Family Law
Family law is the area of law that deals with family matters like divorce, children and property. At Hanna Lawyers we understand that the breakdown of a family unit is one of the most difficult times for adults and children alike.
We believe, where possible, in taking a conciliatory approach to help mediate an appropriate outcome to any property and parenting issues between the parties, to help families transition through this difficult time quickly and with minimal expense. However, if pre action dispute resolution does not successfully resolve your family law dispute and Court is the only option, be assured our legal team is experienced in litigation. If you’re considering a separation, you can consult us prior to making any decisions and we will discuss your options, helping you make informed decisions.
We can provide assistance for a range of matters relating to family law and de facto relationships, including:
- Binding Financial Agreements (prenups)
- Divorce in Australia including preparing and serving divorce papers
- Spousal maintenance
- Property settlements
- Domestic and family violence and apprehended violence orders (AVOs)
- Legal representation at Family Court
- Parenting plans
- Parenting orders
We offer the first 30mins of the initial conference free to new clients, to allow them the opportunity to obtain some legal advice and to decide if they wish to proceed.
We can also assist you in applying for Legal Aid if you are eligible. Speak to us if you have concerns regarding your ability to pay your legal fees and we can discuss the possibility of accommodating your circumstances.
FAQ
Family dispute resolution (also known as mediation) is required before you can start court proceedings about children, unless your case is urgent or involves some exceptional factors such as family violence. The Court usually requires a certificate from a family dispute resolution practitioner before a case about children can go ahead.
Parents are able to enter into agreements about the arrangements for their children, known as parenting plans. A parenting plan must be in writing, signed and dated. It can be changed by another signed written agreement. Parenting plans create no legal obligations on either parent. However, the Court can consider what has been agreed in a parenting plan if you have later court proceedings dealing with parenting issues.
Consent Orders are agreements which can be made after negotiating with the other parent, usually with the help of a lawyer or dispute resolution service. A consent order is filed at, and approved by the Courts and is binding because the Courts can be asked to enforce it.
The Courts decide what parenting orders to make for a child on the basis of the best interests of that child. The law says that in determining the best interests of a child, the Court’s primary considerations
must be:
- the benefit to the child of having a meaningful relationship with both of the child’s parents; and
- the need to protect the child from physical or psychological harm, and from being subjected to, or exposed to, abuse, neglect or family violence. The Court must give greater weight to this consideration.
A parenting order can cover issues like:
- who a child will live with;
- what time a child will spend with a parent or other persons important to the child;
- how parental responsibility will be shared;
- how parents will communicate about a child; and
- how any disputes about what is set out in the orders will be resolved.
Parental responsibility means the duties parents have to their children and the important decisions parents make about their children, such as education, religion, health, the child’s name and living arrangements.
Each parent has equal shared parental responsibility for a child unless the Court makes an order changing this. The Court presumes that parents will have equal shared parental responsibility, unless there has been abuse of a child, family violence, or it is not in the child’s best interests.
When an order is made for equal shared parental responsibility, the Court will also consider whether it would be in the child’s best interests or practical for the child to spend either equal time with each of the parents, or substantial and significant time with each parent. The Court will take into account how far apart the parents live, the effect on the child of any proposed arrangements, and whether the parents can co-operate with each other.
Grandparents (or anyone who has and wants to continue an ongoing relationship with the children) can apply for an order to spend time with them. Children have a right to spend time on a regular basis with their parents and other significant people in their lives unless it is not in their best interests. Grandparents must therefore show that an order to spend time with the children is in the best interests of the children.
If a parent is in breach of a parenting order a party may:
- try to resolve the conflict through counselling or mediation services; or
- you can apply to the Court alleging the other party has contravened (broken) the parenting order.
Depending on the circumstances, the non-complying parent can be referred to a parenting program, fined, made to provide compensatory (or “catch up” time) with the child and parent, or even face jail.
If there is an order that the children live with or spend time with one party and the children have been taken or not returned, a parent may apply to the Court for a recovery order. This order allows the police (both state and federal) to find and return the children. If there is no parenting order in place that a party will need to apply to the Court for such an order, as well as a recovery order. This can be done at the same time.
If a party is worried that the children might be taken out of Australia they should put the children’s names on the Airport Watch List. A party will need to apply to the Court to place the children on the Watch List and send a copy of the application and any court orders made to the Federal Police.
