that a Court can enforce parts of the agreement as if they were orders of the Court”.

Interestingly, in the matter of Kostres and Korstres [2009] FamCAFC 222, the Family Court of Australia held that a Financial Agreement remains enforceable even if one of the parties made a bad bargain. The Court held that “if the agreement is not susceptible to being set aside, the question arises as to whether the court should resist its enforcement because it would operate unconscionably against one party. If the agreement is valid and binding, it should operate according to its terms. Simply because one of the parties made a bad bargain does not mean that it would be unconscionable for the other party to enforce the agreement. The doctrine of unconscionability looks to the conscience of the party whose rights are sought to be affected”.

Disclaimer: This publication provides general information of an introductory nature and is not intended and should not be relied upon as a substitute for legal or other professional advice. While every care has been taken in the production of this publication, no legal responsibility or liability is accepted, warranted, or implied by the authors or our firm, and any liability is herby expressly disclaimed.

Ge Wu is the solicitor director of Legal Point Lawyers & Attorneys.  He has been admitted to practise law since 2005.  Throughout his practice, Ge Wu predominantly practises in the areas of Property Law, Immigration Law, Commercial Law, Civil Litigation and Family Law.

His experience covers all aspects of property law, commercial/retail lease, immigration law and civil litigation, while at the same time, he also has experience in family law, criminal law and other areas such as will-drafting and general advice.

He has frequently been instructed by corporate clients in pre-acquisition due diligence reports, structuring property development, land/shopping centre acquisitions, G.S.T. and stamp duty advice for buying/selling businesses, as well as share transfers and company re-structures.

Ge Wu has been appointed as Notary Public since 2011 and started to provide Notary Public service to clients from different cultural backgrounds.

Email: ge.wu@legalpointlawyers.com.au

Despite Financial Agreements sometimes being referred to as “Binding Financial Agreements” or “BFAs”, Financial Agreements are not always “binding” and can be set aside by a Court or mutually terminated by the parties.

Financial Agreement can be set aside by the Court if any of the following events occurred between, or by either party of the Financial Agreement:

1. Fraud (such as non-disclosure of a material matter); or
2. An intention to defect or reckless disregard of the interests of a creditor; or
3. For the purpose of defrauding another person who is a party to a de facto relationship (the other de facto relationship) with a spouse party, or with reckless discard for the interests of that other person (in the case of de facto relationships); or
4. For the purpose of defrauding another person who is a party to a marriage with a spouse party, or with reckless disregard of those interests of that other party (in the case of de facto relationships); or
5. Any duress, undue influence or unconscionable conduct (taking advantage of any weakness of a party); or
6. If the Financial Agreement is void, voidable or unenforceable; or
7. Circumstances have arisen making it impracticable for the Financial Agreement to be carried out; or
8. Since the making of the Financial Agreement, a material change in circumstances has occurred, being circumstances relating to the care, welfare and development of a child of the marriage, and as a result of the change, the child or, if the applicant has caring responsibility for the child, a party to the Financial Agreement will suffer hardship if the Court does not set the Financial Agreement aside; or
9. A payment flag is operating under Part VIIIB of the Family Law Act on a superannuation interest covered by the Financial Agreement and there is no reasonable likelihood that the operation of the flag will be terminated by a flag lifting agreement under that Part; or
10. The Financial Agreement covers at least one superannuation interest that is an unsplittable interest for the purposes of Part VIIIB of the Family Law Act.

Further, if the Financial Agreement includes a third party, an intention to defraud, or defect the property interests of that third party or the reckless disregard of those interest are grounds for the Agreement being set aside.

Also, a Financial Agreement operating as a release of Spousal Maintenance will be of no effect if a party is in receipt of an income tested pension, allowance or benefit.

In the recent Family Court case, Daily & Daily [2020] FamCA 486, the Court of Appeal considered an appeal to set aside a Financial Agreement pursuant to s 90K(1)(b),(d) and (e), namely, that a Financial Agreement entered into by parties can be set aside on the basis of:

1. the agreement being void, voidable or unenforceable;
2. that there has been a material change in circumstances relating to the care, welfare and development of the child since the making of the agreement, and this will cause a hardship to the person who has responsibility for the child; and/or
3. party to the agreement engaged in conduct that was, in all the circumstances unconscionable.

In the cases of Fewster & Drake (2016) FLC 93-745 and Frederick & Frederick (2019) FLC 93-900 provide the well settled test for hardship, which requires the Court to make a comparison of the position of the child, or the party with caring responsibility if the Financial Agreement is to remain in place, compared to their position, if the Financial Agreement is to be set aside.

In the case of Eaves & Eaves (No.2) [2020] FamCA 863, citing the case of Thorne v Kennedy (2017) 263 CLR 85, the Court discussed the concept of “unconscionability” as a factor of setting aside a Financial Agreement. For circumstances to be held to be “unconscionable conduct”, the innocent party must be subject to a special disadvantage “which seriously affects the ability of the innocent party to make a judgment as its own best interests”. The other party must also unconscientiously take advantage of the innocent party’s special disadvantage. Further, this other party must also knew or ought to have known of the existence and effect of the innocent party’s special disadvantage.

