FAQ

It will depend on what you, informally, or the court decides. In some cases, the court may order that the matrimonial home be sold, with the proceeds divided equally.

Yes. Section 65C of the Family Law Act states that a parenting order can be applied for by:

1.Parents;
2.The child;
3.Grandparents; or
4.Any other person concerned with the care, welfare and development of the child.

These are listed in section 64B of the Family Law Act, including:

– The person with whom a child will live;
– The time a child is to spend with the other parent;
– The communication a child is to have with the other parent;

– The communication the parents are to have with each other; – Whether child support is payable; and
– Anything related to welfare, for example medical decisions.

You may appeal a decision made in the Family Court or Federal Circuit Court. To succeed, you must convince the Full Court that the judge who made the original orders, made an error.

Yes, because you must discuss matters related to the child. This includes, for example, where a child will attend high school, which GP, dentist or other health service they will attend, and the child’s religion.

Yes – as long as you have separated, and the marriage has broken down. This is shown with an affidavit, where you will explain things like the sleeping arrangements, reduction in favours done for each other, and division of finances.

1. Introduce yourself – full name, date of birth, address, occupation;
2. Explain why you are making the affidavit – usually to support an application you have made;
3. Write in the first person, about facts you know, relevant to the proceedings – you are essentially telling a ‘story’;
4. You can include evidence like screenshots or photographs, attached to your affidavit as ‘Annexures’.
5. Stick to what is relevant; and
6. Try to be factual, not emotional.

1. You must wait twelve months following separation before you apply for a divorce.
2. You have twelve months from the date of your divorce to settle your property matters or apply to the court for property orders.
3. The court does not impose time limits for parenting matters – the only requirement is that the children are under 18 years old.
4. You must appeal a decision within 28 days of the final order.

If the parties can agree informally on how to divide the assets, there is no need to go to court. We recommend this agreement is put into writing and signed by both parties, to mitigate any disputes in future.

Family violence is a serious social issue that affects everyone in a family – children, parents and other members of the extended family.

The Family Court of Australia and the Federal Circuit Court of Australia (the Courts) take family violence very seriously.

The Courts are guided by the following principles in responding to family violence concerns:

• Safety is a right and a priority for all who attend and work at the Courts.
• Family violence affects everyone in a family, including children.
• Family violence can occur before, during and after separation and it may affect the ability of people to make choices about their family law matter and to take part in court events.
• The Courts have a particular concern about the immediate and possible longer term adverse impacts on children who experience or witness family violence.
• Even if children do not directly witness the violence, they are often very aware of it.

The family violence section of this website outlines what constitutes family violence, the Family Law Act 1975 as it relates to family violence, the effect of family violence on children, notifying the Courts about family violence, and a range of other information you may need if you or someone you know is experiencing family violence.

• If you were married, applications for spouse maintenance must be made within 12 months of your divorce becoming final.
• If you were in a de facto relationship, your applications for de facto partner maintenance must be made within 2 years of the breakdown of your de facto relationship.
• If you do not apply within these time limits, you will need special permission of a court. This is not always granted.

The court considers the needs of an applicant and the respondent’s capacity to pay. The court considers the following about both of you:

• your age and health
• your income, property, and financial resources
• your ability to work
• what is a suitable standard of living, and
• if the marriage has affected your ability to earn an income.

The court also takes into account with whom the children (under 18 years of age or adult children who are disabled) live.

Where the need exists, both parties have an equal duty to support and maintain each other as far as they can. This obligation can continue even after separation and divorce. The extent of the support depends on what the other party can afford to pay.

The Family Court or Federal Circuit Court deal with two types of spousal maintenance applications:

1. Spouse maintenance is financial support paid by a party to a marriage to their former husband or wife in circumstances where they are unable to adequately support themselves.
2. De facto partner maintenance is financial support paid by a party to a de facto relationship that has broken down to their former de facto partner in circumstances where they are unable to adequately support themselves.

Under the Family Law Act 1975 , a person has a responsibility to financially assist their spouse or former de facto partner, if that person cannot meet their own reasonable expenses from their personal income or assets.

