FAQs

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Parenting after Separation
FAQs

Financial and Property Settlements
FAQs

Child
Support
FAQs

Dispute
Resolution
FAQs

Separation and Divorce
FAQs

Parenting after Separation

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My ex and I don’t agree on what’s best for our children. How does a Court work out what is best for them?

The law emphasises that when making parenting arrangements following a separation, the paramount consideration is what is in a child’s best interest. Section 60CC of the Family Law Act outlines the matters that are relevant. There are two cornerstone principles:-

  1. The benefit of the child of having a meaningful relationship with both parents; and
  2. The need to protect the child from physical or psychological harm.

If a parent represents a physical or psychological risk to a child, then the law prioritises the need to protect that child. 

Additional considerations under the Act in determining a child’s best interest are such matters as:

  1. The nature of the relationship of the child with each of the parents,
  2. The extent of the prior involvement of each parent in a child’s life;
  3. The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either parent;
  4. The practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis; and
  5. The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
  6. The children’s views, but those views must be weighted depending on the children’s ages and maturity.

Ensuring your children’s well being following separation is a huge part of any parent’s journey. Assisting you in better understanding how better to parent after separation and ensure your ongoing relationship with your children is an important part of what we do. If you need legal advice about parenting and child-related issues following a separation contact one of our family lawyers for advice.

What is meant by ‘parental responsibility’ for children and do I get to share it?

Parenting issues, from a legal perspective, have a number of different elements to them.

One is parental responsibility – the right to be involved in and make long term, major decisions about your children. 

The other is about the amount of time the children spend with each parent, now called residence and time arrangements.

Parental responsibility relates to decisions about children’s major long term issues pertaining to:

  •         The names by which the children are known;
  •         Their medical care and management;
  •         Their education;
  •         Their religious education and cultural upbringing;
  •         Where they live.

In the absence of a court order specifically addressing parental responsibility, parents automatically have parental responsibility for their children, ie the pre-existing right to make decisions about those major long term issues. Those pre-existing rights are confirmed by section 61C of the Act, which states that each parent has parenting responsibility for a child under the age of 18 years, until such time as they are dislodged or varied by subsequent Court order. Parents can exercise their parental authority separately from each other as well as jointly with each other. This applies both when the parents are in a relationship and when they are separated.

Where the Court makes an order that parents have equal shared responsibility for their children, then parents are required to consult with each other and make a genuine effort to come to a joint decision about those long term issues.  Not surprisingly the law presumes that it is in the best interests of children for their parents to have equal shared parental responsibility, given the benefits to children of two involved and committed parents.  

However, the presumption for equal shared responsibility will not apply if there are reasonable grounds to believe that a parent (or associated partner) has engaged in child abuse or family violence. Other circumstances can also exist that will satisfy the court that equal shared parental responsibility would not be in the best interests of the child. For example, a court may find that in circumstances of significant ongoing parental conflict, it may be more appropriate for one of the parents to have sole parental responsibility.

Ensuring your children’s well being following separation is a huge part of any parent’s journey. Assisting you in better understanding how better to parent after separation and ensure your ongoing relationship with your children is an important part of what we do. If you need legal advice about parenting and child-related issues following a separation contact one of our family lawyers for advice

Am I, or the other parent of my children, allowed to move away from the area in which we currently live?

Whether a parent is allowed to relocate with a child to another town, state or country is often a very difficult problem. Disputes about whether a relocation can proceed are determined through the same framework as other parenting disputes ie which proposal – to relocate or not – is in the child’s best interests.  We discuss the broader considerations in other FAQs about parenting. But when it comes to relocation cases, answering that apparently simple question in these complex factual scenarios is often finely balanced and almost always complex. Some of the relevant considerations are:

  • Is it better for them to be permitted to move with one parent, and what sort of relationship and time will they then be able to spend with the other parent?
  • How will their lives be affected, and what will the impact be on them? 

Is it better for them to be cared for in their existing place of residence by their other parent and, if so, will the first parent still move or what kind of relationship and amount of time will the children then be able to spend with the parent proposing to move?Can the relocating parent promote a meaningful relationship with the other parent, especially in circumstances where a more taxing long distance relationship is involved.  

