Getting legal advice and attending family dispute resolution is preferable because it may enable you to reach a resolution without going to court.
Family law is a broad area of practice dealing with issues arising from the breakdown of a relationship or other unique family circumstances, from parenting disputes to financial settlements.
Lawyers at our firm have vast experience with, and a thorough understanding of, the unique challenges of family law practice. We understand that our clients can be emotionally distressed during challenging family disputes and we ensure that we deal with our clients in a sensitive and caring manner. We pride ourselves on navigating our clients through the world of family law in an inexpensive and expeditious fashion.
With a Senior Associate specialising in family law, our firm offers a full range of services in this area including-
De facto relationships:
If you are living together as a couple with your partner on a genuine domestic basis, you are not related by family, and you are not legally married, you are a party to a de facto relationship under s4.AA of the Family Law Act 1975.
Whilst parties to a de facto relationship could always apply to the courts to determine children’s matters, as of 1 March 2009 you can also apply to the Family Court or Federal Magistrates Court to have a financial or property dispute determined in the same way as married couples if the following criteria are met:
- You were in a de facto relationship with your former partner which has broken down
- You meet one of four gateway criteria
- You have a geographical connection to a participating jurisdiction
- Your relationship broke down after 1 March 2009, although you may still be eligible to apply to the Courts if your relationship broke down prior to this date
If you separate, you and your partner will need to make several immediate decisions about your children and assets including where your children will live, who will stay in the house, who will pay outstanding debts and the rent or mortgage, and what will be done with property and furniture.
Our staff are able to assist you at each stage of separation to reduce the burden of such decisions on you and your family.
Applying for a divorce
You can apply for a divorce in Australia if:
- you are an Australian resident or living in Australia,
- you and your partner 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 but still be separated. However, to ensure that you truly are separated, it is best to speak with one of our lawyers.
In granting a divorce, the court will not consider why the relationship broke down. It will consider only whether there is no reasonable likelihood that you will get back together, and whether arrangements have been made for any children under 18.
Whether or not you are a party to a de facto relationship, if you are going through a separation it is important to seek legal advice. At Lewenberg & Lewenberg we can guide you through the process of making arrangements in relation to children and financial matters.
Children’s matters cover the way that separation affects children, how arrangements for children are made after separation, and how such arrangements are enforced through various orders. The primary orders relating to children’s matters include-
Orders for parental responsibility
A court can make parenting and parental responsibility orders under s61D, which confer parental responsibility, for a child on a person to the extent that the court decides. Parental responsibility is defined by s61B as all duties, powers, responsibilities and authorities which, by law, parents have in relation to children.
There is a presumption that equal shared parental responsibility is in the best interest of children. Orders for parental responsibility are made in consideration of this presumption.
‘Living with’ orders
These are a category of parenting orders that relate to with which parent a child will live. They are made under s65M and prohibit a person from, contrary to the order
- (a) removing a child from the care of a person
- (b) refusing or failing to deliver or return the child, or
- (c) interfering with the exercise of powers or obligations that a person has under the order
‘Spend time with’ orders
Additionally, parenting orders can relate to with which parent a child spends time under s65N. This section prohibits a person-
- (a) hindering or preventing a person and the child from spending time together under the order, or
- (b) interfering with a person and the child benefitting from spending time with each other under the order
It is also important to note that no application for parenting orders can be made before attending family dispute resolution (s60I). However, an application can be made before family dispute resolution if any of the following exceptions apply (s60I(9))-
- (a) The applicant for the order is applying for the order to be made with the consent of the other parties to the proceeding, or the application is in response to a parenting order application made by another party to the proceeding
- (b) the court is satisfied that there are reasonable grounds to believe that
- (i) there has been abuse of the child by a party to the proceeding, or there would be risk of such abuse of there was a delay in applying for the order, or
- (ii) there has been family violence by one of the parties to the proceedings, or there is a risk of such violence
- (c) the application relates to a particular issue on which a parenting order has been made in the past 12 months, and a person has shown serious disregard for his or her obligations under the order
- (d) the application is made in circumstances of urgency
- (e) one or more of the parties is unable to effectively participate in the family dispute resolution
Changing an existing order
The Court will grant application to change an existing order in relation to your children if you can show that there has been a significant change of circumstances such that a change is necessary.
What should I do if a parenting order has been breached?
If a parenting order has been breached, it is important to be aware of your legal options. Obtaining legal advice is important in order for you to understand how the law applies to your case, and what is the best way to move forward including whether court action is required.
