Family Law FAQs

 Our experienced team will guide you through your family law matter

My former partner and I have reached agreement for property settlement between ourselves - is that good enough?

Even if parties do reach a mutual agreement it is still important to obtain independent advice from a family lawyer. A family lawyer will provide you with advice about whether the agreement is appropriate and fair and how to formalise the agreement to make it legally binding.

In family law matters, any agreement reached which is not documented by way of either Consent Orders through the Family Court of Australia or by way of Financial Agreement is not legally binding. This means that your former spouse or partner could make a claim against you in the future. This is why it is vital that you seek legal advice at Family Lawyers and formally document any agreement reached.

Call Alana Jacquet, our family law solicitor, for more information and advice specific to your situation.

What if I think my partner is hiding assets from me and the court during our property settlement?

It is a very common concern that another party may be attempting to hide their assets or income from their former partner or spouse.

The Court requires full and frank disclosure of each parties’ financial position to each other and to the Court. This includes all assets, income, earnings, liabilities, interests, financial resources, and property held in their own right or in related trusts or companies.

Parties are also required to account for any assets that they have disposed of since separation.

There are consequences for parties that do not comply with this obligation. If a party is not forthcoming with this information, there are Court procedures available to obtain that information and you can speak to our Family Lawyer in NSW to find out more about this process if necessary.

It may be useful to read the Family Courts ‘Duty of Disclosure’ brochure available on the Family Courts website which provides information about the Duty of Disclosure responsibilities of parties in all family law cases in the Family Court.

Call Alana Jacquet, our family law solicitor, for more information and advice specific to your situation.

What do Courts consider in parenting Orders?

The Court does not automatically make Orders for children to live with each parent equally. The Court has to consider what parent Orders are in the best interests of the children, having regard to their safety as the paramount consideration.

The courts take many things into account when considering what is in the best interests of the child and what parenting arrangements should be in place, including (but not limited to):

  • The benefit to the child of having a meaningful relationship with both parents.
  • The need to protect the child from physical or psychical harm.
  • The child’s relationship with both parents and other persons, including grandparents.
  • The willingness of both parents to involve each other in the child’s upbringing.
  • The extent to which either parent has fulfilled or failed in their obligations to maintain the child.
  • How will any proposed changes to living arrangements affect the child.
  • Are there any practical difficulties (such as distance) that parents will face in seeing the child.
  • The capacity of both parents to provide for all the child’s needs, including intellectual and emotional needs.
  • The responsibilities both parents have shown to parenthood.
  • The child’s own views and the weight it should give those views depending on the child’s age and maturity.
  • Any history of violence, abuse, or neglect.

Contact our experienced family law solicitors for more information and advice specific to your situation.

The other parent wants to move away with my children, what can I do?

‘Relocation’ is the term used when a parent moves to another town, city, or state with a child away from the other parent.

Relocation cases can be difficult because the courts acknowledge the importance of allowing both parents to play an active role in a child’s life, but the courts also realise that parents need the freedom to move around so they can take up new job opportunities or form new relationships. Despite this, the child’s best interests are always the paramount consideration of the court.

If the other parent of your child has relocated without your consent it is vital to the success of any application to have them return to the area and that action must be taken quickly.

Whether a parent may be granted the right to relocate will depend on a number of factors, including but not limited to:

  • The relationship the child currently has with each parent.
  • The ability for the child to maintain a loving relationship with each parent if they relocated.
  • The likely effect of any changes on the child’s circumstances.
  • How far away is the proposed relocation.
  • How the child will continue to communicate with each parent including the use of telephone calls, emails or webcams, etc.
  • The financial circumstances of each parent and their ability to afford travel.
  • Any burden or difficulties likely to be faced by the child as a result of the type of travel required.

It is expected that parents will discuss major decisions, such a possible move, with each other and try to come to an understanding about what is in the best interests of the child and each other.

If you would like to relocate or the other parent has relocated without your consent our experienced solicitors at Our Lawyers can help you with any queries you may have.

Contact our Family Lawyers Mittagong for more information and advice specific to your situation.

Do Grandparents have rights for parenting Orders?

Under the Family Law Act, grandparents do have rights to make an application to spend time with grandchildren or have the children live with them. It is always preferable though for grandparents to try to come to a mutual agreement with the child’s/children’s parents before making an application to the Family Court of Australia. For this reason, mediation, counselling, family therapy, or some other process that encourages the parties to appreciate each other’s perspective would be recommended at the first instance. Those processes also have the benefit of avoiding the legal costs associated with seeking orders through the courts.

