Frequently Asked Legal Questions
General
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Family Law FAQs
Unfortunately, separation often means that one partner is left without adequate funds to support themselves while the other partner has most of the resources. The Family Law can address this imbalance by making an Order for...
It is quite simply a friendlier and practical method of dispute resolution where the lawyers for each party work together to help parties to come to their own out of court settlements. Collaborate law or Collaborative Practice involves a series o...
Without the protection of a Consent Order or a Financial Agreement documenting the transfer of property or superannuation between parties on the breakdown of the relationship there is a risk that the other party will make a further claim in the futur...
Even if you have come up with a settlement plan you both agree on, we strongly recommend you obtain legal advice so you can make an informed decision whether that agreement is just and equitable in all of the circumstances. We also strongly recomm...
A Financial Agreement can’t deal with parenting matters or child support; nor can it deal with a person’s estate after death. A Financial Agreement can deal with a wide range of issues including the following: Quarantine of pre-r...
You can make a Financial Agreement dealing with the division of property interests at any stage of a relationship. There are 6 different types of Financial Agreements: before a de facto relationship (S90UB) during a de facto re...
Provided that both you and your partner agree (consent is essential), the only protection is to enter into a Financial Agreement (also known as a ‘BFA’ or a ‘pre-nup’) which complies with the provisions of the Family Law Act, presc...
Exactly the same legal rights and obligations as a heterosexual de facto couple or married people under the Family Law Act....
Yes. There is no requirement to involve the Department of Human Services in your child support arrangements but until an assessment is in place, the Department cannot help enforce late payments. You can make a private Child Support Agreement provi...
Yes. There is a review process within the Department of Human Services. If you disagree with a decision you can appeal to the Administrative Appeals Tribunal. Appeals from the Administrative Appeals Tribunal can be heard by the Federal Circuit Cou...
Child support will be different in each case. The amount is calculated by way of a formula by the Department of Human Services, based on each parent’s income, less a self-support amount, the number of and ages of the children and the amount of nigh...
If the threats are credible, you should seek urgent legal advice and obtain an order to place the child’s name on the Airport Watch List. This will prevent the child from leaving the Commonwealth of Australia until such time as parenting orders are...
Before taking the children to live interstate, overseas or even significantly out of the local area (if it makes it substantially more difficult for the other parent to spend regular time with the children) it is essential to consult with the other p...
The Court must always consider what is in the child’s best interest before making a parenting order. The parent’s interests are secondary to the child’s best interest. In determining what is in a child’s best interest there are a number o...
If there is agreement between the parents about who the children will live with and the amount of time the children will spend with the other parent, this can be entered into a Parenting Plan which is a written agreement. If you require legally enfor...
It is compulsory to attend Court if there are children of the marriage under the age of 18. You do not need to attend if you are the respondent in a sole Application unless you disagree with the Application or if it is a joint Divorce Application....
Yes. It is a separate process. You may still require separate applications or orders settling financial and parenting matters. Following a divorce you have only 12 months from the date of the Certificate of Divorce to finalise your property matter...
Yes. Apply for a divorce online is a simple process and has the benefit of allowing you to choose the hearing date. You can register on the Commonwealth Courts Portal to file your Application for Divorce using...
Provided it is not complicated many people choose to represent themselves in an application for divorce. We suggest you obtain legal advice in the event you anticipate problems contacting or serving your spouse with the application, if there has been...
No. Jury trials are not held in the Family Law jurisdiction. See Family Law case examples on the Family Law blogsite...
After divorce or separation, it is advisable to have a written agreement concerning who the child will live with and what time they will spend with the other parent. In Australia, a written agreement is called a Parenting Plan. The Parenting Pla...
Family court litigation is expensive because of a number of factors: (a) Firstly the process – the parties are required to participate in alternative dispute resolution and comply with the Court Rules requiring preparation of documents and evide...
Many divorcing couples are hesitant when asked to give their financial documents to their ex-partner. This can include tax returns and many bank account statements. The reason behind it is the requirement for "Full and Frank Disclosure...
In divorce and separation, parents often wonder what they need to do before commencing Court proceedings in respect of children and child custody. Prior to filing an application for parenting orders in the Federal Magistrates Court of A...
Most commonly known as a prenuptial agreement or prenup there are now six types of “financial agreements” for couples. These are also called “binding financial agreements” . These include: Different Type...
Are you the one leaving your house in a separation? If you are leaving your house, either planned or in circumstances of urgency, such as being a victim of domestic violence, be sure that you ta...
A will gifting property to a spouse is void upon divorce. Until the time of divorce, however the will is valid. It is important for separating couples to change their wills following an adjustment of property interests. See Family Law case e...
The Federal Magistrates Court of Australia was established in 1999 to help relieve the overburden on the Family Court of Australia to provide a forum to hear less complex matters. The Federal Magistrates Court deals exclusively with divorce applic...
All property of the parties is considered “marital property” even if a particular asset is legally in one party’s name or was owned by them prior to marriage. The Court may consider each party’s contribution to the marital property. The e...