    The answers to these, and more questions, depend on a vast array of factors. These include the individuals involved; the children’s ages; where it is proposed the children move to; what services and facilities are available in that place compared to their current home; what advantages exist for the parent proposing to move there and how that will impact on that parent’s ability to care for the children, including what sort of life the children will be provided in that event; the children’s access to the other parent if they are permitted to move; the ability of the other parent to also move them etc

    There is a lot that rides on relocation, for everybody involved. Getting early and expert advice, whether you are contemplating a relocation or your children’s other parent is, is absolutely essential and if you are facing this situation we encourage you to contact Helen or one of her team now.

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    Do parents share ‘parental responsibility'?

    In the absence of a court order specifically addressing parental responsibility, parents automatically have parental responsibility for their children, ie the pre-existing right to make decisions about those major long term issues. Those pre-existing rights are confirmed by section 61C of the Act, which states that each parent has parenting responsibility for a child under the age of 18 years, until such time as they are dislodged or varied by subsequent Court order. Parents can exercise their parental authority separately from each other as well as jointly with each other. This applies both when the parents are in a relationship and when they are separated.

     Where the Court makes an order that parents have equal shared responsibility for their children, then parents are required to consult with each other and make a genuine effort to come to a joint decision about those long term issues.  Not surprisingly the law presumes that it is in the best interests of children for their parents to have equal shared parental responsibility, given the benefits to children of two involved and committed parents.  

    However, the presumption for equal shared responsibility will not apply if there are reasonable grounds to believe that a parent (or associated partner) has engaged in child abuse or family violence. Other circumstances can also exist that will satisfy the court that equal shared parental responsibility would not be in the best interests of the child. For example, a court may find that in circumstances of significant ongoing parental conflict, it may be more appropriate for one of the parents to have sole parental responsibility.

    Ensuring your children’s well being following separation is a huge part of any parent’s journey. Assisting you in better understanding how better to parent after separation and ensure your ongoing relationship with your children is an important part of what we do. If you need legal advice about parenting and child-related issues following a separation contact one of our family lawyers for advice.

    Relocating - am I, or the other parent of my children, allowed to move away from the area in which we currently live?

    Whether a parent is allowed to relocate with a child to another town, state or country is often a very difficult problem. Disputes about whether a relocation can proceed are determined through the same framework as other parenting disputes ie which proposal – to relocate or not – is in the child’s best interests.  We discuss the broader considerations in other FAQs about parenting. But when it comes to relocation cases, answering that apparently simple question in these complex factual scenarios is often finely balanced and almost always complex. Some of the relevant considerations are:

    • Is it better for them to be permitted to move with one parent, and what sort of relationship and time will they then be able to spend with the other parent?
    • How will their lives be affected, and what will the impact be on them? 
    • Is it better for them to be cared for in their existing place of residence by their other parent and, if so, will the first parent still move or what kind of relationship and amount of time will the children then be able to spend with the parent proposing to move?
    • can the relocating parent promote a meaningful relationship with the other parent, especially in circumstances where a more taxing long distance relationship is involved?

    The answers to these, and more questions, depend on a vast array of factors. These include the individuals involved; the children’s ages; where it is proposed the children move to; what services and facilities are available in that place compared to their current home; what advantages exist for the parent proposing to move there and how that will impact on that parent’s ability to care for the children, including what sort of life the children will be provided in that event; the children’s access to the other parent if they are permitted to move; the ability of the other parent to also move them etc

    There is a lot that rides on relocation, for everybody involved. Getting early and expert advice, whether you are contemplating a relocation or your children’s other parent is, is absolutely essential and if you are facing this situation we encourage you to contact Helen or one of her team now.

    We have parenting orders in place, but my ex partner has breached them. What should I do?

    The law expects orders to be followed. There are, however, various situations where this doesn’t occur. Sometimes those issues can be resolved by some sensible discussions and compromise.  Other times, it requires further action.  Ordinarily, where you and your ex partner cannot reach an agreement following a breach of Orders, the wronged party will have to file an enforcement application with the Court together with an affidavit explaining the circumstances of the breach.

    The content of the application and of the affidavit will vary on a case to case basis, depending on the orders that have been breached, the circumstances of the breach and the appropriate steps necessary to fix that breach. The law on enforcement orders is technical and complex and you should seek legal advice before commencing proceedings to enforce a court order.

