Family Law

Before you apply for a Divorce, you must decide whether you are filing the Application on your own (sole) or together with the other party (joint). If you wish to file a sole Application, you are only required to sign the Application. If you wish to file a joint Application, both you and the other party are required to sign the Application. In either circumstance, Court attendance will not be required if there are no children under the age of 18 years, however Court attendance is required if there are children under the age of 18 years so you can satisfy to the Court that proper and suitable arrangements have been made for the care and responsibility of the children. There are also a number of things to consider when applying for a Divorce:

• Have you been married for less than 2 years?
• Are you separated and living under the same roof in the last 12 months?
• Do you have children?
• Can you locate your spouse?
• Has there been a change of name from married or maiden name?

If you are filing a joint Application, you will also need to arrange personal service of the Application on your spouse. 

You must also resolve or commence proceedings in relation to property settlement and/or spousal maintenance within 12 months after you have obtained a Divorce. 

We encourage you to obtain independent legal advice prior to filing any Application with the Court. 

Upon a separation, it is important to resolve your financial affairs and have any agreement reached formally recorded in a Consent Order obtained by the Court or Binding Financial Agreement pursuant to the Family Law Act 1975. Unless a property settlement is determined by a Court Order or Binding Financial Agreement, then the issue of property settlement can potentially resurface by either party commencing Court proceedings in the future to make a claim against the other party. 

While a Court Order and Binding Financial Agreement both serve to finalise financial relationships following a separation, the question of the most appropriate method is often asked to ensure a fair settlement. If parties are unable to agree on an overall property settlement, it may be necessary to apply to the Family Law or Federal Circuit Court for Financial Orders. There are a number of things to consider prior to applying for Financial Orders through the Court, most importantly that the Court needs to be satisfied that the Orders are just and equitable (fair to both parties). Binding Financial Agreements are not approved by a Court and there is no requirement that they be just and equitable. There may be practical reasons which lead parties to agree upon the terms of an agreement apart from fairness which is why a Binding Financial Agreement is preferred. In relation to preparation of each document, applying for Court Orders is generally a simpler and less expensive process compared to a Binding Financial Agreement. This is because Binding Financial Agreements must be drafted according to the circumstances of each particular matter, whereas Court Orders are supported by an application prepared in accordance with a particular Court approved form. Irrespective of which option you decide to pursue, independent legal advice should be obtained at the earliest possible opportunity.

A Parenting Order typically deals with the following issues:

• Parental responsibility (duties, powers and responsibilities and authority which parents have
• Who the children live with
• Who the children spend time with
• Payment of Child Support
• Any other aspect of care such as welfare and development of the child

When a Parenting Order is made, it is a legal requirement that parties follow the Order. There are serious ramifications which flow from a party contravening a Parenting Order.

A protected person (victim) or a representative of the protected person (Police Officer or parent), may apply for an Intervention Order. In circumstances where Police believe that a person needs protection, they may apply for an Intervention Order on their behalf, even if the protected person does not want an Intervention Order to be made. To apply for an Intervention Order, a form needs to be completed from the Magistrates Court website and an appointment made at your local Magistrates Court to file your form and have a Hearing date listed. If you are concerned for your safety prior to the Hearing date, Interim Orders may be made by a Magistrate to be in full force and effect leading up to the Hearing of your matter in Court. 

If you are a Respondent to an Intervention Order, you will be served copies of the Application, Summons and any Interim Orders made. If you are served, you can:

• Agree to an Intervention Order being made while disagreeing with that is said about you in the Application
• Argue against the Intervention Order being made
• Offer an Undertaking (promise) which the Affected Person must agree to