Family Law FAQs
Why should I see a family lawyer?
A family lawyer can provide you with independent legal advice in relation to your rights and entitlements and can also advise you on how you should proceed having regard to your particular situation and circumstances. We recommend that you receive such advice before commencing negotiations with your former partner.
Call Family Law now on (1800) 217-217 to schedule your free 20 minute consultation.
We have an agreement. Now what?
If you and your former partner have reached agreement in relation to dividing the assets and liabilities and/or the future care arrangements for your children, you can enter into consent orders which are filed in the Family Court of Australia. Once the consent orders have been formally issued from the Court they are legally binding. Alternatively, you may wish to enter into a Binding Financial Agreement or a parenting plan. We emphasise that a written agreement that is not sealed by the Court or detailed in a financial agreement has little force or effect and may not be recognised by the Court.
What happens to the kids?
There is no hard and fast rule in relation to where the children should live or how much time the children should spend with each parent. Children’s matters are dealt with on a case by case basis and the Court’s emphasis is always on the best interests of the children.
Do I have to leave the family home if we separate?
No. Some people choose to remain living under the same roof while they have separated and until they have agreed on how to sort their finances.
We have separated and I have no income and little knowledge in relation to our finances. What should I do?
It is important to immediately obtain independent legal advice. You are entitled to request your former partner disclose certain financial documents to you. You also may be entitled to seek spousal maintenance be paid to you from your former partner.
What factors are relevant to consider when negotiating a property settlement?
The Family Law Act 1975 (Cth) sets out the matters to be taken into account in a property settlement. Such considerations include:
- Financial contributions.
- Non-financial contributions.
- Future care arrangements for the children.
- Future factors such as health, age, income earning capacity, child support etc.
What can you include in a parenting plan or consent orders?
A parenting plan or consent orders regarding the future care arrangements for the children can include not only time spent with children but can also include other important matters such as schooling, religion, special occasions, telephone or Skype communication, overseas travel, health and/or medical matters and so forth.
What are parents’ obligations with respect to financially supporting children when separated?
The Child Support Agency handles all child support in Australia and has a set formula in determining what is payable. CSA has an informative website in relation to child support and also includes a calculator to estimate child support payable. Parents can also enter into a private agreement regarding child support, which is commonly referred to as Binding and Limited Child Support Agreements. These agreements should be drafted by a lawyer.
Can I take the children to live somewhere else?
There is no yes or no answer to this complicated question. You should seek independent legal advice prior to moving and taking the children. The provisions of the Family Law Act 1975 do not allow a parent to unilaterally relocate with the children. However, some circumstances are extremely complex and it is essential to get independent legal advice if considering this course of action.
We can’t reach an agreement. What can I do?
There are a number of options available to you. These can include mediation, collaborative law, and counseling, engaging a lawyer to act on your behalf and negotiate with your former partner or their lawyer. As a last resort, an Application to the Family Court can be made and proceedings can be instituted. The Court will make the decision for you.
I’m a grandparent. What are my rights in relation to my grand children?
The Family Law Act 1975 acknowledges the important relationship between a child and their maternal or paternal grandparents. You can apply to the Family Court for Orders to see or spend time with your grandchildren. The Court focus is the best interests of the child which includes the child’s relationships with extended family members such as grandparents, aunts, uncles and so forth.
When can we get a divorce?
To obtain a divorce order you need to satisfy the Court that you and your former husband or wife have been separated for a period of at least 12 months.
Are there any time limits?
Yes. For married couples who obtain a divorce order, they must finalise property matters (i.e. consent orders or instituting proceedings) within 12 months of the date of the divorce order. For de facto couples, they must finalise property matters within 2 years of the date of separation. Exceptions can apply if you are out of time.