    If your application for enforcement is successful the Court will often order the other party to pay your legal costs.

    If you are experiencing difficulties with adherence to Court orders and need legal advice, contact our expert family lawyers here who can assist you.

    Financial and Property Settlements

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    My ex and I have come to a verbal agreement about a financial settlement. Is that enough or should it be formalised?

    Firstly, well done on reaching an agreement!

    Once ex-spouses agree on financial issues, following separation, it is extremely important those agreements are appropriately formalised. 

    Agreements about financial issues must always be formalised.  There are significant risks in failing to do so, even if there are few assets to divide. It is essential insurance for long term protection of your financial position.

    Agreements about financial issues can be formalised in a few different ways. The most common way is by Consent Orders. Consent Orders are made by the Court, but – as the name suggests – with both spouses’ consent. They are relatively cheap and quick to achieve.  Consent orders have the same force and effect as an order made after a contested hearing.

    Agreements about financial issues can also be formalised by a document called a “Financial Agreement”.  

    Financial Agreements can have many different uses and roles to play in regulating and formalising the financial relationship of spouses. They can be used to formalise a property settlement and spousal maintenance agreement after separation. But they can also be entered while a relationship is “in tact”, and even prior to marriage. These Financial Agreements are what are known colloquially as “Pre-Nups”.

    After a property settlement has been formalised it can only be revisited or reopened by the Court for very limited reasons. These include fraud and non disclosure of relevant information. There are other grounds to reopen a property settlement but it’s a technical area, that you will need detailed advice about.

    Ensuring you have formalised the agreement you have reached with your spouse or ex-spouse is an extremely important step to protecting yourself and your financial future. Never hesitate to get advice and assistance to ensure you get it right. We are happy to spend some time working through your situation, to see if our way of working is your way of working and how to get started. You can look at the ‘Our First Meeting’ page on our website for additional information, or just pick up the phone.

    What is taken into account in coming to a property settlement?

    The law aims to give you and your ex a clean financial break from each other following separation. This is generally achieved by way of a process called ‘property settlement’.

    Property settlements can be complex and there can be a lot of moving parts in reaching one. Once they are formalised with the Court they are very hard to undo, so it is vital that you get really good legal advice early on. Getting advice early on from a specialist in family law will help avoid disputes erupting, will simplify and guide you on how to reach agreement with your spouse, and once that agreement has been reached, that same adviser will capture and formalize it in a reliable and binding way. This will give you and your ex a secure base from which to move forward.

    For most people (but not necessarily everyone) there will be four steps to achieving a property settlement 

    1. Working out what you own, collectively;
    2. Working out how you each contributed, and what impact those contributions have had;
    3. Working out what each you need in future and what impact those needs will have;
    4. At this point, taking the above steps into account, decisions must be made about who will retain which particular assets, liabilities and resources, which property should be sold and any payments which are necessary by one party to the other to achieve the overall final result. In this stage, the law reviews the outcome overall, to ensure it is fair and sensible.

    How do we work out what we own, collectively?

    Working out the matrimonial ‘Balance Sheet’ is about listing everything you own and owe ie your assets, liabilities, superannuation entitlements and financial resources. It doesn’t matter whether you own things in your joint or separate names or through a company or trust. Generally everything is part of the matrimonial ‘Balance Sheet’. The value to be given to each asset, liability and financial resource is the value as at the date of settlement (or the date of hearing, if a final hearing is required), not the date you separate.  Therefore changes in what each party owns or owes following separation and/or divorce won’t necessarily be treated differently to those assets and liabilities accumulated prior to separation.  That said there can be some exceptions to this usual rule, but these need to be considered carefully on a case by case basis, on their own facts.

    What does the law mean by ‘contributions’ ?

    The contributions that are taken into account are financial contributions (such as who owned what when you started living together; who earned what during the relationship; and who received what as things went along) as well as non-financial contributions (such as who renovated, invested, maintained etc). 

    But who brought in the money is not all that matters.  

    Contributions as a parent and homemaker are usually just as important.