Disclaimer: This publication provides general information of an introductory nature and is not intended and should not be relied upon as a substitute for legal or other professional advice. While every care has been taken in the production of this publication, no legal responsibility or liability is accepted, warranted, or implied by the authors or our firm, and any liability is herby expressly disclaimed.

Ge Wu is the solicitor director of Legal Point Lawyers & Attorneys.  He has been admitted to practise law since 2005.  Throughout his practice, Ge Wu predominantly practises in the areas of Property Law, Immigration Law, Commercial Law, Civil Litigation and Family Law.

His experience covers all aspects of property law, commercial/retail lease, immigration law and civil litigation, while at the same time, he also has experience in family law, criminal law and other areas such as will-drafting and general advice.

He has frequently been instructed by corporate clients in pre-acquisition due diligence reports, structuring property development, land/shopping centre acquisitions, G.S.T. and stamp duty advice for buying/selling businesses, as well as share transfers and company re-structures.

Ge Wu has been appointed as Notary Public since 2011 and started to provide Notary Public service to clients from different cultural backgrounds.

Email: ge.wu@legalpointlawyers.com.au

What is a Financial Agreement?

Couples are able enter into a private legal contract about their financial affairs and make provision for the distribution of their assets and liabilities, such as rights to real property and/or personal property, and mortgages, regardless of whether such items are held solely or jointly by a party as well as make provision for spousal maintenance. Financial Agreements are an alternative to process to Court or Arbitration that parties can engage to settle their dispute about property settlement matters.

Financial Agreements are a useful mechanism that a party of a relationship can utilise to make arrangements in circumstances where there are children from previous relationships, where one party may have unbalanced wealth, or may be entitled to an inheritance in the future, or where a party aims to preserve a family business.

Types of Financial Agreements

The type of Financial Agreement that parties are able to enter into pursuant to the Family Law Act 1975 (Cth) is depended upon whether the parties are firstly, either in a de facto or married relationship, and secondly, the stage of their relationship, or post-relationship.

Financial Agreements for De Facto Couples:

1. Before the commencement of a de facto relationship – section 90UB of the Family Law Act.
2. During a de facto relationship – section 90UC.
3. After a break down of a de facto relationship – section 90UD.

Financial Agreements for Married Couples:

1. Made before marriage, commonly known as a “pre-nuptial” – section 90B.
2. Made at any time during a marriage, but before a grant of divorce – section 90C.
3. Made after a grant of divorce – section 90D.

Whilst the legal framework of a specific Financial Agreement may differ due to the nature and stage of a relationship, and the provisions that such a Financial Agreement must entail, all Financial Agreement must meet the formal requirements in order to be binding upon the parties and be capable of ousting the jurisdiction of the Courts.

Requirements of all Financial Agreements to be binding:

1. The Financial Agreement must be in writing and signed by all parties;
2. The Financial Agreement must expressly state under which specific provision of the Family Law Act it is being made;
3. Neither person of the couple is a party to any other Financial Agreement;
4. Before entering into a Financial Agreement, each party must obtain independent legal advice from a solicitor about: (a) The effects of the proposed Financial Agreement on their rights, and (b) The advantages and disadvantages of entering the Financial Agreement to the party at the time of entering the proposed Financial Agreement;
5. A signed declaration from the solicitor representing the respective party, stating that respective party has received the mandatory advice from their solicitor (this is usually annexed to the end of the Financial Agreement); and
6. A signed copy of the solicitor’s declaration provided to the party has been given to the solicitor representing the other party; and
7. The Financial Agreement is effect, meaning that it has not been subsequently terminated or set a side by a Court.

Disclaimer: This publication provides general information of an introductory nature and is not intended and should not be relied upon as a substitute for legal or other professional advice. While every care has been taken in the production of this publication, no legal responsibility or liability is accepted, warranted, or implied by the authors or our firm, and any liability is herby expressly disclaimed.

Ge Wu is the solicitor director of Legal Point Lawyers & Attorneys.  He has been admitted to practise law since 2005.  Throughout his practice, Ge Wu predominantly practises in the areas of Property Law, Immigration Law, Commercial Law, Civil Litigation and Family Law.

His experience covers all aspects of property law, commercial/retail lease, immigration law and civil litigation, while at the same time, he also has experience in family law, criminal law and other areas such as will-drafting and general advice.

He has frequently been instructed by corporate clients in pre-acquisition due diligence reports, structuring property development, land/shopping centre acquisitions, G.S.T. and stamp duty advice for buying/selling businesses, as well as share transfers and company re-structures.

Ge Wu has been appointed as Notary Public since 2011 and started to provide Notary Public service to clients from different cultural backgrounds.

