Family & Relationships

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.

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.

A de-facto relationship is defined in section 4AA of the Family Law Act, and includes partners who:

… have a relationship as a couple, living together on a genuine domestic basis.

 

De-facto couples are those who are not married. So, what happens if they separate? Is the division of property viewed the same as married couples?

 

In order for the court to hear your application, the court will consider the following matters:

1. The relationship was for at least two years;

2. There is a child of the relationship;

3. The relationship is or was registered by law; or

4. Significant contributions were made by one party, and failure to issue an order would result in serious injustice.

 

You must also satisfy the court that:

 

If you think you satisfy these criteria, your application to the court is using the same forms that are used for married couples. As for what the court will decide, this depends entirely on your circumstances and there is no one answer, nor is there a 50/50 presumption. Typically, the decision is made following a four-step process:

1. Identify and value all assets and liabilities of both parties, to have a net ‘property pool’ dollar value;

2. Assess the financial and non-financial contributions of both parties, for example parenting, wage-earning and homemaking;

3. Consider the future needs of each party, for example the income earning capacity or who has the primary care of the children; and

4. Decide whether the proposed percentage division is just and equitable.

 

The dollar value will then tell you what you need to do – for example, if one party is awarded 60% of the pool, and the family home is worth 60% of the pool, it is reasonable for them to keep the family home. If the family home is valued at 80% of the pool, the family home may need to be sold.

 

De facto partner maintenance may also be payable in some circumstances. Typically, it can be ordered where one party cannot meet their own expenses, and the other party has capacity to. For example, where one party’s income exceeds their weekly expenses, and the others falls short, spousal maintenance may be payable. For more information, please contact our office to discuss.

It is important to note that there are time limits on these applications. For de facto couples, you must apply within two years of the relationship breakdown.

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.

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?