1. Obtain valuation information
2. You need to get information to value the superannuation. You should provide the following forms to the trustee of the superannuation fund.
3. The Superannuation Information Kit provides the information and the forms you need, including:

• Form 6 Declaration
• Superannuation Information Request Form, and the
• Superannuation Information Form

4. The superannuation fund may charge a fee for providing the information, and this is paid to them when you send the forms.

5. How is my superannuation valued?
6. There are different types of superannuation. The superannuation splitting legislation sets out methods

for valuing most types of superannuation, but there are exceptions, including:

• self-managed superannuation funds – they are generally valued with the assistance of an expert such as an accountant
• where the Attorney-General has approved a fund using a different valuation method.

7. Decide the method of splitting
8. Either enter into a formal written agreement or obtain a court order. 9.You get court orders about the division of property in two ways:

a.If you and your partner have reached an agreement, then an Application for Consent Orders application can be filed in the Family Court, accompanied by a consent order recording the agreement. The orders can then be made in chambers without either of you attending court, or

b.as a result of a court hearing. Even if you start proceedings, you can reach an agreement at any stage and once the orders recording the agreement are made you do not need to attend court further.

1. A formal written agreement requires that both you and your partner instruct a lawyer, who must sign a certificate, stating that independent legal advice about the agreement has been given.

2. Seek Consent Orders to split superannuation
3. If you cannot reach an agreement with your former partner, seek a court order to split superannuation.

The superannuation splitting law treats superannuation as a different type of property. It lets separating couples value their superannuation and split superannuation payments, although this is not mandatory. Splitting does not convert it into a cash asset – it is still subject to superannuation laws (for example, it is usually retained until retirement ages are reached).

After separation, it is common for parties to divide their assets, to begin on the path to their separate ways. This can be done in a few ways:

1.You and your former partner can agree informally;
2.This agreement can be formalised into consent orders in the Family Court; or
3.If you cannot agree, you can apply for the court to decide and make orders, relating to the division of property and payment of spousal maintenance, if applicable.

How will our property be divided?

There is no ‘formula’ used by the court, nor is there a 50:50 starting point – they decide by looking at all the evidence and making a ‘just and equitable’ decision. Sections 75(2) and 79(4) explain that the decision is based on things like:

• Worth of both your assets, and your debts;
• Financial contributions made by each party, like salary and income; and
• Non-financial contributions made, like care for children and homemaking.

The court will also consider future needs, of each party, like your health and ability to earn.

It is important to keep the court-imposed time limits in mind. If you were married, applications for property adjustment orders must be made to the court within twelve months of divorce. If you were a de facto couple, your application must be made within two years of breakdown of the relationship.

Essentially, the court will work out a percentage outcome: what percentage of the total property pool is afforded to each party? This is done after working through a four-step process:

1.Identify and value all assets and liabilities of the parties. Subtract liabilities from assets, to be left with a ‘net property pool’;
2.Consider the contributions of the parties made to the relationship;
3.Consider the parties’ future needs; and

4.Determine whether the proposed percentage is just and equitable. When considering all the circumstances of the case, is this order fair?

For example, in a pool worth $1 million, if the judge decides a 75:25 split is just and equitable, each party would receive $750,000 and $250,000 of the total pool respectively. To support an order being made in your favour, you would need to provide evidence of your contributions and future needs.

Before you apply for a recovery order you should read the fact sheet Recovery orders. You should also refer to the Australian Federal Police Family Law Kit.

There are different processes for applying for a recovery order depending on whether you have a current parenting order or a parenting case pending in the Court. If there are no parenting orders in place you will need to file an initiating application seeking parenting orders at the same time as applying for a recovery order.

You can apply for a recovery order if you are:

• a person who the child lives with, spends time with or communicates with as stated in a parenting order
• a person who has parental responsibility for the child in a parenting order
• grandparent of the child, or
• a person concerned with the care, welfare and development of the child. For example, you may be the person who the child lives or spends time with but there is no parenting order that states this.

A recovery order is defined in section 67Q of the Family Law Act 1975. It is an order of the Court that can require a child be returned to a:

• parent of the child
• person who has a parenting order that states the child lives with, spends time with or communicates with that person, or
• person who has parental responsibility for the child.

Similarly, if both parents agree, yes. However, there are usually conditions attached, where the travelling parent must inform the other parent about, for example:

• Where exactly the parent and children are travelling, i.e. the accommodation and address;
• Flight and other travel information;
• A contact phone number for during the trip; and
• The duration of the trip.

