At this emotional time, you need someone on your side, who will protect your interests, both financial, emotional and the interests of your children.
Our family lawyer is passionate about making sure that you get what you need to set up your new life and go forward, confident that your interests have been protected.
Whilst we always adopt a conciliatory approach with your ex-partner and their representatives, to get you a fast outcome with minimal stress and legal costs, don’t be fooled. We will, where necessary, take a hard line stance to protect you and your children from being short changed, and will treat you like a family member we are fighting on behalf of.
Frequently Asked Questions
FAQ’s Regarding Divorce
Is there a time limit?
There’s no limit to how long after separation you can apply, however you cannot file an application until you’ve been separated for 12 months. This includes separation under one roof.
How much does a Divorce cost?
The Federal Circuit Court filing fee is $930. If you hold a concession card, you can apply for the reduced fee of $310. If you are filing a joint application and want to apply for a reduced fee, both parties must be eligible.
When can I apply for a Divorce?
12 months after separation, even if you are living in the same home. However, if you are still living in the same home, you will need to file an Affidavit setting out the details of your separation.
Do I need a lawyer for my divorce?
Strictly speaking, no. BUT if your matter is complicated, you might need the assistance of a lawyer. This may be because you don’t know where your former partner is living, you don’t want to ask someone else to serve a copy of the Application on your former partner, you don’t feel confident to prepare the Application alone, or you may be required to attend Court and don’t feel comfortable doing that.
Does it matter who is to blame for separation?
No. Australia has a no-fault system of divorce. Unlike other countries, the reason for divorce is not relevant to the process. Our Courts only need to be satisfied that you were legally married, that you have separated and that any children of the marriage are appropriately cared for.
Do I need to go to Court for a Divorce?
Possibly. If you have children under 18, then you must attend the Hearing. If you do not have children under 18, you are not required to attend. If you want to dispute a divorce application filed by your former partner, then you must attend. There are a couple of other more complex scenarios in which you may need to attend, so feel free to call us to chat through your matter.
I’ve been served with a Divorce application. What should I do?
One of the documents served on you will be an Acknowledgement of Service. Whilst you are not obliged, if you have no objection to the divorce application we recommend you complete the document and return it either to your former spouse, their lawyer or directly to the Court.
Do I have to dispute a Divorce application?
No. If the facts in the application are accurate and you are agreeable to the divorce taking place, then you do not need to dispute it.
Does a Divorce finalise our financial matters?
NO! A divorce strictly relates to the status of your marriage. Your financial matters need to be settled independently of your divorce.
What if I don’t know where my spouse is?
We may be able to either help locate your spouse or apply to the Court for substituted service of your Application. If this applies to you, please get in touch.
What if we’re still living in the same house?
You will need to complete an Affidavit providing extra evidence that there has been a change in the marriage. It is important to provide relevant information, as set out on the Federal Circuit Court website (www.federalcircuitcourt.gov.au)
FAQ’s Regarding Children
Who gets custody or access?
We no longer use the terms custody and access in Australia. The appropriate terms are live with and spend time with.
The most important tool for determining who children will live with is the consideration of their best interests. This refers to protecting children from physical and psychological harm, abuse, and neglect. It also refers to ensuring the children have a meaningful relationship with both parents, and to ensuring that both parents meet their parental responsibilities to the child.
Other considerations include the physical locations of the parents together with the ability of the parents to communicate and cooperate with respect to the children.
Will I get shared care?
That depends. Sometimes, if shared care is a suitable and practical arrangement, parents will attend to arrangements directly and will not need the assistance of lawyers. However, in circumstances where parties are not in agreement, it will then depend on the individual circumstances of the family.
The Court will consider the history of the children’s daily care arrangements, together with considering whether such an arrangement would destabilise the children and have a detrimental impact on their best interests.
A history of family violence will have a significant impact on determining the best interests of the children.
What is parental responsibility?
The legislation defines it as all the duties, powers, responsibilities, and authorities which, by law, parents have in relation to children.
In plain English, this parental responsibility refers to the big decisions made for children such as education, elective medical treatment, the name they use, whether they have a passport along with the responsibility for their care and wellbeing.
What does ‘shared parental responsibility’ mean?
This is where both parents share in the duties, powers, responsibilities, and authorities with respect to their children, regardless of where the children primarily live. So for children who live primarily with one parent, both parents have shared parental responsibility when it comes to deciding on the right school for a child or whether that child should undergo elective medical treatment.
