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Family Law Questions

How do I get divorced?

To obtain a divorce you must be separated for a period of 12 months.

 

You can still obtain a divorce if you were separated for 12 months but were living under the same roof.  In these circumstances both parties and a third person (usually a relative or friend of the parties) must provide the Court with an Affidavit showing that the parties have been separated during this period.

 

You can make an application on your own behalf for a divorce or you can make an application with your spouse which is called a joint application.

 

You can only oppose a divorce on very limited circumstances.  You may be able to obtain a decree of nullity in your matter and if that is the case then a divorce hearing will be adjourned until your application for nullity is heard by the Court.

 

If you are intending to re-marry you should not set a date for your wedding until your divorce Orders are final.  Generally it takes 6 weeks between the filing of a divorce application and the listing of your matter in Court.  If Orders for divorce are made at this Court event then they take one month and one day to become final.

 

If you require advice on divorce or other Family Law matters please telephone our experienced Family Law practitioners today on 0419 550 586.

 


 

How do I make arrangements for my children?

If you have agreed arrangements for your Children, Burke Family Law can convert them into Orders which are submitted to the Family Court to be administratively sealed by the Court.  It is important to put Orders in place as opposed to trying to rely on a parenting plan as you cannot enforce a parenting plan but can enforce Orders made by a Court.

 

If you have not agreed arrangements for your children the Family Law Act 1975 requires that you attend mediation to discuss your child arrangements before starting Court proceedings.  There are a number of circumstances however when mediation is not appropriate and you might need urgent negotiations by a solicitor to take place or to issue in Court immediately.  For instance when there has been family violence or when the matter involves urgency.

 

A Court in determining child arrangements will first consider who should make the long term decisions for a child.  If a Court determines that both parents should have joint parental responsibility then it will consider whether equal time is appropriate and in the best interests of the child.  If a Court does not consider that equal time is appropriate it will then consider whether substantial and significant time is appropriate and if that is not appropriate the Court will consider what time with a parent is in the best interests of the child.

 

An application for parenting Orders can be made by a child, parent, grandparent or any person interested in the care, welfare and development of a child.

 

If you require advice on parenting arrangements or other Family Law issues telephone our experienced Family Law practitioners today on 0419 550 586.

 


 

What do I do if my children are missing?

If your children have been withheld from you but you do not know where they are but you know they are within Australia it is important to make an urgent application to the Family Court for Location Orders and Recovery Orders.

 

If you believe that your children are about to be removed from Australia it is important to make an urgent application to the Family Court so that a national watch list Order is put in place which will allow the Federal Police to stop the removal of your children from Australia at Australia’s border.

 

If your children have been removed from Australia and are being withheld from you it is important to find out if they are in a Hague Convention country.  If they are an application can be made using the Hague Convention to recover the children.

 

If you require advice on children that are missing or other Family Law issues telephone our experienced Family Law practitioners today on 0419 550 586.

 


 

How is child support calculated?

It is important that on the day that you separate, or as soon after this day, that you find out if you are entitled toand if you are make an application for Child Support with the Child Support Agency as Child Support cannot be back dated.  You are not required to pay child support until such an application is made.

 

Child support is calculated using a six step calculation which takes into account the income of both parents, the age and number of children and how many nights each parent is with the children.

 

If you are dissatisfied with the amount of Child Support you receive or have to pay you can ask for re-assessment of your Child Support.  There are a number of appeal processes to challenge Child Support which is paid or received.

 

The Family Court can ultimately make a Departure Order for Child Support.

The Child Support Agency has wide ranging powers to ensure Child Support is paid, such as receiving Child Support payments directly from a person’s employer,  seizing tax refunds and by stopping a derelict non-payer from leaving Australia to travel.

 

If you require advice on Child Support or other Family Law issues telephone our experienced Family Law practitioners today on 0419 550 586.

 


 

When is spousal and de facto maintenance payable?

Maintenance is payable when one person is unable to support himself or herself adequately and if the person making the payments is reasonably able to do so.

 

Time limits apply to maintenance.  You must make an application within a year of a divorce taking effect or within 2 years of a de facto relationship ending.  Applications after these time limits are more difficult as a Court will need to grant leave for you to be heard.

 

To find out how much maintenance is payable or how much maintenance you could receive telephone our experienced Family Law practitioners today on 0419 550 586.

 


 

Can I get maintenance if my children are over the age of 18?

If you have a child over the age of 18 it is still possible to obtain maintenance for them if it is considered necessary to enable the child to complete his or her education or because of a mental or physical disability of the child.

 

Periodic maintenance is considered first as this can be adjusted over time if the needs and circumstances of the parties require this.  If a party does not pay adult child maintenance which in accordance with Court Orders, it is possible to apply to have Orders varied so that a lump sum is payable.

 

To find out how much maintenance is payable or how much maintenance you could receive telephone our experienced Family Law practitioners today on 0419 550 586.

 


 

What do I do if Family Violence is involved?

