Family Law

What do I do when I separate?

In the unfortunate event that you separate from your partner, we recommend that you implement these basic practical measures as soon as possible:

• Do not antagonise the situation. Try to remain civil with your ex-partner. This may assist you in resolving property and parenting issues with minimal involvement from lawyers.
• Change the passwords to all your individual accounts. Especially your individual bank accounts and any other financial accounts. Don’t forget that your ex-partner may also have access to your social media and email accounts. Change these passwords too to protect your privacy. Use an unrelated password your ex-partner would not be able to guess.
• Check all your bank account and mortgage accounts to make sure that your partner hasn’t withdrawn any money. If they have, contact the bank immediately and let them know what has happened. You should also seek urgent legal advice. Even if they haven’t withdrawn any money, you should contact the bank and tell them to make a note that you have separated.
• Compile all your financial documents and other important documents. Make copies of these and store them in a safe location. You may need to provide these to your lawyer. 
• Start collating all your financial records and determine the financial position of both you and your ex-partner as best you can. Determine all your assets, your liabilities and the value of your respective superannuation funds.
• Draft a new will and revoke any existing powers of attorney.
• Contact a family lawyer.

Property

How will my property be divided when we separate? 

The Court is obligated to make property orders which are just and equitable to both parties.

In deciding how any property will be divided, the Court will take the following four steps:

1. The Court identifies the property that is held by each of the parties and the value of that property

In simple cases, the Court will often use a balance sheet like the one below:

Assets	Value
Home	$
Wife’s car	$
Husband’s car	$
Funds in bank accounts	$
Household contents	$
Liabilities
Mortgage	$
Car finance	$
Husband’s credit card	$
Superannuation	$
Husband’s superannuation	Total: $
Wife’s superannuation

2. The court will look at both the direct and indirect contributions that each party to the relationship made

There are several types of contributions that the Court will look at including financial contributions, non-financial contributions and the homemaker or parent contributions.

Financial Contributions 

Financial contributions can be summarised as the monetary contributions to the relationship. They can include things such as salary and assets or money that each person had at the start of the relationship. Almost every kind of financial contribution can be included, and it is not limited to just standard financial contributions but can also include specific financial contributions such as compensation you received in relation to a personal injury or money that you inherited from your parents.

Non-financial contributions 

Non-financial contributions are non-monetary financial contributions you made that has resulted in an increase in the value of the net asset pool. A common example that we often see are renovations and improvements made to the family home.

Homemaker and parenting contributions 

Homemaker contributions refer to domestic duties performed in the relationship such as cooking, cleaning and grocery shopping. Parenting contributions are self-explanatory. The Court will look at who performed the parenting duties such as caring for the children, taking the children to school and helping them with their homework. People often make the mistake of believing that financial contributions are more important than homemaker and parent contributions. This is untrue. Homemaker and parent contributions are often just as important and can be given even more weight whereby one party assuming the parental and homemaker role, the other party was able to build up their career and earn a significant salary. Generally, the role of the breadwinner and the role of the caregiver are given equal weight.

Timing 

Often the timing of a contribution is also very important. For example, an inheritance received at the beginning of a 20-year long marriage usually won’t be as significant of a contribution as inheritance received a year before you have separated.

Usually, the Court will first look at the contributions made at the commencement of the relationship. This will include the assets and liabilities that each party came into the relationship with. In most cases, because the parties haven’t yet lived together, these contributions will be limited to financial contributions. However, they can also include non-financial contribution such as maintenance works and renovations carried out on the property. The shorter the relationship is, the more important these early stage contributions will be.

The Court will then look at the contributions made during the relationship. This will include financial contributions; non-financial contributions and parent and homemaker contributions.

Finally, the Court will take any contributions each party made post-separation. Typical examples of post-separation contributions that we see include situations where one party is the sole carer for the child after separating or where one party has worked hard to increase the value of the business or property after separating.

Wastage

The Court can also look at where the money has been spent during the relationship and after separation in circumstances where there are allegations that there has been wastage. Wastage is when a person has spent significant sums of money on activities such as gambling, drinking, drug use and prostitution. You will have to prove that your ex-partner caused this wastage, and this can be very difficult where they have hidden their behaviour very well. We have been involved in cases where we have had to comb through thousands of pages of bank statements to determine just how much money has been spent on gambling. We have even had to investigate where ATM withdrawals were made and their proximity to casinos and TABs. In some cases, our clients have been surprised to learn that their partner has spent hundreds of thousands of dollars on gambling during the relationship. Wastage is not limited to only activities like drug use and gambling but can also include wasting money after separating on expensive holidays, parties and even food. In some case, it can also include business losses.

3. What are your future needs or section 75(2) factors?

The Court will consider whether it needs to make a percentage adjustment in favour of a person who can demonstrate greater future needs. Future needs typically refer to a person’s financial needs and covers all kinds of factors most common of which are: the age and health of the parties; the income, property and financial resources of the parties; the physical and mental capacity of the parties for appropriate employment; whether either party cares for a child of the marriage; commitments of each of the parties to support themselves, a child or any other person; and eligibility to receive any government benefit.