Sometimes where a child is at risk of harm when with their parents, an immediate application to the courts by a grandparent is justified.

It is important to obtain sound legal advice early if you are a grandparent considering making an application or a parent responding to complaints by a grandparent. An experienced family lawyer will be able to discuss all possible options available to you and help you choose the preferred option.

If the dispute can’t be resolved between the parents and grandparents themselves the courts may decide the matter. The principles which the court applies when deciding whether to order that time be spent with a grandparent are the same principles that apply to any other person. The paramount principle is always what is in the best interests of the child.

If children are at an age or maturity to express a view, then that view may be taken into account by the court. The courts will have to consider the effect of any orders on the relationship between the parents and grandparents, which may in turn affect the children.

In these cases, the court will also take into account the time that the grandparents have spent with the child to date, their relationship with the child, the practicality of time being spent, and any risks to the child’s wellbeing.

Contact our experienced family law solicitors for more information and advice specific to your situation. An experienced Family Lawyer will help you understand the situation and defend your rights.

How is child support assessed?

Under the Child Support (Assessment) Act, the primary carer of the child or children can make a claim for child support from the other parent.

The Department of Human Services, Child Support is responsible for administering your child support arrangements and assessing the amount of child support to be paid.

The amount of child support is based on each parent’s income, the parents combined income, the number of children, and their living arrangements.

If parents reach a private agreement about child support arrangements this can be documented in a Binding Child Support Agreement. Private agreements allow for parents to document specific arrangements for expenses for the children and who pays what including but not limited to school fees, uniforms, technology requirements, medical expenses, and extra-curricular expenses.

Contact our experienced family law solicitors for more information and advice specific to your situation.

Sometimes where a child is at risk of harm when with their parents, an immediate application to the courts by a grandparent is justified.

It is important to obtain sound legal advice early if you are a grandparent considering making an application or a parent responding to complaints by a grandparent. An experienced family lawyer will be able to discuss all possible options available to you and help you choose the preferred option.

If the dispute can’t be resolved between the parents and grandparents themselves the courts may decide the matter. The principles which the court applies when deciding whether to order that time be spent with a grandparent are the same principles that apply to any other person. The paramount principle is always what is in the best interests of the child.

If children are at an age or maturity to express a view, then that view may be taken into account by the court. The courts will have to consider the effect of any orders on the relationship between the parents and grandparents, which may in turn affect the children.

In these cases, the court will also take into account the time that the grandparents have spent with the child to date, their relationship with the child, the practicality of time being spent, and any risks to the child’s wellbeing.

Contact our experienced family law solicitors for more information and advice specific to your situation.

Is fault considered in Divorces in Australia?

Under the Child Support (Assessment) Act, the primary carer of the child or children can make a claim for child support from the other parent.

The Department of Human Services, Child Support is responsible for administering your child support arrangements and assessing the amount of child support to be paid.

The amount of child support is based on each parent’s income, the parents combined income, the number of children, and their living arrangements.

If parents reach a private agreement about child support arrangements this can be documented in a Binding Child Support Agreement. Private agreements allow for parents to document specific arrangements for expenses for the children and who pays what including but not limited to school fees, uniforms, technology requirements, medical expenses, and extra-curricular expenses.

Contact our experienced family law solicitors for more information and advice specific to your situation.

Sometimes where a child is at risk of harm when with their parents, an immediate application to the courts by a grandparent is justified.

It is important to obtain sound legal advice early if you are a grandparent considering making an application or a parent responding to complaints by a grandparent. An experienced family lawyer will be able to discuss all possible options available to you and help you choose the preferred option.

If the dispute can’t be resolved between the parents and grandparents themselves the courts may decide the matter. The principles which the court applies when deciding whether to order that time be spent with a grandparent are the same principles that apply to any other person. The paramount principle is always what is in the best interests of the child.

If children are at an age or maturity to express a view, then that view may be taken into account by the court. The courts will have to consider the effect of any orders on the relationship between the parents and grandparents, which may, in turn, affect the children.

In these cases, the court will also take into account the time that the grandparents have spent with the child to date, their relationship with the child, the practicality of time being spent, and any risks to the child’s wellbeing.

Contact our experienced family law solicitors for more information and advice specific to your situation. Take the services of a Family Lawyer in NSW to defend your rights.

Can I apply for Divorce if we still live under the one roof?

