Separation & Divorce

Parties are separated when they stop living together as husband and wife. This can happen when one party moves out of the former matrimonial home, or the parties can be separated under the one roof provided certain requirements are met and you can establish to the Court that you both live separate lives.

To prove that you have been separated under the one roof, you will need an affidavit from at least one independent witness who can testify as to your living arrangements. You will also need to file an affidavit providing evidence as to such arrangements. We recommend that you engage a solicitor to assist in this regard, as an Affidavit is a sworn document and should be drafted with care.

If the separation is disputed, the court compares your living arrangements before separation to after separation. For example, the court looks at things which may go to make up the marriage like sleeping arrangements, performance of household services, absence of shared activities, parties ceasing to hold themselves out as a couple, lack of sexual relations between the parties, and the financial arrangements of the parties.

The court is not concerned about who may have been at fault in the marriage, and they will not allow evidence to be given about it.

Yes. However if you choose to oppose the Application, you must complete and file and serve a Response to Divorce Application. A common objection is a dispute in respect to the actual date of separation.

A short reconciliation of less than 3 months will not affect your ability to file for divorce, on the basis that the two periods of separation before and after the reconciliation (but not including the period of reconciliation) add up to a period of separation of at least 12 months.

Either you or your ex-partner can apply for divorce separately, or you can make a joint application.

You must arrange to serve the Application for divorce upon your ex-partner. You cannot do so yourself. You must then obtain an Affidavit of Service from the person serving the application.

You can apply to the Court for the divorce to proceed without the application being served. You will need to file an Affidavit setting out the efforts you have made to contact your ex-partner. It is important to consider engaging a solicitor to assist in this regard as well, as to appear before the Court.

You do not have to attend unless there are children of the marriage under the age of 18. However, if there are children under 18 and you are making a joint application and you have requested in the Application that the matter be dealt with in your absence, then attendance is not required.

However, in some cases, the Court may still request that you attend the hearing.
We recommend that you attend so that you may answer any questions the Registrar may have about your application to avoid unnecessary delay.

It is estimated that it will last from about 3 months from the date of filing until the divorce is final – however, this may be longer if there are problems.
Your divorce may not be granted at the first hearing. The Court may ask you for further information. You cannot remarry until your divorce becomes final.

If you have children under 18 years, the court wants to know that proper arrangements have been made for the care, welfare & development of the children. The Court will be concerned about whether the children are having contact with both parents, and what arrangements are in place for the financial support of the children, including their housing, supervision and education.

If it is less than two years between the date of marriage and the date of filing the application, then there is a requirement that you and your ex-partner attend counselling to show that you have considered reconciliation. This counselling is compulsory.

The counsellor will provide you with the Counselling Certificate for Applicants married less than two years (signed by an approved mediation or counselling agency) to show you have attended counselling or mediation in compliance with this requirement. If there are special circumstances that make mediation impossible or inappropriate, you need to advise the Court and seek that this requirement be dispensed with.

At the divorce hearing, the Registrar, if satisfied of all relevant issues, will grant a Divorce which becomes final in one month and one day from the date the decree nisi is granted. This time frame may only be shortened in special circumstances.

You will receive a Divorce Order in the mail – if you do not receive it, contact your solicitor or the Court, quoting your file number. The parties are free to marry once the Divorce Order is made.

The effect of your divorce on any current will is to nullify any gift or reference which your will makes to your former partner. You should make a new will, and do not need to wait until you are divorced to update your will.

Deciding on Children’s Care During and After Divorce

Your Rights On Separation

The Family Law Act provides that both parents have equal shared parental responsibility for the care and welfare of their children.
There is no automatic rule that children should live with either their mother or their father after separation.

If you and your ex-partner can’t agree as to where the children are to live, then the Family Court has the power to make what are called “Parenting Orders”.

Parenting Orders can be agreed upon by a child’s parents, or can be orders made by the Court. Parenting Orders can deal with:

• The person or persons with whom a child is to live
• The time a child is to spend with other people
• The allocation of parental responsibility for the child
• How parents will consult with each other about decisions to be made in relation to their children
• The communication a child is to have with another person, for example by telephone, email, video link up, or other electronic means
• How disputes in relation to interpretation of a Parenting Order can be resolved
• Any other issues relevant to the welfare of the children including for example medical treatment, choice of school, religious upbringing etc

You and your partner do not have to have parenting orders made when you separate. If you can agree about all matters concerning the children’s welfare and upbringing, then you can choose to enter into a Parenting Plan which can be adapted in line with your children’s changing needs.