After considering the future needs, the Court may make an adjustment to the contribution percentage of the parties to account for their future needs. The adjusted percentage is then applied to the net asset pool to determine how the property is divided between the parties.

4. The Court must not make an order unless it is just and equitable.

The Court will not make an order unless it is fair in the circumstances. Some people think that they should be entitled to the entire asset pool or that they will lose everything. This is rarely ever the case because any order must be just and equitable.

In conclusion, there are many factors that can be considered in determining how the property will be divided. All these factors will need to be evidenced and brought to the attention of the Court as to ensure you achieve the best possible outcome.

Parenting

Who gets custody of the child?

In Australia, the Courts do not use the term custody. The Courts use the terms live with and spend time with. Typically, the child will live with one parent and spend time with the other parent. 

Parents often incorrectly assume that the children will spend equal time with both parents. While this may sometimes be the case, in most circumstances it is not.

When making parenting orders, the Family Law Act provides that the Court must have regard to the children’s best interests as the paramount consideration. In determining what is in the child’s best interest, the Court will take the following primary considerations into account:

• The benefit to the child of having a meaningful relationship with both parents.
• The need to protect the child from physical and/or psychological harm as well as the need to shield them from exposure to abuse, neglect or family violence. This includes not only violence inflicted on the child but also the child’s exposure to family violence inflicted on other members of the family.

The Court will favour the need to protect the child from physical and/or psychological harm, especially in situations where there is evidence of family violence and abuse. Indeed, the Family Law Act requires the Court to give greater weight to the need to protect the child.

The court will also look at all other additional relevant factors such as:

• The wishes expressed by the child (these wishes will be of more relevance to the Court the older the child is or the more mature the child is).
• The nature of the child’s relationship with each of the parents and any other persons such as grandparents or other relatives of the child.
• The extent to which each of the child’s parents has or has failed to maintain the child.
• The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents or any other child or other individuals (i.e. a grandparent or other relatives) with whom the child has been living.
• The practical difficulty and expense of a child spending time with and communicating with a parent.
• The capacity of each of the child’s parents or any other person (i.e. grandparents or other relatives) to provide for the needs of the child (this includes emotional and intellectual needs, not just financial needs).
• The maturity, sex, lifestyle and background of the child and of the child’s parents.
• If the child is an Aboriginal or a Torres Strait Islander, the child’s right to enjoy their culture and the impact any proposed parenting order would have on that right.
• Each parent’s attitudes to their parental responsibilities.
• Any family violence involving the child or a member of the child’s family.
• If there is a family violence order, any relevant inferences that can be drawn from that order.

Every family’s circumstances and parenting arrangements are unique. Because of this, parenting orders typically vary considerably from case to case. 

For example, in some cases the child might need to be in the mother’s care most of the time because the child is an. In other cases, the children may live with the father and spend time with the mother. In some cases, one parent may be abusive, and the Court will make orders that they spend only supervised time with the children or even have no contact with the children at all. In some cases, parents may frequently travel with the children overseas to visit family and the Court will have to make orders that regulate how and when the overseas travel is to take place.

Because of this, parenting arrangements must be carefully thought out so to ensure that they are in the best interests of the child  but also to avoid the need of returning to Court at  a later date to change the orders because they are no longer appropriate or practicable.

Do I need to go to Court?

In short – no. You and your ex-partner may be able to agree to parenting arrangements for the child without the need to ever attend Court. These arrangements can be informal and non-binding. In other words, you can have informal parenting agreement that you are not legally required to follow. Alternatively, the parenting arrangements can be formal and binding. This is done by applying to the Court for consent orders. Applying for consent orders does not require you to attend Court. This process is far quicker and cheaper. Consent orders have the same effect as any other orders made by the Court. In other words, you and your ex-partner would be required to adhere to these orders and failure to do so could have serious consequences.

In some cases, you and your partner may not be able to agree on parenting arrangements. When this happens, you can get a family lawyer to help you to negotiate suitable parenting arrangements with your ex-partner or your ex-partner’s lawyers. In some cases, your family lawyer will have to file an application in the Court seeking parenting orders. However, even after you have filed an application, you or your lawyer can still negotiate appropriate parenting arrangements before the hearing. This way, you can avoid the costs of having to attend Court.

At times, it may be impossible for either party to agree on parenting arrangements for their children. If this happens, you may need to go to Court to decide what parenting orders should be put in place.

What is family dispute resolution and what is a Section 60I Certificate?

The Family Law Act requires that parents who cannot agree about their child’s parenting arrangements attend family dispute resolution (often referred to as mediation) and obtain a Section 60I Certificate before applying to the Court for parenting orders.

At mediation, the parents will discuss and attempt to reach an agreement in relation to the child’s parenting arrangements with the assistance of a mediator.