Parties who have separated but remain living under the one roof can still apply for divorce after they have been separated for 12 months.

The Court will require proof that you have separated, including confirmation that you and your spouse live in separate rooms, you no longer attend social or family events together, that there is a separation of household tasks, and more. This involves either both parties (if it is a joint Divorce) or the applicant and a friend or family member filing an Affidavit setting out the parties’ relationship after living under the one roof.

If you would like to file an Application for Divorce contact one of our experienced family lawyers for advice and assistance in completing the application process.

Is Divorce and property settlement the same thing and does it have to be done together?

An Application for Divorce and property settlement are two different applications and processes within Family Law.

A Divorce is the formal recognition that a marriage had ended.

Parties who wish to file for property orders have 12 months to do so from the date the Divorce Order is final.

If you would like to file an Application for Divorce and property settlement contact our experienced family lawyer for advice and assistance in completing the Application process.

The Court will require proof that you have separated, including confirmation that you and your spouse live in separate rooms, you no longer attend social or family events together, that there is a separation of household tasks, and more. This involves either both parties (if it is a joint Divorce) or the applicant and a friend or family member filing an Affidavit setting out the parties’ relationship after living under the one roof.

If you would like to file an Application for Divorce contact one of our experienced family lawyers for advice and assistance in completing the application process.

What if I can’t find the other person to serve the Divorce application?

If you have lost contact with your spouse and do not know where they are to be able to serve the Application for Divorce upon them you can apply to the Court for an Order dispensing with service, or order for substituted service.  

In the past, we have had the Court approve service via various means including service by Facebook and email.  

If you wish to apply to dispense with service or order for substituted service, you will need to take steps to try and locate your spouse. Our experienced family lawyers can assist you with these steps and the application for an order of substituted service or to dispense with service.  

Do I need to attend court for the Divorce Hearing?

There are circumstances when an applicant to an Application for Divorce, and/or their legal representative, must attend Court when the Application for Divorce is listed for hearing. Our Family Lawyers at Mittagong will help to clarify this point for you.

If you and your spouse file a joint Application for Divorce there is no requirement for your or your spouse to attend the hearing of the Application.

If you file a sole Application, there are no children of your marriage under the age of 18, and you can prove that the Application has been served upon your spouse, then you do not have to attend the hearing of the Application for Divorce.

If you file a sole application and there are children of your marriage under the age of 18 then you, and/or your legal representative must attend the hearing of the Application for Divorce.

If you have filed a sole Application for Divorce and you have had difficulty in serving the Application upon your spouse, you will need to file an application seeking to substitute service or dispense with service. If this application is filed, you and/or your legal representative will be required to attend the hearing of the Application for Divorce.

If you would like to file an Application for Divorce, please contact our experienced Family Lawyers for advice specific to your situation.

What if the other person refuses to accept service of my Divorce Application?

An Application for Divorce is required to be personally served upon the Respondent to the Application. Personal service involves handing the Application to the Respondent. The spouse who applied for the Application cannot serve the documents. Our family lawyers recommend engaging a process server to serve the documents to your spouse.

If your spouse refused to accept service of the Application, the process server or other person serving the Application will need to explain to the Respondent what the documents are and leave them with the Respondent. The server will then complete an Affidavit of Service confirming those events.

If you suspect your spouse will refuse to accept service or evade service of the Application, please contact our experienced Family Lawyer to assist you to complete the Application and service upon your spouse.

What are the Court costs for a Divorce and can I make the other person share those costs?

An Application for Divorce is filed with the Federal Circuit Court of Australia. The Court charges a filing fee of $930 (as at 1 July 2020) for an Application for Divorce. If you and your spouse agree to file a joint Application for Divorce the cost should be shared between you. This is not a requirement and if your spouse refuses to share in the costs you may want to consider filing a sole Application for Divorce.

The Court also has a reduced fee of $310 (as at 1 July 2020) available for applicants who hold a health care card, heath benefit card, pensioner concession card, or any other card issued by Centrelink. You may also be eligible for a reduced fee if you are in receipt of Legal. If you are filing a joint application, both parties to the application must be eligible for the reduced fee to be applied. Our experienced family lawyer in NSW will help you with this kind of situation. 

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Office Address: 87 Main Street, Mittagong, NSW 2575

PO BOX: PO Box 150, Mittagong, NSW 2575

Phone: (02) 4872 4004

Fax: (02) 4872 4216

DX: 4964 BOWRAL

 

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