The Court’s definition of Family Violence is very broad; it includes physical violence against an adult or child but also includes damage to property, psychological abuse and economic abuse.

 

We can obtain an Intervention Order from the Magistrates Court, on an urgent basis, to stop the abusive person from coming within 200 metres of your home, work and where your children go to school.  The abusive person will have to surrender their fire arms.  Final Intervention Orders last 2 years and it is a criminal offence if a person breaches them.  If there is a breach of these Orders you would call the police who will then arrest the abusive person.

 

It is important to be properly represented if you are faced with potential Intervention Orders against you as they can be taken into account by the Family Court if you are fighting over spending time with your children in the future.

 

To find out more about Intervention Orders telephone our experienced Family Law practitioners today on 0419 550 586.

 


 

Where do I stand if Surrogacy or IVF was used?

If a woman uses an artificial conception procedure, whilst that woman was married or in a de facto relationship and the woman, her partner and the person who provided genetic material all consented to the procedure then the child born is that of the woman and her partner or spouse and not that of the third person who provided genetic material.

 

It is important that when a child is born of an artificial conception procedure in this way or from a surrogacy arrangement that once the baby is born the people involved seek Orders from the Family Court to solidify their arrangements.  If all of the parties are agreed on the arrangements, these Orders can be sought administratively.  Orders will reduce the likelihood of disputes in the future.

 

Even though a person who provided genetic material in this process is not considered the parent of that child, it is still possible for that person to make an application to the Family Court to seek time with the child.

 

To find out more about parenting Orders involving artificial conception procedures or surrogacy telephone our experienced Family Law practitioners today on 0419 550 586.

 


 

How is property divided?

The Courts have a wide definition for what property can be divided between the parties.  It includes your home, car, shares, household contents, interests in businesses,  companies or partnerships, inheritances, lottery wins, redundancy payments , long service leave and assets of a trust.

 

Superannuation is also considered property and can be split between the parties.

It does not matter if assets were obtained prior to the relationship, during or after the relationship.  It does not matter if the asset is in your or your partner’s name or in both names.   It is important to consider whose name an asset is in to work out whether a caveat is appropriate to protect your rights to that asset.

 

If you have reached a deal over how much property you will each get this arrangement can be converted into Consent Orders which are submitted to a Court to be considered and administratively sealed.  A Financial agreement can also be drawn up to sort out the property arrangements at the end of a relationship.

 

If you cannot agree on what property settlement is appropriate in your circumstances.  Burke Family Law can negotiate a property settlement on your behalf and if that is not possible take the matter to the Federal Circuit Court or Family Court to resolve the property matter between you.

 

The Courts will look at whether an adjustment of your property is appropriate and in most cases it will be.  It will then identify and value the property, consider the contributions both financial and non-financial of the parties, look to the parties’ future needs and consider whether the adjustment of property is just and equitable.

 

It is highly unlikely that a property split of 50/50 will apply in your case.  Every property case is different and it turns on its individual facts. 

 

To find out more about Family Law Property matters telephone our experienced Family Law practitioners today on 0419 550 586.

 


 

Are Financial Agreements binding?

Financial Agreements can be entered into before, during or after a marriage or de facto relationship.

 

Financial Agreements are binding as long as they comply with the requirements of the Family Law Act 1975 and the usual requirements of a contract.

 

Financial Agreements can provide peace of mind for you and your children from a first marriage when entering a de facto relationship or second marriage. 

 

To find out more about Financial Agreements and other Family Law matters telephone our experienced Family Law practitioners today on 0419 550 586.

 


 

What law applies if I am in a same sex relationship?

A de facto relationship now includes same sex partners.  Same sex partners can now enjoy the same law for the distribution of property that applies to those in a de facto relationship.

 

To find out more about Family Law Property matters telephone our experienced Family Law practitioners today on 0419 550 586.

 


 

What law applies if I am in a de facto relationship?

People in de facto relationships (including same sex relationships) have the same rights as those that are married including the right to a property adjustment and maintenance.

 

A de facto relationship is found when it is, “a relationship of a couple living together on a genuine domestic basis.”

 

Sometimes a de facto relationship is disputed and a Court would then consider:

  • The length of the relationship;
  • The nature and extent of their common residence;
  • Whether a sexual relationship exists;
  • Degree of financial dependence and support;
  • Whether the relationship was registered;
  • Ownership, use and acquisition of property;
  • Degree of mutual commitment to a shared life;
  • Care and support of children;
  • Reputation and public aspects of the relationship

 

Generally a de facto relationship is found if it is 2 years in duration but this time period is not an absolute requirement.

 

If you have reached agreement as to the distribution of your property, we can convert that arrangement into Consent Orders which are sealed administratively by a Court.

 

If there is no agreement as to your property division, you must make an Application to Court for your property matter within 2 years of separation so that it can be heard by a Court.  After that time whilst it is not impossible it is harder to have your matter heard by a Court.

 

To find out more about Family Law Property matters telephone our experienced Family Law practitioners today on 0419 550 586.