    The law aims to take account of any major differences between the contributions that have been made by each party to a marriage or defacto relationship, by making allowances in favour the contributing party when dividing the existing assets. It is not an exact science, nor by any means a precise mathematical approach. Individual Judges and lawyers regularly reach somewhat different conclusions based upon the same set of facts.

    This is why getting expert advice from experienced family lawyers is so important. If you are in need of advice, and the clarity and peace of mind that comes with it, then get in touch with one of our lawyers.

    What are ‘future needs’?

    In order to ensure a property settlement is fair to all parties, the law also considers each person’s “future needs”.

    The parties’ comparative positions are considered using a wide range of factors. These factors include: 

    • Each spouse’s age and their states of health;
    • Each spouse’s capacity to earn an income, both now and in the future, (for example once children have grown and/or retraining has been completed);
    • Who has care of children of the marriage under 18 and the child support that is being paid for those children;
    • The length of the relationship, contributions made to or the impact on the career of the other party and a standard of living that is reasonable, considering the standard of living enjoyed during the relationship;
    • The property the party will have as result of the property settlement;
    • Whether either party has the responsibility to support himself/herself and other children, especially young children;
    • Whether either party has the responsibility to support other person(s), such as an aged parent or a new dependant partner;
    • In some circumstances the law also considers a person’s eligibility to receive government support or pensions, or a person’s other financial resources. But this is a more complex area. If it applies to you make sure you get good legal advice that takes it into account. 

    Again, these adjustments are not an exact science, nor a precise mathematical approach and individual Judges and lawyers may reach different conclusions based upon the same set of facts.

    Once there has been an assessment of future needs, it is combined with the assessment of contributions from the previous step, to give an overall result.

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    Are there time limits to starting a financial claim?

    There are time limits for enlisting the help of the Court in making a property settlement or claim for spousal maintenance. If agreement is reached, that agreement should be formally lodged with the Court no later than 12 months after your divorce becomes final. If you were in a de facto relationship, then you have 2 years from the date you separated. 

    If you and your spouse can’t reach agreement within those time limits, then formal proceedings to enlist the Court process must be started before the cut off point is reached. Following the cut-off point, special permission must be obtained from the Court and an explanation provided for the delay. Gaining permission is not uncommon but is not guaranteed and comes with extra hassle, cost and risk. Meeting the deadlines is therefore important. Don’t delay in getting the advice you need. You’ll be glad you did.

    Am I entitled to some of my ex’s superannuation as part of a property settlement?

    The superannuation entitlements held by each spouse can be adjusted as part of the property settlement process. The law’s assessment of whether and how superannuation should be adjusted is usually undertaken as part of a property settlement, and using the same principles. But the superannuation pool is assessed separately to the non-superannuation assets, given that superannuation is subject to different restrictions and considerations (such as the time at which it can be accessed and how it is taxed) compared to other types of property.

    If you need expert advice and assistance with a property settlement including a super split, contact one of the lawyers at Ede Family Law to find out where you stand.

    What is spousal maintenance?

    Spousal maintenance is financial support paid by one spouse to their former spouse. A spouse may be entitled to spousal maintenance in circumstances where he/she is unable to adequately support themselves. The other spouse must also be shown to have sufficient income or resources to be able to afford the support needed by the claiming spouse. 

    The reasons why a spouse can claim support can be very varied and depend on the facts of each individual case. Those reasons may be related to age, health, and the standard of living enjoyed prior to separation. They will also often arise from having the care of children under 18 years, old age or physical or mental incapacity. 

    In essence, the Court has to consider the totality of each of the parties’ circumstances in respect to each of their incomes, assets, liabilities and expenses to arrive at a just and equitable outcome. 

    A claim for spousal maintenance can be made within 12 months of a divorce order becoming final, but only with the permission of the Court thereafter, if the applicant can demonstrate the required reasons why such an order is required and still appropriate. 

    If any of the above is of interest to you or pertains to your circumstances we can assist. You can contact us here.

    What is an injunction and how is it different to a caveat?

    An injunction is an order of the Court which either stops a person from doing a certain act, or requires a person to do a certain act. It can also be known as a restraining order.

    In financial proceedings, the Court can grant an injunction restraining a party from selling or mortgaging real property or other assets, or using business assets in a manner not consistent with its trading purposes. The Court may use this power if  there is a risk that one party will dispose of those assets to prevent the other spouse from receiving their fair share of the assets through the property settlement.