Family violence is any physical violence, threats, emotional and psychological abuse and includes damaging property. Violent behaviour is unlawful and in addition to protections and the family law, there may be protections given under the crimina...
From 1975, the Divorce Law in Australia has stipulated only one ground for a Decree of Dissolution on Marriage – that is, that the marriage has broken down irretrievably [s48(1) Family Law Act FLA]. Irretrievabl...
In Australian family law, an ex parte order is made in circumstances of urgency where the other party has not attended at Court. It is possible to get an ex-parte interim order for parenting in circumstances where not having an urgent order may place...
A divorce makes no difference to unresolved parenting disputes. Property proceedings must be filed in court within 12 months of the date of divorce. See Family Law case examples on the Family Law...
What is Shared Parental Responsibility? Australia’s Shared Parental Responsibility, as defined by the Family Law Act 1975, requires both parents to make decisions regarding issues affecting the long-...
A Prenuptial agreement is a legally binding financial agreement. Also know as a prenup agreement, it is a way of recording what each person is bringing into a relationship - whether marriage or defacto. It is not created in expectation of a divorce....
In Australia, an agreement or orders can be modified by consent of both parties. In the circumstances where a Court has made orders for parenting, the orders can be amended by an Application for Consent Orders, annexing the modified proposed order...
If you have a reasonable fear that your ex-spouse will take the children to live interstate or overseas without reference to you, then you must immediately seek orders restraining the other parent from taking the children outside of the defined...
The Australian Family Law Court is not concerned with the fact that either parent has re-partnered or dated another person following separation or divorce. The paramount principle applied to all decisions concerning children in the Family Court is wh...
In the event of the death of one of the parties to Family Law property proceedings, the deceased person’s estate may continue the proceedings. It will be necessary to apply to the court for procedural orders to allow this to occur. See Fam...
The Court uses a four-step process when altering property interests between spouses. Step 1 is to identify and value the property. Step 2 is to consider the contributions (financial and non-financial) to the marital assets. Step 3 i...
Financial and non-financial contributions to the acquisition, conservation and improvement of property are to be considered by the Court, along with the additional consideration of the age and state of health of the parties, the income, property and...
Yes. The Court may order that one or both parties be restrained from selling or otherwise dissipating a marital asset. It is possible to obtain an injunction against third parties regarding marital property in limited circumstances. See Fa...
“Fair market value” is a good starting point for most valuations. A valuation from a registered valuer is recommended for real property and business interests. The date to value property is generally at the date of hearing rather than the date of...
Section 60C (c) of the Australian Family Law Act 1975 defines how the Court determines what is in a child’s best interests. The primary considerations in child custody are the benefit to the child of having a meaningful relationship with both...
No. Unlike other jurisdictions, in family law the general rule is that each party to the proceedings bears their own costs. An application for costs will be considered at the discretion of the Court based on factors such as: 1. the...
Yes but you must file an application for property adjustment with the Court within 12 months of the date of divorce. In Australia, an application cannot be filed later than 12 months following divorce without leave of the Court. See F...
No. Children should not be used as a bargaining chip for issues between the parents. The paramount consideration in Australian Family Law is what is in the best interests of the child. Children have a right to a meaningful relationship...
Generally, no. Particularly when the other party has made substantial non-financial contributions by way of caring for children and the home. Superior earnings are not a ‘special contribution’....
There is no legal requirement to end a marriage on separation. If one party makes an Application for Divorce however and provided that all other elements of the divorce are met, namely: Jurisdiction Separated over 12 mon...
This depends on the Application. Generally children’s matters get priority at the Family Court and the Federal Circuit Court over property matters. Of those cases, priority will be given to those with the most serious risk. It also depends on the i...
It is advisable to seek legal advice prior to making any application in either the Federal Magistrates Court of Australia or the Family Court of Australia. A solicitor will be able to present your argument before the court on your behalf. S...
Separation is primarily a question of the facts and secondarily a question of law. When you conduct yourself in a way that demonstrates to the other party as well as to the rest of the world that you are no longer in a spousal relationship (eg....
Do grandparents have the right to visit and see their grandchildren when their children divorce or separate? The principle guiding the Family Law Act of 1975, remains as ‘what is in the best interests of the child...
Looking for advice on separation or divorce? Streeterlaw's free Parting Ways: Divorce and Separation is a guide to your rights and responsibilities. The booklet comes with a series of YouTube vid...
No. Every child custody matter is determined by the relevant facts of the matter. In some instances, where the child is very young and the mother has been the infant’s primary caregiver, it is likely the Court would make an order consist...
In Australian family law, grandparents do not have an automatic right to spend time with their grandchildren. This situation can arise due to the divorce or separation of their...
No. Except in exceptional circumstances, no child will give evidence in court. In some cases, the child may have their own lawyer appointed to them by the Court to speak on their behalf. See Family Law case examples on the...
The term “custody” and “residence” of children is no longer used in Australian Family Law and has been replaced with the phrase “lives with”. “Child custody” is however still the most commonly understood term used. In a divorce o...
Yes. An issue often raised in disputed children’s cases is whether or not there is an “unacceptable risk of abuse” to the child if time the child spends with one of the parents is not supervised. This language comes from the High Court Decision...