Email: ge.wu@legalpointlawyers.com.au

 

You probably heard the news about Bill Gates and his wife filing for divorce recently, but did you know that almost 50,000 divorces were granted in Australia in 2019? This figure is quite substantial given than just over 100,000 marriages were registered in the same period.

Divorce is the legal end of the marriage between two spouses. Deciding to divorce is arguably one of the most difficult decisions that a person has to make, but the application process does not have to be. This article will go through the two essential preliminary issues you need to consider and the application process.

Issues before applying for divorce

Before applying for divorce, you should consider who gets what, that is to determine how the matrimonial pool of assets is divided. Another issue that must be resolved prior to a divorce application is the children’s future. The Court may not grant a divorce if the parties have failed to make appropriate arrangements for the children such as child support, accommodation and supervision. These two issues can be complex, and you should contact a family law lawyer for legal advice.

The application process

Under the Family Law Act 1975 (Cth), the Federal Circuit Court has the power to deal with all divorce applications. Divorce applications must be filed online unless the parties are in a same sex relationship. An application fee of $930.00 (FY20/21) also needs to be paid. However, if payment of the full fee would cause you financial hardship then you may be qualified for a reduced application fee of $310.00 (FY20/21). You can either apply for divorce by yourself or together with your former partner. Each option has different formalities.

The one and only ground for divorce is ‘irretrievable breakdown of the marriage’. To prove to the Court that your marriage has irretrievably broken down:

1. You and your partner must have lived separately and apart for at least 12 months; and
2. There is no reasonable chance of getting back together.

If you can prove the above in Court, then a divorce order will be made and be effected one month and one day later. The Court will not acknowledge allegations of fault such as cruelty, adultery and desertion as a ground for divorce.

Furthermore, at the time of application, either spouse must be an Australian citizen, or domiciled in Australia or an ordinarily resident in Australia.

How long does it take to get a divorce in Australia?

At least 16 months from the date of separation, which starts on the day after one spouse considered the marriage to be broken down and imparts this fact to the other. At filing your Application for Divorce, you will be able to select a listing date for the Divorce Hearing from a range of available dates. Hearings are normally listed in 2 to 3 months’ time from the date of filing. The length of time can increase due to the other party’s opposition to a divorce application or issues with serving court documents to the other side.

Conclusion

Overall, applying for divorce is a lengthy and complex process with many issues to consider including the distribution of family assets and the children’s future. Over the past decade, the Court has streamlined the procedure and converted it online for ease and efficiency. If you are thinking about divorce and want to discuss your options, feel free to contact our team of family law lawyers for a consultation.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

With an increase in working and studying from home, together with the restriction of social activities outside of the home and closure of many non-essential services due to social distancing measures, there have been concerns expressed that these restrictions will inadvertently lead to an increase in domestic or family violence within the family home, whether this is in the form of acts of physical abuse, sexual assault, or psychological harm against adults and/or serious neglect of children. There is a greater concern, that persons experiencing domestic or family violence may be further apprehensive in seeking assistance from community organisations.

The Federal Government has announced additional measures to help persons experiencing domestic or family violence during the COVID-19 pandemic by raising awareness through its Help is Here Campaign as well as providing extra funding to the Salvation Army and the Men’s Referral Service as a part of its Domestic Violence Support Package.

Help is Here Campaign

The Help is Here campaign aims to raise awareness to promote that violence and abuse against either women or men are never acceptable in our society, regardless of whether are people feeling an increase in stress or anxiety, or families are experiencing new financial difficulties during the COVID-19 pandemic. The campaign broadcasts this message to the community through a variety of media and print services, providing the contact information for the two key national services, which are in operation at all hours:

1. 1800RESPECT (tel: 1800 737 732) and www.1800respect.org.au

2. MensLine Australia (tel: 1300 789) and www.mensline.org.au

Through accessing either of the two national telephone services, persons are then directed to appropriate help by trained staff.

Salvation Army’s Keeping Women Safe in their Homes for its Safer in the Home program

This program aims to keep women and their children, who have experienced violence, in the family home, where it is safe and appropriate to do by implementing additional measures, such as installation of alarms, security screens and locks, conducting sweeps and de-bugging of cars and homes and phone security breach scanning.

The Federal Government’s grant of additional funding to this program will provide access to the service for up to 200 more women. Women accessing this service will be able to engage the Salvation Army to conduct home safety audits, risk assessment and safety planning, as well as home security upgrades.

Contact: Domestic Violence Line (tel: 1800 65 64 63)  https://www.salvationarmy.org.au/need-help/family-and-domestic-violence/find-help-for-domestic-violence/#sith

If you are experiencing domestic or family violence, please seek urgent help from any of the appropriate community organisations available to you.

For emergencies, please contact the police (Tele: 000).

Source: Minister for Families and Social Services, Media Releases 3 May 2020 and 7 May 2020.

Disclaimer

This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.