    Some of the issues to be considered in financial proceedings in order to successfully apply for an injunction include:

    1. the scope and merits of the applicant party’s claim for a final property settlement;
    2. what risk there is of the disposal of the asset (Waugh & Waugh [2000] FamCA 1183);
    3. whether that disposal is likely or intended to defeat or prejudice any anticipated order in favour of the applicant party;
    4. ensuring that the injunctions sought do not impose any further restriction then is necessary to achieve the protection of the applicant party’s interests

    A caveat is a type of statutory injunction. It is registered on the title of real property and prevents the registration of particular dealings (such as a transfer or mortgage to a third party) relating to that property. In family law situations, it can be vital to combine caveats with injunctions made by the Court, to effectively protect one spouse’s interests, until a property settlement is finalised. There are, however, strict rules about when caveats can be maintained on title, and damaging consequences if these rules are not followed. 

    Applications involving injunctions and caveats are often complex and time sensitive. They need expert assessment and advice. If any of the above pertains to your circumstances or is of interest or concern to you, work with the experts at Ede Family Law to ensure your interests are effectively and fully protected. You can contact one of our lawyers here.

    I was in a de facto relationship. Do I need to do a property settlement with my ex?

    If a de facto relationship, whether hetero or same sex, meets one or more of the following thresholds then it is recognised and treated the same as a married relationship, when it comes to a financial settlement (which includes spousal maintenance):-

    1. if the couple has a child together;
    2. if the couple have been living together, as de facto partners for two or more years;
    3. if the couple have registered their de facto relationship;
    4. if a member of the couple has made significant contributions to the other. What qualifies as a significant contribution very much depends on the particular circumstances. If you are uncertain where you stand you should seek legal advice from one of our lawyers. A simple example may be if you pay a significant sum towards the renovation of your former partner’s property or help to pay off their mortgage. But there are many situations that will qualify as ‘significant contributions’ so ensure you get good advice about where you stand.

    The law recognises that a de facto relationship can exist even if one party to the relationship is legally married to someone else or in another de facto relationship. While married couples simply need to show their marriage certificate to prove the existence or the length of their marriage, de facto couples can also be faced with the challenge of proving they were in a de facto relationship, if the other party disputes it. 

    De facto applicants have two years after the end of their relationship to formalise their financial agreement, or, if unable to reach agreement, to initiate Court proceedings.  

    If any of the above is of interest to you or pertains to your circumstances, Helen and her team can assist you in navigating these discussions with your ex or taking the steps necessary to protect your interests.

    I have property orders but my ex-partner won’t comply. What do I do?

    As with parenting orders, the law expects financial and property orders to be followed. There can be a vast array of reasons for why this doesn’t occur.  Some reasons may be valid, at least in certain circumstances and for certain periods of time. Some are simply a challenge, to see if the party (who is owed money under the Court orders)  will take the necessary action to enforce the orders. 

    The law offers a variety of processes to address enforcement issues regarding financial issues. Some of those processes include:-

    • obtaining information from the defaulting party about their financial circumstances;
    • obtaining a warrant, authorising the bailiff to seize real and personal property of the defaulting party for sale or transfer;
    • notices that bind employers or other third parties to redirect sums owed to the defaulting party, in order to satisfy the court orders. 

    If you have the benefit of Court orders that have not been complied with seek urgent and expert legal advice for what your best options are.

    Child Support

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    What is child support and how is it worked out?

    Every parent has an obligation to financially support their children to the extent they are able. Sometimes this will result in one parent paying money to the other parent, to help share that financial burden more equitably. These payments are known as child support.

    To provide structure and certainty about children’s financial support following separation, child support paid by parents in Australia can be agreed, but can also be determined by a child support assessment, also known as an ‘administrative assessment’, undertaken by Services Australia.

    How does a child support assessment work?

    A child support assessment is determined by a formula that is set out in the Child Support (Assessment) Act. A parent must apply to Services Australia – Child Support (the Agency) to obtain an administrative assessment. The application process is straightforward and can be initiated over the telephone or online. 