In determining whether an order has been breached, the Court will consider whether a party has intentionally contravened an Order, or failed to take reasonable steps to comply with it.
If the court is satisfied that an Order has been breached, it will then consider whether there was a reasonable excuse for that breach. For example, whether the person did not understand the obligations imposed by the Order, the person believed the breach was necessary for the health and safety of a person, or whether the breach was longer than necessary to protect the health and safety of that person.
Penalties for a breach
If the Court is satisfied that an Order has been breached without reasonable excuse, under Part VII of the Family Law Act it may;
- Order attendance at a post-separation parenting program
- Compensate for time with a child or reasonable expenses lost as a result of the contravention
- Order that a fine be paid or imprisonment
- Order that a person participate in community service
The law governing breach of orders is complex and legal advice should be sought if you are dealing with a matter in this area.
What if my partner and I have agreed on arrangements?
You do not have to go to Court for agreed arrangements after you separate. Instead you can either make a parenting plan with your partner, or enter into Consent Orders and have those formalised by the court.
Our lawyers can advise you on the legal effect of any parenting plan or consent orders, and assist you in applying for such orders.
Alternatively, if you and your partner cannot agree on arrangements, you can apply to the court for parenting orders under s.64B of the Family Law Act in relation to any matter relating to a child and their welfare.
Staff and partners at Lewenberg & Lewenberg have extensive experience in this application process.
Property and Financial settlements
A parent is financially responsible for their child irrespective of any separation, divorce, separate living arrangement or re-marriage. If your children were born after 1 October 1989, or you were separated before this date, you must apply to the Child Support Agency (CSA) for assistance in making child support arrangements. You can contact the CSA on 131 272. You should contact the CSA as soon as possible to get an idea of what you might receive or have to pay.
If you and your partner agree on child support arrangements, then one of our lawyers can draft a child support agreement, thereby opting out of the automatic assessment that you would usually have to undergo. This agreement can be registered with the CSA for enforcement.
Agreeing on property and money arrangements
You and your partner can avoid the expenses of court by entering into your own settlement agreement. These agreements can be formalised by consent orders or binding financial agreements.
You can enter into a financial agreement with your partner before, during, or after a marriage or de facto relationship if you and your partner have signed it, and both of you obtained independent legal and financial advice before signing.
Property and money if you do not agree
If you decide to apply for financial orders, you may ask the court for orders relating to your property, maintenance issues, or child support.
Your case will be decided based on the discretion of the judicial officer in charge of your matter, taking into account the unique circumstances of your case. Therefore, your decision may be decided differently to others that you have heard about.
Generally, the courts will consult the following principles in determining financial disputes after a relationship breakdown-
- An assessment of the value of your assets and liabilities
- The direct and indirect contribution of each party to the marriage or de facto relationship
- The non-financial contributions to the marriage or de facto relationship such as being a homemaker or parent
- Future requirements or needs factors in relation to age, health, financial resources, ability to earn, and care of children
Litigating property matters in the Family Court or Federal Magistrate’s Court requires full financial disclosure by both parties.
Separating couples can enter into a formal written agreement to split their superannuation, seek consent orders to split their superannuation, or seek a court order to split superannuation if no agreement can be reached. Our lawyers can provide extensive advice on these options, which should be sought as orders relating to splitting superannuation can be complex.
If you are seeking orders in relation to superannuation, you must inform the relevant superannuation fund trustee for the purposes of procedural fairness.
What is maintenance?
Maintenance is financial support paid by one party to their husband or wife (or former husband or wife) in circumstances where they are unable to adequately support themselves. Maintenance can be paid on an interim or long-term basis. Broadly speaking, for maintenance applications to succeed, one party must have a need for maintenance, and the other party must have an ability to meet that need.
In determining a maintenance application the court considers-
- Your age and health
- Your income, property, and financial resources
- Your ability to work
- What is a suitable standard of living
- If the marriage has affected your ability to earn income
- With whom the children (if under 18 or disabled) live
Our experienced lawyers at Lewenberg & Lewenberg can provide advice as to whether you are eligible for maintenance.
Complying with financial orders
A financial order can require a person to-
- Pay money to a person by a certain time
- Transfer or sell property
- Sign documents
If a financial order made under the Family Law Act has not been complied with, you may attend dispute resolution, get legal advice, or file an appropriate enforcement order with the courts. Getting legal advice and attending family dispute resolution is often preferable because it may enable you to reach a resolution without going to court.
Before starting any proceedings to enforce a court order, you should seek legal advice.