In situations where there is a conflict and disagreement between yourself and your partner, then you have the right to ask the Family Court to make Parenting Orders, or your partner and yourself can agree upon various Parenting Orders.

In the making of any Parenting Orders, including Orders which prescribe who a child lives with, who a child spends time with and communicates with, the Court must regard the best interests of the child as the paramount consideration.
The overriding factors set out in the Family Law Act which demonstrate the purpose of the legislation as to arrangements for children upon separation of their parents are as follows:

• ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
• protecting children from physical or psychological harm from being subjected to, or exposed to, abuse neglect or family violence; and
• ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
• ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children; and
• children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
• children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
• parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
• parents should agree about the future parenting of their children; and
• children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture.

It is against these fundamental principles that the Court will determine the best interests of the child.

Since 1 July 2006 , the Family Law Act has been amended to provide that there is a presumption of equal shared parental responsibility. This presumption can only be displaced in limited circumstances including where there are instances of family violence or child abuse.

Provided that the presumption is not displaced, the Court must consider an Order where the children spend equal time with each parent, or alternatively an Order where the children spend “significant or substantial” time with each parent. A number of factors are set out in the Family Law Act which help the Court determine what is in a child’s best interest these include:

Primary considerations for Child Custody

• the benefit to the child of having a meaningful relationship with both of the child’s parents; and
• the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Additional considerations

• any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
• the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child);
• the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
• 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 person (including any grandparent or other relative of the child), with whom he or she has been living;
• the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
• the capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs;
• the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
• Cultural considerations if the child is an Aboriginal child or a Torres Strait Islander child;
• the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents: has taken, or failed to take, the opportunity:
• to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child.
• has facilitated, or failed to facilitate, the other parent:
• participating in making decisions about major long-term issues in relation to the child, spending time with the child and communicating with the child.
• has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
• to events that have happened, and circumstances that have existed, since the separation occurred.

The Court must also consider whether an Order providing that the children spend equal time with both parents or significant and substantial time with both parents is “reasonably practicable”. The Court will consider the following factors in determining the reasonable practicality of a proposed Order:

• how far apart the parents live from each other;
• the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents;
• the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
• the impact that an arrangement of that kind would have on the child.

In many disputes concerning children some of the above factors are more relevant than others depending upon the particular facts of the case.
It is important to always remember that the Court has a wide discretion to make the order that they think is the most proper and that is in the best interests of the child.

Parenting Orders are never final, but if you or your partner wish to change the Orders, then you can do so by agreement. If you don’t agree, then you must satisfy the Court that a change in circumstances has occurred (since the Parenting Orders were made) that warrants the Court changing the Orders.

Relocation

As Australia becomes a more mobile society, there are more incidences of one of the parents of the children wishing to relocate, either within Australia or to a foreign country. A Court cannot prevent a parent from relocating. However, it can prevent the parent who has the care of the children from taking the children with them.

Unless there are exceptional circumstances, the parent who intends to relocate with the children should notify the other parent prior to doing so. If the other parent consents to the relocation, arrangements for contact with the children will need to be negotiated or determined by the Court. If negotiations are successful, then it is preferable that any agreement be properly documented.

If the other parent does not agree, then it may be necessary for the parent wishing to relocate to make an Application to Court. The Court will then make a decision based upon the welfare or best interests of the children.

If there is a Court Order relating to parenting issues, including who the child lives with and the time a child spends with other people, it is likely that the parent who the child lives with would not be permitted to relocate without the consent of the other parent – otherwise they may be in breach of the Order. The parent who the child lives with would need to make an Application to the Court to seek to vary the Order to allow them to relocate.

Even if there is no Court Order, it would be prudent for the parent wishing to relocate with the children to seek the consent of the other parent before doing so and, if that parent does not give their consent, make an Application to the Court for an Order which would allow them to do so.

In determining relocation cases the Court has applied the following principles:

• The welfare or best interests of the children is the paramount but not sole consideration;
• A person wishing to relocate with the children is not required to demonstrate compelling reasons for the relocation;
• The Court must evaluate each of the proposals advanced by the parties;
• The evaluation of the intending proposals must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for the children’s best interests;

A Court cannot determine the issues in a way which separates the issue of relocation from that of who the child will live with from the best interests of the children.