If your matter is before a Court, the Judge must apply legislated presumption that equal shared parental responsibility is in the best interests of children. It is up to each party to argue if they do not believe the presumption should apply. If parties do end up with equal shared parental responsibility, that does not automatically equate to equal time.
Do we have sole custody in Australia?
Theoretically yes, but we now use the terms “live with” and “spends time with” rather than custody and visitation which have negative connotations. Other outdated terms include residence, guardianship, access, and contact.
Is one parent more likely to have the children?
There is no rule or law dictating this for all families. Rather, the legislation considers the best interests of the children. On that basis, an arrangement that is best for the children of one family, may not be the best arrangement for the children of another family.
The Court will consider each individual family before them to determine the best care arrangements for that family.
Does it matter if I’m not married to the other parent of the children, only in a de facto relationship?
What age do children get a say?
18. Until the age of 18, they continue to be children. Practically speaking however, children will reach an age where they will be consulted on their wishes. These wishes can be considered by the Court in determining what is best. This does not mean those wishes will be acted upon, as the primary consideration will continue to be the best interests of the children.
We look at this the same was as if a child said they do not want to attend school. Whilst it is important to talk about why they don’t want to attend school, to ensure they feel understood and heard, it does not necessarily mean a parent will allow them to stop going to school.
Their best interests must be the focus and it remains an adult decision as to what is in their best interests.
What is a Parenting Plan?
A parenting is a document signed by both parents, setting out their agreement with respect to care arrangements for the children. This document can be handwritten or typed.
Before coming to a final agreement about a Parenting Plan and signing the document, we strongly recommend you seek initial advice about your rights and entitlements.
Can I enforce a Parenting Plan?
Importantly, this document is NOT a binding agreement and is not enforceable by either parent. The Plan however may be helpful as an indication of the parties’ intentions.
If one party fails to comply with a Parenting Plan, we recommend you seek detailed advice.
Do I need to go to Court?
Not necessarily. If you and the other parent reach an agreement, either alone or with the assistance of lawyers, you can jointly apply to the Court for Consent Orders, which is an administrative process only, no Court attendance required.
Once your application is accepted by the Court, the agreement becomes binding Court Orders, which are enforceable.
However if you are unable to reach an agreement, either party can file an Initiating Application with the Court, in which they can seek Orders that they believe to be in the best interests of the children.
There are multiple stages of Court proceedings and if you are thinking of filing an Initiating Application, we recommend you seek detailed legal advice.
If we go to Court, does the Mother automatically get more time with the children?
No. There is no automatic assumption as to which parent the children spend more time with. In accordance with the Family Law Act, the Court must first apply the presumption that joint parental responsibility. This does not mean physical or equal shared care of the children, but rather the joint responsibility to make important decisions about the children.
If the Court determines that shared parental responsibility is appropriate, they will then consider whether shared care arrangements is in the best interests of the children and whether such an arrangement is practical.
To determine an arrangement in the best interests of the children, the primary considerations for the Court are:
- The benefit to the children of having a meaningful relationship with both parents; and
- The need to protect children from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect, or family violence.
The Court will consider the historic arrangements of the family, including who has provided primary care to the children.
This is different in every family, particularly as parents move away from “traditional family roles.” In the past, this has been a “breadwinner” father and a “stay home” mother.
Consideration of the specific set of circumstances in your family are the only way we can provide advice about the likely outcome if your matter was determined by the Court.
A brief list of some other considerations for the Court are:
- The children’s relationship with each parent;
- The willingness of each parent to facilitate the children’s relationship with the other parent;
- The extent to which each parent has taken or failed to take the opportunity:
- To participate in making decisions about major long-term issues in relation to the children;
- To spend time with the children; and
- To communicate with the children.
- The extent to which each of the parents have fulfilled or failed to fulfill their obligations to maintain the children;
- The impact to the children of changes in living arrangements; and
- Whether the children have been exposed to family violence in the extended family.
Again the considerations will be subject to your circumstances and we can provide further advice as required.
I’ve been served with an application for children’s orders. What should I do?
Get legal advice. It is important that even if you do not wish to formally engage a lawyer, that you get legal advice about your personal situation.
It will be necessary for you to file a Response along with other legal documents and to ensure the best possible outcome for the children, you need to comply with all Court requirements.
Can I move or relocate with the children?
This is a complex question that requires specific advice having regard for your family and your circumstances. We recommend you seek legal advice before deciding whether to relocate.