If you take your children abroad without consent of the other parent, where you share parental responsibility, this could be considered a breach of the orders and you could be penalised.

This is considered ‘parental responsibility’ of a child, and the answer depends on what a court has ordered. If the court has ordered equal shared parental responsibility, this means one parent cannot make a decision considered to have a ‘long-term impact’, without the other parent’s consent, including the children’s name.

The only way a child’s name can be changed, where parental responsibility is shared, is if both parties mutually agree.

If you are not living with the other parent of your child you may be entitled to, or have to pay to the other, child support. Child support is designed to have both parents contribute to the costs of raising children. This is designed to include housing, food, clothing, medical costs, school expenses and day-to-day needs.

Services Australia (formerly the Department of Human Services), also known as the Child Support Agency, manages the assessment of how much child support is payable in each circumstance. This is based on a formula using both parents incomes, and the percentage of care between the parents. This is assessed based on the number of the nights the child or children spend in the respective parents care.

Once as assessment is issued by DHS you have several options to arrange collection of child support:

1. Enter a private arrangement to agree on the amount and payment of child support including potentially by way of school fees, private health premiums or extra-curricular expenses. This can be an informal agreement which means that it is not able to be enforced, or it can be within a formal child support agreement.

Formal child support agreements can be by way of:

a. Binding agreement – This agreement can reflect any payment amount and time frame. Each party must obtain independent legal advice as to the long term effects of signing the child support agreement given it will be in place until the termination date (usually when the children obtain the age of 18 or they no longer reside with that parent). These agreements can only be varied or revoked by agreement between the parties, or an application to the Family Court;

b. Limited agreement – This agreement must be for payment of child support in an amount equal to or more than the assessed amount payable in child support. Neither party is required to obtain independent legal advice. The agreement can be ended by either party after a period of three years, or if there is a significant change in circumstances, prior to that date.
The agreements are then registered with DHS who are entitled to pursue the paying party for collection of child support.

2. Have the child support agency collect the payments of your behalf. DHS have the power to collect payments through alternative methods including having the person’s employer deduct it from their wages and make the payment directly to the child support amount, recovering the amount from any government support, and deducting any amount owing from any tax refund they are entitled to from the ATO. Any arrears will continue to be accrue and will be required to be paid by on of the previously stated methods.

How often can I see my children who do not live with me?

This will depend on what you and the other parent decide, or if there is no agreement, then the court will decide.

There are a range of possible outcomes:

1.Each of you have the children for a week at a time;
2.The children ‘live’ with one of you and ‘spend time’ with the other, for example every weekend; 3.The children ‘live’ with one of you and ‘spend time’, supervised, with the other at, for example a supervision centre.

Independent Children’s Lawyers (ICL)

An ICL is exactly what they sound like – a lawyer appointed to represent the children and their best interests.

They are usually appointed by the court, when:

• Allegations of child abuse or neglect exist;
• Serious mental health issues exist in relation to parents or children; or
• There are complex issues involved in the matter.

They provide an independent perspective about what arrangements are in the child’s best interests. In order to do this, they do things like meet with the children, their school teachers and counsellors, and examine any medical records.

Documenting Arrangements

As mentioned, arrangements for the children can be documented in an informal ‘Parenting Plan’, or formal consent orders. In some cases, the documents need to be provided to your children’s school or childcare centre.

The Parenting Plan can also be made legally enforceable, by presenting them to and gaining
approval from the court. This means, if one parent does something against what the orders or Plan says, the court may penalise them.

Who has to support the children financially?

Again, this depends on what the court decides (or the parents, in a parenting plan). The law says both parents are financially responsible – even if a parent has no contact with their child.

If parents can’t agree on the amount each party should pay, they can apply to Services Australia (formerly the Department of Human Services) for an assessment. The dollar figure is based on both parents’ incomes and the financial needs of the children, including health, education or childcare and any extracurricular activities.

A parenting plan is a voluntary agreement, made between both parents without going to court. It must be signed by both parents and can be changed as long as both parents agree.