When considering the best interests of the children, the Court will take into account such things as the right of the parent who the child lives with to move on with their life, form new relationships and have freedom of movement and the need to ensure the continuation of the relationship with the parent that the child spends time with, and travel costs involved should the parent who the child lives with be permitted to relocate with the children.

The distance of the proposed relocation is a significant factor. The Court is very unlikely to restrain a parent who wishes to move from Brisbane to the Gold Coast. However, a parent who wishes to relocate the children to another country would have much more difficulty persuading the Court it is in the children’s best interests to do so, given the likely result is that the other parent would have much less frequent contact with the children.

In cases such as these, the parent wishing to relocate would need to put forward good reasons to the Court why it would be in the children’s best interests to leave Australia to reside overseas and what arrangements they propose to be put in place to ensure the other parent has regular and meaningful contact with the children.

The parent seeking to relocate with the children or a parent who wishes to prevent the other parent from relocating should seek legal advice from us at an early stage.

Independent Children’s Lawyer

An Independent Children’s Lawyer is a Solicitor appointed by the Family Court to represent your children in the dispute before the Court.

The Independent Children’s Lawyer is always an experienced Family Law Practitioner who has practised in the area of Family Law for many years and has had extensive experience with disputes concerning children before the Family Court.

The Court does not automatically appoint an Independent Children’s Lawyer in each and every dispute concerning children.

The Court will usually only appoint an Independent Children’s Lawyer upon Application by one of the parties and usually where one or more of the following circumstances exists.

• There are allegations of abuse or neglect in relation to the children;
• There is a high level of conflict and dispute between the parents;
• There are allegations made as to the wishes of the children and the children are of a mature age to express their wishes;
• There are allegations of family violence;
• Serious mental health issues exist in relation to one or both of the parents or children; There are difficult and complex issues involved in the matter.

The Independent Children’s Lawyer is usually employed by the Legal Aid Office (Victoria) and is usually paid by the Legal Aid Office. However, if you and your partner are of a sound-financial position, then you may be ordered to meet the costs for the Independent Children’s Lawyer.

The Independent Children’s Lawyer’s role in the Court proceedings is as follows:

• To assist the Court at all times in the preparation and determination of your matter;
• To act in the child’s best interests;
• To primarily ensure that all proper evidence is put before the Court that is relevant to the determination of the matter;
• To help facilitate negotiations and discussions between the respective parties and to help the parties reach a solution which is the best for the child;
• In certain circumstances to talk to the child involved;

Usually, the Independent Children’s Lawyer will not interview the children regularly at length.

If there are concerns about the children’s wishes or any other family dynamics, the Independent Children’s Lawyer may employ independent experts including Social Workers and Psychiatrists to provide reports and to give evidence to the Court.

If you have a Solicitor, then your Solicitor will usually deal directly with the Independent Children’s Lawyer.

These are similar to pre-nuptial agreements, but are signed before, during or after a marriage. Under the Sections 90B – 90D of the Family Law Act, financial agreements cover the following:

• division of property, finances and debts after a marriage breakdown
• superannuation
• spousal maintenance
• Other incidental issues.

For financial agreements to be legally binding, both parties must have signed the agreement and have received independent legal and financial advice before signing.

If no agreement can be reached between yourselves

If no agreement can be reached between yourselves, we can undertake negotiations on your behalf with your spouse/partner or with their legal representatives.  This often results in a speedy and amicable resolution and the agreement can be easily formalised to provide certainty.

If however, despite our best efforts negotiations fail and no agreement can be reached then an Application for property orders must be submitted to either the Family Court or the Federal Magistrates Court.

An Application must usually be made within 12 months of your divorce becoming final or within 2 years of the date of separation if in a De Facto relationship.

The decision is then made through a Court Hearing. Both parties are expected to fully disclose their respective financial circumstances. A failure to make proper disclosure of a relevant matter is taken very seriously.

Consent orders are a written agreement that are formalised and approved by the Court and thus are legally binding.  To file Consent Orders, neither you, nor your spouse/partner, need to go to Court.
Consent orders can deal with the following:

• The transfer or sale of property
• The splitting of superannuation
• Spousal maintenance.
• Living arrangements for children

Consent orders are filed with the nearest Family Law Registry. The Court must be satisfied that the orders are properly drafted and that the terms of the agreement are “just and equitable”, before it will approve them.