    The assessment is designed to share common expenses of raising children, being housing, energy costs, food, clothing and footwear, household goods and services, child care, health services, transport, leisure and personal care. The assessment acknowledges that preschool children and adolescents are the most expensive to support and the amount payable adapts with their ages.  

    The formula for child support, primarily,  considers the following:-

    1. Each parents’ respective taxable incomes;
    2. The overnight care arrangements for the children;
    3. The costs of caring for the children, depending on their ages. 

    Ordinarily, under an administrative assessment, the paying parent is not required to meet any of the children’s additional costs, such as public school school fees, health care costs or extra curricular costs, in addition to the regular sum paid.  However, there are a number of specific circumstances in which the Agency has the power to vary the administrative assessment, to take additional costs into account. 

    Services Australia offers an on-line Child Support Estimator that you can use. This will give you an early indication of what child support obligations will apply to your situation. You can access that Estimator here.

    How often are administrative assessments updated?

    Assessments are updated every 15 months or as soon as the parents lodge their tax returns. Child support under the assessment applies until a child turns 18 or completes his/her secondary education, whichever occurs later. But if your child is due to turn 18 while still at school it is very important to contact the Agency  before their 18th birthday to extend the assessment to the end of their school year.

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    How is child support paid?

    Child support can be paid in a number of ways.

    For periodic support (ie cash paid by one parent to the other):-

    1.  privately between the parents;
    2. through the Agency. The parent entitled to receive payment can request the Agency to collect on their behalf if he/she so chooses. Such a request will ordinarily be followed, even if the paying parent prefers not to involve the Agency.  The Agency can also collect arrears in payment, provided they are not more than 3 months old, and enforce the assessment. 
    3. the Agency can automatically deduct child support payments from a paying parent’s wages (with that parent’s consent).

    For non-periodic support (such as to a private health insurance provider or school), directly to a third party, as those expenses are due for payment.

    The Agency also has very wide powers to enforce payment, including the ability to garnish wages or bank accounts, and to seize tax refunds.

    If any of the above is of interest to you or pertains to your circumstances the family lawyers at Ede Family Law can assist. You can contact us here.

    What is a Binding Child Support Agreement?

    Parents are able to reach their own agreement about child support appropriate for their family’s circumstances, rather than adhering to the child support assessed by the administrative assessment process. Many families have needs that fall outside what can be appropriately managed by an administrative assessment. One such situation is where there are shared care arrangements for children in place. Parents in these situations often need to negotiate their own agreement about child support. 

    There are a number of ways to formalise those agreements, and a Binding Child Support Agreement is one of them.

    A Binding Child Support Agreement (BCSA) is intended to provide a high level of certainty and finality about child support arrangements for parents. If the Agreement is properly entered into, then it acts as a substitute for the parties’ rights and obligations under the administrative assessment process.  

    A BCSA may also include agreements about how to meet the other costs of raising children (such as school fees, health care costs and extracurricular costs) which may otherwise not be properly reflected by the administrative assessment. BCSAs can also include lump sum payments (including the transfer of property) to be credited as child support instead of regular cash payments.

    When a BCSA is registered with the Agency, the periodic child support payments (ie those parts where a party is required to pay a regular cash amount) can be enforced by the Agency at no cost to you.

    Dispute Resolution

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    What is Family Dispute Resolution or FDR?

    Family Dispute Resolution (FDR) is a special type of mediation, developed to help separating families to come to their own agreements. During FDR families will discuss their children’s needs and the parenting issues that are in dispute. Parents will be supported to identify their children’s central needs and assisted to consider different options, while being encouraged to focus on the needs of their children.

    FDR is successful in helping parents come to agreement. Recognising its success and its benefits, the Court requires parents to undertake it prior to going to Court with a parenting dispute. There are some exceptions to this requirement, but they are limited. If a parent starts Court proceedings without attempting FDR (when FDR is appropriate), the Court will refuse to progress the application until such time as FDR has been undertaken.

    If FDR is not successful, the FDR practitioner will issue what is known as a “s60 I certificate”, which must then be filed with the documents necessary to start Court proceedings.

    There are many excellent available FDR services, both offered by private practitioners and not for profit organisations.

    It is important, when getting to an agreement, that your situation is paired with the right service. 

    Ede Family Law can provide advice and recommendations that are tailored to your needs about FDR.