Parenting plans are not legally enforceable, but parents can take steps to have the terms of the parenting plan formalised. They relate to things like who the child will live with, when they will spend time with the other parent, and arrangements for special days like birthdays or school holidays.

To be recognised by the Family Law Act, the Plan must consider the ‘care, welfare and development’ of the children.

Alternatively you can enter into consent orders which are legally enforceable. Once you and the other parent have agreed and signed the consent orders, they are filed in the court and considered by a registrar to ensure they provide for the children’s best interests.

These interests are listed in section 60CC of the Family Law Act, and include things such as:

• The benefit to the child of having a meaningful relationship with both parents;
• The need to protect the child from physical or psychological harm;
• The extent to which each parent has fulfilled their obligations as a parent; and
• The capacity of each parent to provide for the needs of the child.

If you apply to the court for parenting orders, the court will decide your arrangements for the children, based on things like parties’ contributions and the children’s needs.

Through the court’s eyes, the ‘best interests of the children’ are paramount, or most important. Sometimes, the court will order that children live with one parent and ‘spend time’ with the other.

For example, the children may live with the mother and spend every second weekend with the father. It is also possible for the court to order that the children spend a week with each parent. The outcome of each and every parenting matter is different, and depends on the individual circumstances and evidence of each case.

The court also decides who has parental responsibility, which means who gets to make decisions about the children, for example where they will attend school.

Usually, the court orders ‘equal shared’ parental responsibility, where the parents decide together, any decision that would have a long-term impact on the child. It is up to one parent to provide evidence of why ‘equal shared’ should not be ordered.

Separation is usually stressful for your children, and they, like you, may experience a range of emotions. Children need care and support from both parents – for example, reassure them that you still love them, allow them to love both of you (don’t make them choose) and make sure your children don’t hear or see you fighting with your partner.

It is important to remember parents must first make a ‘genuine effort’ to resolve child-related disputes before attending court. This is known as family dispute resolution (‘FDR’), which parties attend with a FDR practitioner, who will issue a ‘FDR certificate’, which may certify that:

1. Parties made a genuine effort to resolve, but they were unable to;

2.Parties did not make a genuine effort to resolve; or
3.One party failed to attend FDR.

An FDR practitioner may also decide to dispense with FDR, if satisfied one party is unable to negotiate freely, due to, for example, their psychological health, or a risk of violence.

Once the certificate is issued, parties must file it in their court application when they commence legal proceedings. There are another three things to file alongside this, in support of your application:

1. An Initiating Application, which is a form stating the orders that you seek;
2. A Notice of Child Abuse, Family Violence or Risk, so the court can decide whether urgent intervention is necessary; and

3. Your Affidavit, which is a written account of your evidence and experiences.

A marriage is legally binding – so a divorce also involves the law. To have your divorce formally recognised, you must apply to the court.

However, you and your spouse can ‘separate’, while remaining legally married – see the above paragraphs, ‘Separation’. This avoids court, but means your marriage is still recognised by law.

The Family Law Act established the principle of no-fault divorce in Australian law. This means that a court does not consider why the marriage ended. The only ground for divorce is that the marriage has broken down irretrievably – this is what you need evidence of. That is, that there is no reasonable likelihood that you will get back together. You must have been separated for at least 12 months and one day. Such evidence may be, for example, proof of different residential addresses, closure of joint bank accounts, and little to no telephone or text communication.

If there are children aged under 18, a court can only grant a divorce if it is satisfied proper arrangements have been made for them.

A divorce order becomes effective one month and one day after it has been made. On this date, a Certificate of Divorce is also issued. This means the parties are no longer legally married to one another and are free to remarry.

You can apply for a divorce in Australia if either you or your spouse:

• Regard Australia as your home and intend to live in Australia indefinitely;
• Are an Australian citizen by birth, descent or by grant of Australian citizenship; or
• Ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.

It is important to note that you are not eligible to apply for divorce if you have been married for less than two years.

If you are eligible, you need to satisfy the court that you and your spouse have lived separately and apart for at least 12 months, and there is no reasonable likelihood of resuming married life. It is possible to live together in the same home and still be separated. You will need to provide a copy of your marriage certificate when you make the application.

You can apply solely or jointly with your spouse. You can also apply for a divorce online, through the Federal Circuit Court. You will have to pay a filing fee, but you can apply to have this reduced if, for example, you’re experiencing financial hardship.