A Section 60I Certificate is a Certificate of Attendance. It can be issued even if you never actually attended mediation. A Section 60I Certificate can be issued in the following circumstances:

• Where you did not attend mediation because the other party refused to or failed to attend.
• Where you did not attend mediation because the mediator considered that your circumstances were not appropriate for family dispute resolution.
• Where you and your ex-partner both attended mediation and made a genuine effort to resolve the issues
• Where you and your ex-partner both attended mediation, however, you or your ex-partner, or both of you, did not make a genuine effort to resolve the issues.
• Where you attended mediation but did not complete mediation because the mediator considered that your circumstances were not appropriate for family dispute resolution.

It is important that you obtain a Section 60I Certificate because you cannot apply to the Court for parenting orders until you do unless there are special circumstances that apply to your case.

Divorce

How do I get a divorce?

You can make an application for a divorce to the Federal Circuit Court of Australia.

To successfully apply for a divorce, you must have been separated for 12 months and there must be no reasonable likelihood that you will reconcile with your partner.

You do not have to be divorced before you apply for or negotiate a property settlement. In fact, parties only have 12 months from the date that their divorce certificate is granted to apply for a property settlement. If the 12-month period has already passed, you can still apply to the court for leave to file an application for property orders, however, the court will only grant leave if it is satisfied that hardship would be caused to you or a child if such leave were not granted. If you are approaching the end of the 12-month period or it has passed already, please seek urgent legal advice. If you contact our office, we will give priority to your case.

Can I still get a divorce even if my ex-partner and I still live together?

You can still get a divorce; however, the process becomes a little more complicated. If you are completing a joint divorce application, you and your partner will both have to also swear affidavits to prove that you have been separated for 12 months. If you are completing a sole application, you and an independent person that knows you will have to each swear an affidavit.

An affidavit is a sworn witness statement. In this case, the purpose of the affidavit is to prove that you have been separated for 12 months and that there is no reasonable likelihood that you will reconcile with your partner. Factors that the court is interested in, include:

• Changes in sleeping arrangements.
• Reduction in shared activities and family outings.
• A decline in performing household duties for each other.
• Separation of finances, such as using separate bank accounts.
• Why you continued to live with your partner, especially if it was for financial reasons.
• Whether you intend to change your living arrangements.
• The living arrangements you have made for any children of the relationship.
• Whether you have advised any government departments of the separation.

How much does it cost to get a divorce?

The Federal Circuit Court lists divorce fees on their website. 

If you hold certain government concession cards such as pension cards and healthcare cards or if you are experiencing financial hardship, you may be eligible for a reduced fee.

If you are completing a joint divorce application, both you and your partner must qualify for the reduced fee. Therefore, even if you and your partner have agreed to apply for a divorce together, it may still be cheaper to complete an individual application if you do not both qualify for a reduced fee.

Do I need a lawyer to get a divorce?

We always advise our clients to have a lawyer assist them with their divorce application. However, if you have a knack for paperwork, you may wish to prepare your divorce application yourself. The Federal Circuit Court provides a divorce application kit to assist with this process.

If you choose to complete the divorce application yourself, make sure that you fill out the application correctly as errors could lead to delays in the Court granting you a divorce. This can be an annoying inconvenience, particularly if you plan to remarry soon or even a costly problem if you have already booked the wedding date.

If you choose for a divorce lawyer to prepare your divorce application for you, we charge a fixed fee to complete, lodge and finalise your divorce so that you can avoid any nasty cost surprises and move on with your life.

Intervention Orders

If you are in fear for your or your children’s safety, you may be able to make an application for an intervention order. Intervention orders are made in the Magistrates’ Court. Applications can be made by police or by an applicant in person by attending at a police station or a Magistrates’ Court. 

Under the Family Violence Protection Act 2008 in order to grant an intervention order the Court will be required to look at whether the respondent has subjected the affected family member to family violence and is likely to do so again. 

Section 5(1) of the Family Violence Protection Act 2008 defines family violence as: 

1. behaviour by a person towards a family member of that person if that behaviour – 

1. is physically or sexually abusive; or 
2. is emotionally or psychologically abusive; or 
3. is economically abusive; or 
4. is threatening; or 
5. is coercive; or 
6. in any other way controls or dominates the family member and causes that family member to feel fear for the safety or wellbeing of that family member or another person; or 

2. behaviour by a person that causes a child to hear or witness, or otherwise be exposed to the effects of, behaviour referred to in paragraph (a). 

Section 5 of the Family Violence Protection Act 2008 also provides a non-exhaustive list of behaviours which constitute family violence. These include assault, sexual assault or coercion, intentional damage of property, deprivation of liberty, causing death or injury to an animal, or threatening to engage in such conduct. 

Our areas of expertise

We can assist you with any kind of family matter, including the following: 

• Binding financial agreements (sometimes referred to as prenuptial agreements or separation agreements)
• Property and financial matters
• Complex property pools, trusts, business structures and asset holdings 
• Parenting and children’s matters
• Divorce applications 
• Alternative dispute resolution and mediation

The information is intended to be a general guide only and is not intended to constitute professional or legal advice. Destra Law expressly disclaims any and all liability for any loss or damage arising from reliance upon any information on this webpage. To discuss concerns about Famiy Law, please do not hesitate to contact Destra Law on 9898 8282, on info@destralaw.com.au or by filling out our contact form.