    But if you would like to explore your options with not for profit organisations, we recommend that you do some reading on the following sites:

    Family Relationship Centres www.familyrelationships.gov.au/home

    Relationships Australia www.relationships.org.au

    CatholicCare relationship services www.catholiccare.org

    Unifam Counselling and Mediation www.unifamcounselling.org

    What is mediation and how does it work?

    Mediation is a process by which a neutral third party called a mediator helps people in conflict negotiate a mutually acceptable agreement, whether about financial or parenting issues. The parties to the mediation control the outcome and agreement is voluntary. If all the parties do not agree to a result, the dispute remains unresolved. In family law situations, parenting and/or financial disputes can be mediated. 

    A mediator facilitates communication, promotes understanding, assists the parties to identify their needs and interests, and uses creative problem solving techniques to enable the parties to reach their own agreement.   Matching the right mediator both to the issues and the parties involved is an important step towards its success.

    Parties can all meet in one room, but how things are structured is adaptable to ensure everyone feels safe and secure. The costs of the mediator are generally shared between the parties but this too can be tailored to match the circumstances.

    Participants can have their lawyers present during the mediation, assisting them with advice and decision making necessary in the mediation process. Good lawyers will help explore options for resolution and explain associated risks, whether those risks come from the agreement being considered or from the failure to reach an agreement. 

    Mediations are confidential. This means that anything said during a mediation cannot be used in Court. Offers given or not given can also not be discussed with the Court. 

    Preparation for mediations is important and involves obtaining appropriate disclosure, preparing a balance sheet detailing the family’s financial circumstances and ensuring that everyone understands both what the process will look like, and what is relevant to it.

    What is collaborative practice in family law ?

    Collaborative Practice is a way of settling disputes outside of courts. Participants are given legal, financial and emotional support by trained professionals to maintain important relationships while they explore negotiated solutions. It is used extensively in family law situations but is also used in family provision claims, employment and commercial disputes where important relationships are at stake. Participants remain in control of the process and the solutions that they decide to pursue. They work in conjunction with the professional support and advice that is needed to address the issues they, and their families, face. For example, if one spouse needs to better understand finances, budgeting or what income they need to support themselves, advice can be sought from a financial planner to work through these issues. If the children’s voices need to be heard or better understood, a child consultant can work with the family to bring these perspectives into the process.

    Participants and their collaborative lawyers all enter into binding agreements to resolve the dispute without going to Court. While the participants are able to withdraw from the process, if they so choose, they must then work with new lawyers and cannot be represented in subsequent Court processes by their collaborative lawyers. This ensures the best chances of the collaborative process successfully reaching a negotiated outcome that everyone can live with. 

    The process occurs through a short series of meetings between all participants and the advisers necessary to each stage. Agreements reached through collaboration are formalised through Court orders made by consent or other binding agreements and are just as robust as agreements reached through other processes.

    For more detail about how collaboration works and whether it may be right for you and your partner, read more about it on 

    https://collabprofessionalsnsw.org.au/about-collaborative-practice/ and https://www.collaborativeaustralia.com.au/family-law/

    Helen Ede has advanced training and experience in collaborative practice. If you would like to know more or are interested in undertaking a collaborative process to resolve matters associated with your separation, please contact Helen here.

    What is arbitration?

    Arbitration is a similar approach to the more traditional Court process, when resolving financial disputes arising from relationship change. While there are a range of distinctions from the more familiar Court process, the primary distinction is that the parties to the financial dispute agree on the appointment of an independent arbitrator (usually a senior member of the legal profession), to hear the evidence and submissions pertinent to their case and make the determination necessary to decide the dispute. By so doing and given the lengthy delays in the Court system, the time it takes to achieve a determination is greatly reduced, with numerous knock on benefits.

    Arbitrators are experienced legal practitioners and receive special training in arbitration. Arbitrators must be accredited by AIFLAM to be able to conduct family law arbitrations. Financial, but not parenting disputes, can be resolved through arbitration.

    Following the arbitration the arbitral award can be registered and it will then have the equivalent force and effect of Orders made by the Court.