Yes but only with a splitting order by the Court made pursuant to S90MT of the Australian Family Law Act 1975. It is possible to split superannuation between the parties in most cases. See Family Law case examples on the...
Superannuation is generally treated as property, although a different form of property, by the Court. Superannuation interests can be split between the parties in certain circumstances although cannot generally be taken as cash prior to the age of re...
It depends on the circumstances. As asset division is determined largely on the basis of contributions, the other party may have made ongoing contributions to that asset during the course of the relationship. The initial contributions are generally g...
A 2014 case in the Family Court of Australia has determined the need for a de facto couple to clearly communicate with one another when their relationship ends. Cadman & Hallett [2014] FamCAFC 142 (11 August 2014) involved a gay coupl...
The Australian family law has now changed in regard to the views of children in parenting matters. It is no longer the case that children over the age of 14 get to decide who they will live with after his or her parents divorce or separate. The la...
Yes. The Court may make a Parenting Order for a child to live with or spend time with a person who is not that child’s parent. It is essential, however, in child custody to consider what is in the child’s best interests before making such an orde...
In the event that the other parent is also on that child’s birth certificate, the consent of both parents is required. See Family Law case examples here....
In most divorce and separation cases, the children will continue to live with the primary caregiver. There is, however, no legal entitlement for this to occur. The Australian Family Law Act requires the Court to consider shared care of the childre...
Yes - No - Maybe. It is completely up to you! Subject to any other personal restrictions or other religious rules. You need to be separated for a year before being formally divorced and granted a divorce order by the Family Court. The key element...
The Application for Divorce is now exclusively an online Application via the Commonwealth Court Portal and is designed to simplify the process. The Application can be made by one spouse alone or jointly. The benefit of a joint Application is that...
The costs involved in applying for divorce usually consist of the following: Filling Fee: Payable to the Federal Circuit Court of Australia. ...
Commercial Dispute Resolution FAQs
Company Liquidation refers to when a company's assets are liquidated - that is, redistributed or sold. Voluntary liquidation of a company starts when the directors pass a resolution. If the business is still operating when the re...
Voluntary Administration is a legal way of giving a business an opportunity to continue to trade when facing insolvency. Trading insolvently – not being able to pay debts as and when they are due ...
Insolvent trading is a criminal offence in Australia. This is where a business incurs debts knowing they will not be able to pay these debts as and when they fall due. Insolvency is a serious issue. To knowingly trade insolvently is ill...
A Statutory Demand is a demand made under 459E of the Corporations Act. This document is not issued by the Court. Failure to comply with a Statutory Demand or to apply to the Court to set it aside, will result in the company bein...
Are you prepared for a letter of demand to directors from the Australian Tax Office - 222AOE Notices? Directors may become personally liable for tax debts of their companies in which they are directors if they fail to comply with the terms of a S...
A Law Society Accredited Specialist is a lawyer with at least five years relevant practice in the specialist area of law. What is a commercial litigation attorney & What does a commercial litigator do?...
Insider trading occurs when a person takes advantage of information that is not public and gains a benefit in the trading of stocks or shares. See also Insider Trading blogposts...
At its essence, Fraud is theft by deception. Often it is an abuse (or use) of a relationship. Fraud is not limited to any particular jurisdict...
Debt Recovery FAQs
Receiving a Statutory Demand, whether in person or even through the mail, is something you cannot ignore. The Statutory Demand is a powerful document in Australia. Failure to respond to a Statutory Demand within 21 days will be in...
Difference between bankruptcy and insolvency At a conceptual level, Bankruptcy and Insolvency both mean the same thing. The technical legal definition of Bankruptcy and Insolvency varies between jur...
This is actually the second question we need to ask. The answer to it will depend on the answer to the most important first question. This question is "Does the debtor have funds to pay?"...
Deciding when to take legal action can be quite simple. It is when you want to FORCE the debtor to pay you what you are owed! The debt collection process will de...
Disputed Guardianship and Wills FAQs
The Executor of your legal will is an important responsibility. It can also be a stressful one. You should choose someone who you trust is likely to live longer than you will have th...
Probate is essentially the process by which the person named as the legal representative of the deceased person approaches the Supreme Court, as the highest authority in the land (of New South Wales) and requests that the court “prove” or appr...
There is an old saying "you get what you pay for". Free wills are no exception. Your last will and testament is your opportunity to make clear your intentions after your death. Some businesses will sell you a simple legal will kit or offer an online...
Absolutely yes. A document may have some value as “evidence” of intention but the requirements in New South Wales have strict provisions for witnessing of the signature of a legal will. We strongly recommend you obtain legal advice as...
The law relating to making legal wills is extremely technical. There is no prohibition against a last will and testament being handwritten providing certain other substantive, formal and technical aspects are attended to. We strongly recom...
The law in New South Wales provides for a “formula” to work out how your assets will be divided among your family and relatives. If you wish for your estate (what you own when you die) to be distributed in a different way, then you sho...
While preparing a will is seen as essential for anyone who owns property or possessions and has dependents, details and security of a person’s online accounts and profiles is oft...