A divorce is the legal recognition of the dissolution of a marriage. After you have been separated for at least 12 months you can file for divorce. It is possible to obtain a divorce even if you and your spouse lived in the same home during a part or all of the 12-month separation period.
You can NOT apply to the Court for a divorce unless you have been separated for at least 12 months before the application is filed. However you CAN start negotiations about property (and children) as soon as the marriage has broken down. Many matters are resolved before the divorce application is filed.
If you get divorced you must start property or spouse maintenance proceedings within 12 months of your divorce becoming final. If you have been in a de facto relationship, you must commence property or maintenance proceedings within two years of your separation.
There is no formula or rule that determines how the property will be divided. The Court is not required to split the property 50/50. It will consider many things, including:
- Property owned before the marriage or relationship: The extent to which this is considered the property of an individual partner will depend on the length of the marriage or relationship and what contributions the
- other partner made (if any) towards the accumulation and upkeep of property.
- Contributions made by both partners during the marriage or relationship: This includes direct contributions (e.g. wage earnings, maintaining assets and property), indirect contributions (e.g. gifts, assistance from family members), non-financial contributions, do-it-yourself home renovations and contributions made to the welfare of the family as a caregiver or homemaker.
- Future needs (e.g. whether one partner will be supporting a child, the age and health of each partner and their ability to obtain employment and earn income).
Generally, contributions to the welfare of the family would be considered to be just as important as the contribution of the primary wage earner.
Changes to the Family Law Act in 2009 gave de facto couples similar rights as married couples. The Act states that a couple is in a de facto relationship if they are not married to each other, are not related by family and they have a relationship as a couple living together on a genuine domestic basis. If you are in a de facto relationship any disputes over your children or over property will be treated by law in the same way as for a married couple, if any one or more if the following conditions apply:
- your de facto relationship lasted for at least 2 years,
- you have a child with your de facto partner,
- you have made a substantial contribution to the property or finances of your partner, or
- the relationship is registered.
If there is a dispute about whether you were in a de facto relationship, the Court will look at things such as:
- the length of the relationship,
- your living arrangements,
- arrangements of finances and property ownership,
- the degree of mutual commitment to a shared life
- whether there was a sexual relationship,
- whether or not you had or cared for children and
- the way you presented your relationship in public.
Under the Family Law Act 1975 a person is in a de facto relationship with another person if they are not legally married to each other, are not related by family and based on the circumstances of their relationship they are a couple living together on a genuine domestic basis. A genuine domestic relationship will including consideration of:
- the duration of the relationship
- Whether a sexual relationship exists
- The degree of mutual commitment to a shared life
- The existence of any children
- Whether one partner is financially dependent on the other
- The reputation and public perception of the relationship
Before the Court will determine a de facto dispute you must meet one of the following four gateway criteria:
- That the period for the de facto relationship is at least 2 years
- That there is a child in the de facto relationship
- That the relationship is or was registered under a prescribed law of a State or Territory
- When assessing property or custodial claims in cases of a breakdown of a relationship, it is recognised that significant contributions were being made by one party and the failure to issue an order would result in a serious injustice
A Binding Financial Agreement (BFA) is a contract between a couple that formalises how a their property, assets, superannuation and liabilities will be divided in the event of a breakdown of a marriage or a de facto relationship. A valid BFA ousts the Court’s jurisdiction in relation to financial proceedings between the parties generally, or in relation to specific issues, and can be entered into at the beginning, during or after a relationship.
The money, or in kind payments, paid by one parent to the other (or to someone else if the children do not live with a parent) is called child support or child maintenance. Child support may apply to all parents whether married, in a de facto relationship, never lived together, never had a relationship, and also may include same-sex parents.
The Child Support Agency (CSA), which is the Commonwealth government agency that looks after child support payments, uses a mathematical formula to work out how much child support should be paid, known as a child support assessment. Once a child support assessment is made by the CSA, parents are free to arrange private payment of this sum. The person entitled to receive the child support payments can also ask the CSA to collect these payments on their behalf.
Parents are able to enter agreements known as “child support agreements”, which set out in writing the amount, frequency and method of payment of child support payments. Centrelink has rules that must also be taken into account when entering a child support agreement.
We offer a free 30 minute telephone consultation to new clients. This gives clients the opportunity to obtain some legal advice and information about legal costs before deciding to proceed. There is no obligation on the client to proceed after receiving the free advice.