Once you have filed your application you will need to arrange personal service on the other party.

Should you wish to formally and legally separate from your former husband or wife, acknowledging the breakdown of the marriage, you can file for a divorce.

No-fault principle

The Family Law Act established the principle of no-fault divorce in Australia. When granting a divorce, the court does not consider why the marriage ended and the only ground for divorce is that the marriage broke down and there is no reasonable likelihood that the parties will get back together – this is what’s called ‘irretrievable breakdown’.

The Federal Circuit Court of Australia has the jurisdiction, or power, to deal with divorce under Part VI of the Family Law Act. The granting of a divorce does not determine issues of financial support, property distribution or arrangements for children. It simply recognises that the marriage has ended.

1. Early legal advice can be very helpful when considering separation. Make sure to engage an experienced family lawyer, preferably one who practices exclusively in family law. Knowing and understanding the process and procedure involved in a legal separation is imperative. If you know your rights and entitlements, it will assist you in any discussions that you may have with your spouse partner. You may wish to make a proposal or if you are considering a proposal that has been made by your partner, you will be informed as to whether what is being offered is fair or reasonable.

When going to see your lawyer, you will get the most out of your first appointment if you are organised.

• If you are seeking advice regarding parenting matters, then write down what parenting arrangement you consider to be in your children’s best interest and why.
• If you have any concerns, then make a list and give examples of incidents which have caused you to hold the concern.
• If you have any evidence, such as text messages or photographs, then make sure to print them or save them somewhere safe where they will not be lost or deleted.
  If you are seeking advice regarding financial matters, then make a list of your current assets and liabilities.
• Write out a brief chronology of the relationship history in bullet point format, addressing when the relationship started who had what assets or liabilities, what were your respective roles during the relationship, were there any lump sum financial contributions made by either of you or your family or friends, such as gifts or inheritances or compensation payments.

2. It is sometimes a good idea to start collating your financial documents which can evidence what the balance of any accounts (bank, superannuation, shares) at the time of separation. This will also be relevant for what each of you held at the beginning, contributed to during, and any major transactions throughout the relationship.

It is recommended to speak to your lawyer before withdrawing money from any jointly held assets, or selling or disposing of any assets. Do not draw money from accounts which you are not legally entitled to draw from (for example a company account to which you are not entitled). Ask your lawyer to advise you as to your options and to recommend the best way to protect assets.

3. Do not be tempted to talk to anyone with an ear. Separation is an emotional event and if it can be

done politely and considerately then it will be easier on all involved.

• Consider sharing your emotions with a qualified psychologist rather than friends. Avoid social media.
• Do not vent via inappropriate social media posts, which can potentially be used as evidence in future court proceedings.
• Think about changing your personal passwords, including to cloud storage, which can sometimes be accessed via multiple devices in a household.

To separate, you do not have to apply to a court, or fill in any forms. You will not get a certificate saying you are separated – it is much less formal than divorce.

You will need to:

• Make proper arrangements for the children first;
• Tell organisations such as Centrelink and Medicare that you are separated;
• Make proper arrangements for any children involved;
• Tell your family and friends; and
• Sort out your financial affairs.

Separation is when you stop living together as a couple, even if you are still living in the same house. You do not need to get permission or your partner’s agreement. You have ‘split up’. Separation is a major step for everyone, and a time when you need help and information. Most people admit feeling the worst they have ever felt in their life. Grief, where you feel the loss of an important part of your life, may be the reason for this.

You may experience the following:

• Shock and denial;
• Anger and blaming your former partner or another person;
• Sadness and depression; and
• Moving forward, acceptance and adjustment to your new life.

Talking to friends and family can help you sort out your feelings. Trained help, like counsellors and support hotlines, may assist you and your children cope better with the changes.

Some of the things you need to consider are:

• Where will your children live, and who will take care of them?
• How will you and your former partner support yourselves, and the children?
• What, how and when will you tell the children, family and friends?
• Who will pay outstanding bills or debts?
• Who will stay in the family home?
• How will the rent or mortgage now be paid?
• What will happen to any joint bank accounts, or other joint finances?
• What will happen to property like cars and furniture?
• Are you going to change your will?