    Arbitration can significantly reduce the delay and much of the cost and prolonged uncertainty that accompanies the Court process, and is a worthy option to be considered where people are unable to otherwise reach agreement.  There are however limitations and risks associated with the process of which one must be aware. If you would like more information about arbitration and whether it may be suitable for your circumstances, get in touch with one of our family lawyers for more information and assistance.

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    What is parenting coordination?

    Parenting coordination is a child focused service that can be very beneficial where there continues to be conflict, post separation, between parents.  Parenting coordination can assist parents to resolve day to day disputes and to uphold court orders without the need to return to court to resolve the issues.

    Does my family need a parenting coordinator?

    Even after final orders are made, parents may find they disagree with each other about seemingly small issues such as bedtime or extracurriculars but also about more major issues such as choice of school or religious education. Conflict could also arise in relation to the parenting orders themselves and the parents’ adherence to the orders, or the way orders are to be interpreted.

    How does parenting coordination work?

    Parenting coordinators are professionally trained practitioners available at short notice to meet with parents and discuss the issues. The cost of engaging a parenting coordinator can range from $500 to $600 per hour and is shared between the parents.

    Some of the things a parenting coordinator can help your family with are:

    • Coach parents in post-separation communications strategies, conflict resolution and anger management, so the children’s arrangements operate more smoothly.
    •  Assist parents with the transition from being ex-partners to co-parents, increasing the likelihood of keeping two active parents in the child’s life and building enduring strategies to meet custody and event commitments
    •  Mediate ongoing disagreements and conflict in order to uphold Court orders

    Children benefit from parenting coordination as it promotes healthy relationships with both parents, reduces their stress in transitioning between homes and promptly resolving issues that may arise about them. It also helps to diminish any conflict they feel in their loyalties to each parent, allowing children to adjust more effectively to life post separation and post litigation.

    Separation and Divorce

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    I have separated from my ex - how do I get a divorce?

    To get a divorce, you must apply to the Federal Circuit and Family Court of Australia.  Applying for divorce is generally a straightforward process, separate and independent from the resolution of parenting and/or financial issues, including any court cases that might already be dealing with them.  It doesn’t matter to the law why the marriage has broken down, and the reasons for it coming to an end don’t impact on what property settlement is appropriate to your situation.

    What are the main considerations to make sure I get granted a divorce?

    The Divorce Application can be initiated (or filed) jointly by both spouses, or by one spouse alone. The Court needs to have information about the following matters in order to grant a divorce:

    1. Whether you or your spouse are Australian citizens and/or details about where you have lived, and for how long. 
    2. How long you’ve been married for. If your marriage was less than 2 years ago you will need to provide a counselling certificate or else evidence explaining why counselling would not be appropriate.
    3. That there has been an irretrievable breakdown of the marriage. The only way this can be demonstrated is to show that you have been separated for at least 12 months. Separation can be demonstrated by you both physically living in different places but you can also include any period of time you have been separated but still living under the one roof. In those circumstances, however, you must provide additional evidence from third parties to support that you and your spouse have been separated while still living together;
    4. When the application is filed solely by one party, that party has to notify the other party by serving a copy of the Divorce Application on them. Service can’t be done by the applying party handing the other party the application. Service also has to be confirmed by a sworn document called an affidavit; and
    5. Information showing that any children under the age of 18 years are being appropriately cared for and financially supported.
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    Do I have to go to Court for the divorce hearing?

    If you and your former spouse have filed a joint application, or if you don’t have any children of the marriage still under the age of 18, then you don’t have to attend Court. You can however, if you wish. If only one party has applied for the divorce and there are still children under the age of 18, then the applying party needs to attend Court for the divorce hearing.

    What happens after the Court hearing?

    If all the requirements are met, the Court will make an interim divorce order on the day of the hearing day. This interim order becomes final, one month and one day after the day of the hearing. Once a divorce order becomes final, the parties then have 12 months to commence property proceedings or to formally agree on a property settlement. If the 12 months have passed, and you need the Court’s help to achieve a property settlement with your ex then you will need special permission from the Court to proceed. You will need to give a good explanation for the delay. Gaining permission is not uncommon but is not guaranteed.

    There are divorce kits to help you with the Court process on the Court’s website. But if you would like help from an expert with any of the above we can assist you with the process for a fixed fee. You can contact us here for more information.

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