Once you have been separated from your spouse for a period of twelve (12) months you may apply for a divorce.
You can make an application on your own or together with your spouse. You will need to complete an Application for Divorce and file it at the Federal Magistrates Court. At the time of filing you must also provide a copy of your Marriage Certificate and any other documentation in support of the Application. Your matter will then be listed for a Divorce Hearing. If you have children under the age of 18 years you must attend the Hearing.
You do not have to wait until you are divorced. As soon as you separate you can apply for property Orders or spouse maintenance. However, once you obtain a divorce you only have twelve (12) months to institute such proceedings or permission will have to be obtained from the Court. This can be difficult to obtain and will require an application and evidence explaining why you have not done so within the time limit. The Court may refuse the application.
Both you and your spouse are entitled to live in the family home after separation. Your spouse cannot force you to leave, unless a Court orders you to leave. If you have to move out, it will not affect your rights to the property as any rights you have built up during the relationship will remain. If you fear violence you should seek advice immediately. The Family Court can make an exclusive occupancy Order for either spouse. That means you can live in the house, without your spouse living there, until the property has been divided.
The Family Law Act makes it clear that unless the Court orders otherwise, each parent has full parental responsibility for their children who are under 18 years of age. This does not mean, however, the children should spend equal time with each parent. You should talk with your partner and try to agree on fundamental issues such as where the children will live, how often the children will be looked after, how they will see both parents and any other important people in their lives, such as grandparents and matters such as schools and long-term health concerns. You should also talk with the children if they are old enough and find out their views. Counselling and mediation are effective ways of clarifying the important issues and this process can help you reach a workable agreement which minimises the cost and stress often associated with using Courts.
No. The best interests of the child is the most important consideration for the Court.
The Family Law Act states that children have a right to know and to be cared for by both parents. However when a parent needs to move away and that move will effect the child’s ability to see the other parent on a regular basis, a number of factors need to be considered. When there is an Order about contact you will need to look at the Order to see whether the move will breach the Order. You would then need to have the Orders varied either with consent or by the Family Court before any such move.
If there are no Orders about contact you or your partner will not be breaching any Orders by moving. However, if there is an informal agreement for your children to have contact, then either of you can ask the Family Court for an Order which stops your partner or you from leaving the area with the children. The Court will consider such things as the reason for moving, the current relationship the children have with each of you and how the new location compares with the current environment. Above all, the Court will look at what is in the best interests of the children.
Unless you can agree with your partner you will need Orders in place to ensure that you continue to see your children.
The Court can make an Order known as a Recovery Order if the children have been taken from you or have not been returned to your care. You can apply for a Recovery Order if there are current Orders in place in respect of the children. This Order allows the Police to find and return your children to you.
If you do not have a contact or residence Order then you need to apply to the Court for this as well as a Recovery Order. These Orders can be made simultaneously by the Court.
You may file an Application for Contravention. The Court takes breaches of its Orders very seriously. Depending on the circumstances, the non-complying parent can be referred to a parenting program, fined, made to provide compensatory contact or even face imprisonment. When a breach occurs, the non-complying parent must show a reasonable excuse to avoid punishment. For example, a child’s illness may be considered a legitimate reason for a parent not allowing contact.
If you can agree about arrangements for your children you can formalize this agreement and register it with the Court. As far as possible, parents are encouraged to share parental responsibilities and to define their own individual arrangements.
If you cannot agree with your partner, you can apply to the Court for a residence Order about where the child will live, a contact Order about contact between the child and the other parent, or a specific issues Order that includes other matters such as schooling, health or religion.
To change a Court Order, you will need to establish a change of circumstances. If a Court Order no longer reflects current arrangements for the children it can be changed with the Court. For example, an Order could be changed if a child was living with one parent and moves to live with the other. Although speaking with your former partner is a good starting point, verbal agreement does not change the legal effect of a Court Order. For this reason, one or both of the parties will need to make an application to change an existing Order of the Court. This can be done by consent if it is agreed between both parents or by the Court if there is no agreement after hearing all the evidence.
Once you separate you will need to think about financial support for your children. Child Support payments can be arranged by self administration (when you and the other parent decide how and when payments will be made), private collection (when the Child Support Agency calculates the amount of child support that is payable but collection is handled by you and the other parent) and Child Support Agency collection (where the Child Support Agency calculates the amount of child support that is payable and collects it on your behalf).
The parent who does not reside with the children has an obligation to financially support their children until they are 18 years of age, or become self- supporting. Whether your partner remarries or enters a new relationship will generally not reduce your liability to support the children financially. If you and your partner separated after 1 October 1989, the Child Support Agency formula will apply to you. If you separated before that date and can’t come to an agreement about the level of financial support, either person can apply to the Local Court, the Family Court or the Federal Magistrates Court for an Order.
Child support has nothing to do with contact. To ensure that you are entitled to see your children Orders should be made, either with the consent of you and your partner or by the Court.
The Child Support Agency will make a child support assessment in accordance with the child support formula. A party who disagrees or wants to change the assessment may file an Application for a departure Order with the Court. Before the Court can consider the Application a party must first lodge a change of assessment with the Child Support Agency. If they do not agree with the change of assessment decision, they need to lodge an objection and wait to receive a response from the Child Support Agency before making an Application.
A financial case can cover such things as property settlement, maintenance, child support or enforcement of and make financial Orders. Property covers such things as your home, other real estate, funds in bank, building societies, credit unions or other financial institutions, investments, life insurance policies, motor vehicles, interest in a business, household contents and superannuation.
If you can agree on how your property should be divided and would like your agreement formalised you can ask the Court to make Orders in terms of the agreement. You do this by applying for Consent Orders. Consent Orders have the same legal force as a decision made by a Judge in a Court room after a defended hearing. Before making the Consent Orders the Court will need to be satisfied that the Orders are properly drafted and the terms of the agreement are just and equitable.
f you and your partner are unable to agree you may seek assistance in reaching an agreement from a lawyer before applying to the Court to help resolve the matter.
The Court will consider many things including property owned before the marriage, contributions made by both partners during the marriage including direct contributions (e.g. wage earnings), indirect contributions (e.g. gifts from parents), non-financial contributions (e.g. work on renovations) and contributions made to the welfare of the family as a caregiver or homemaker, as well as 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).
In NSW, if you lived together and were not married you may ask the Supreme or District Courts to divide your property under the Property (Relationships) Act. The Act includes same sex couples and other domestic relationships. You need to have lived in NSW for most of the relationship and have been in the relationship for at least two years or have a child from the relationship or made a substantial contribution to the property or finances of your partner. In deciding on the division of property the Court will take into account the financial and non-financial contributions of each partner and the contributions of each partner as a homemaker and parent. The Property (Relationships) Act does not allow Courts to make adjustments for the future needs of the parties. This is the major difference between property in de facto relationships and property in marriage.
Under the Property (Relationships) Act you have a limited right to claim maintenance. You must show either that you cannot work because of the care of a child under the age of 12 years of the relationship, the care of a physically or mentally handicapped child under the age of 16 years or that you have lost your earning capacity as a result of the relationship but that you are prepared to undergo training or education to improve your earning capacity. The Court will also consider your partner’s ability to pay when determining how much maintenance you will receive.
Centrecare Australia (02) 6281 1087
Family Services Australia 1300 365 859
Relationships Australia 1300 364 277
Unifam (02) 9261 4077