Frequently Asked Questions
We have listed some frequently asked questions to assist you in decision making and alert you to possible consequences of action or inaction. This is general information only and you should seek legal advice specific to your circumstances.
For a better understanding of how the law applies to you and the different pathways of resolution in your matter, contact us now to book an initial appointment.
We recognise that this may be a very stressful time in your life and our lawyers are well equipped to provide you with constructive guidance. We recommend that you have the benefit of meeting with one of our lawyers for at least a one-off consultation. By meeting with one of our lawyers you will be provided with practical advice to help you navigate your way through your legal issues.
The checklist below can assist you in deciding whether or not you need a lawyer to help you. If you answer ‘yes’ to any of the questions below, you are likely to benefit from legal advice:
|Are there children involved?|
|Are you unsure of what you are entitled to or what your obligations are?|
|Has your partner hired a lawyer?|
|Is violence an issue or a possible issue?|
|Do you feel emotionally unprepared to handle the negotiations yourself?|
|Is there likely to be a disagreement over the dividing of the property or assets?|
|Is your partner likely to want to move interstate, overseas or far away with your children?|
|Are you transferring assets between yourselves and require assistance in obtaining an exemption from the payment of stamp duty or tax?||
For a better understanding of how the law applies to you and the different pathways you can take to resolve your matter contact us now to book an initial appointment.
The short answer is no. Most family law matters are resolved by negotiation. Anecdotal evidence suggests that of those cases that proceed to court 95% settle without the need for a final hearing.
There are a range of options for resolving disputes including:
- Negotiation; for more information on how we can negotiate for you see our Negotiation Tab.
- Agreements; If you have reached agreement with your former partner/spouse about financial matters or parenting matters then we can prepare that agreement so that it is binding. This may include a consent order, parenting plan, financial agreement, or child support agreement
- Attending a Settlement conference; or
- Collaborative law
If your matter is in Court, or there are no options left other than to commencing Court proceedings, we can represent you. We can help you in all Family Law proceedings in the Family Court of Australia and Federal Circuit Court. We can also assist you in proceedings in the Magistrates Court of Queensland, including applications for a Protection Order.
This is an important question as missing time limits can preclude an application being filed without first seeking the Court's permission.
Property Settlement and Spousal Maintenance – The limitation period for filing an application for property settlement or maintenance arising from a de facto relationship is two (2) years from the date of separation and 12 months from the date of divorce for couples that were married.
Divorce – There is no time limit by which an Application for Divorce must be brought, however, no Application for Divorce can be brought unless there has been a period of 12 months of separation between the parties. That period of separation may include separation under the one roof.
Children – There are no time limits, however other requirements do apply.
Appeals – The limitation period for bringing an appeal against any Order of the Family Court or Federal Circuit Court (Federal Magistrates Court) may vary depending upon the type of Order to be appealed or reviewed. Some Orders require an appeal or review to be lodged within seven (7) days and others within twenty eight (28) days of the making of the Order. If you require further information in relation to appeals or reviews please contact us to discuss your situation.
Consent Orders – Application for Consent Orders filed in the Family Court of Australia are currently being determined between seven (7) to twenty one (21) days from the date of filing. In our experience, most matters that are agreed between the parties are able to have Consent Orders made and the matter finally resolved two (2) to four (4) weeks from the date of us receiving initial instructions.
Interim Hearings – An Application in a Case filed for the determination of an interim issue is usually listed for determination within six (6) to ten (10) weeks of the date of filing, however, it is not uncommon for matters not to be reached on the first occasion and require a further listing in order to be finally determined.
Urgent Interim Hearings – Applications seeking that the matter be listed urgently are currently being listed for determination between seven (7) and fourteen (14) days from the date of filing.
Extremely Urgent Interim Applications – Extremely Urgent Applications in a Case are normally listed the same day that the Application is filed or in some instances the following day and are usually determined on the date on which the matter is listed.
Final Orders – Current matters filed for determination in the Family Court of Australia or Federal Circuit Court that proceed to a Final Hearing are being determined approximately 12-24 months from the date of filing.
Reserved Judgement - it is common for a Judge to reserve Judgement at the conclusion of a final Hearing. It may take 3 to 9 months (or longer) to receive the Judgement.
Appeals – To the Full Court of the Family Court of Australia are currently being determined approximately nine (9) to twelve (12) months from the date of filing of the appeal.
It is important to see a lawyer if you are considering a separation or as soon as you separate from your partner. Planning and prompt action can assist to ensure you know and understand your rights, obligations and entitlements and are aware of any time limits and time frames.
Do I have to change my name?
No. Although it is not uncommon for women that have adopted their husband’s name to return to using their maiden name, you can choose to do this at any time and should contact the Registry of Births Deaths and Marriages. You are not obliged to change your name and you are free to continue to use your married name even after divorce.
Parenting Arrangements for Children
Separation of parents can be a very distressing experience for children. Most children will be vulnerable and younger children may express fear of abandonment and separation anxiety. Separation should not mean the end of a relationship with your children for you or your former partner. The family will continue but in a different form. The most important thing to remember is that children have a right to know and be cared for by both parents, as long as it is in their best interests. It is in very rare cases that children will not spend time with a parent. You should try and agree with your partner from an early stage on arrangements for your children that provide them with security and routine. Children should be protected from conflict. Many parents attend mediation to assist them reach agreement on children's living arrangements. Other than in exceptional circumstances, mediation is a prerequisite prior to bringing Court proceedings in children's mattes.
The Family Law Act allows for any person who has an interest in the care, welfare and development of a child to make an application about that child. This means that persons who are not the parents may apply to the Court for Orders, including grandparents.
You should immediately obtain legal advice if your children have been removed from your home. It may be necessary to apply for a recovery order– this means that the police may be ordered to collect the children and return them to your care.
Either party to a marriage (or both together) can apply for a Divorce once they have been separated from their spouse for a period of not less than 12 months. The basis of seeking a Divorce is that the marriage has broken down irretrievably. However, you can still apply for a property settlement or formalise arrangements for children immediately after you have separated.
Applications for divorce are brought in the Federal Magistrates Court of Australia. This can be a joint application brought by both parties or a sole application by one of the parties. There is a filing fee payable to the Court when filing an Application for Divorce. In most cases, it usually takes about three months for a divorce to be finalised from the time of filing. It is important to follow the correct process to avoid delays.
If there are children, the Court must be satisfied that they are being properly cared for, and the arrangements made for the children are satisfactory before it finalises the divorce. The divorce process does not determine the children's living arrangements. There is a separate process for that.
A certificate will issue one month after the Court makes the Divorce Order (unless there are special circumstances to vary this).
By law both parents are required to support their child financially. In some cases this may involve one parent paying a child support payment to the other, to help with the costs of raising a child.
Child support laws in Australia allow for children with separated parents to be covered by the Child Support scheme, administered by the Child Support Agency. The scheme uses a formula, based on the income of both parents, the costs of raising children, the number of children in the family, and the amount of time each parents spends with their children whom they are required to financially support. The Agency has a website to assist parents in understand how the formula works.
There are a number of steps that can be taken to dispute child support payments. If a parent believes the current child support payments are unfair, he or she can fill out an application with the Child Support Agency. If the Agency makes a decision which again is not favourable to the parent, further steps can be taken to have that decision reviewed.
In some situations of child support, lawyers are not needed at all. Parents can make their own arrangements. These can be informal and unwritten or may be formalised in a written agreement called a Child Support Agreement. A Child Support Agreement, which is properly prepared and signed, is able to be enforced if one parent does not comply with it.