Gillard Family Lawyers’ Accredited Family Law Specialists have compiled 50 of the most frequently asked questions relating to Family Law.
What is Family Law?
Family law is a term used to describe legal disputes or issues which arise out of family relationships and breakdowns. Family law largely focuses on divorce, de facto separations and disputes involving property or parenting arrangements. The purpose of family law is to assist individuals who cannot agree on matters post separation and to protect the welfare of children who are affected by family breakdowns. Although outcomes and decisions will vary according to each set of circumstances, all family law disputes are governed by the Family Law Act 1975.
What does Family Law cover?
Family law covers all matters relating to children and property following a divorce or breakdown of a relationship. It also covers issues such as paternity, artificial conception procedure, grandparents’ ability to seek orders, stepparents, child support, parentage disputes, relocation, family violence, prenuptial agreements or any other dispute arising from a separation.
What is the Family Law Act 1975 ?
The Family Law Act 1975 (“The Act”) is the written legislation of Australia which covers separation, divorce, property settlements, parenting arrangements and all issues arising out of family law matters. The Act came into effect on 1 January 1976, essentially replacing the Matrimonial Causes Act 1959, which required fault (for example adultery) to be evidenced for parties seeking a divorce. This is not a requirement today.
From time to time there are significant amendments to the Family Law Act 1975. For example:
In 2006 there were amendments which revealed a progression towards compulsory mediation prior to parenting Court proceedings.
In 2009, amendments to the Act meant that de facto couples had the same rights as married couples in relation to property settlements.
A copy of the Family Law Act 1975 can be found at: https://www.legislation.gov.au/Details/C2019C00182.
How much does a family lawyer charge?
Most lawyers charge between $300-$650 per hour. A lawyer’s hourly rate is usually dependent upon their experience, expertise in a certain legal field or the State in which they practice. Lawyers’ fees are usually billable in accordance with the time spent on a matter and overall work completed. A family lawyer’s hourly rates and fees are disclosed in a costs agreement provided to clients prior to work commencing on their matter. Gillard Family Lawyers offer a fixed fee initial consultation of $220.
What is a Family Law specialist?
An Accredited Specialist in family law is a lawyer who has engaged in family law practice for a minimum of five years full time and who has also passed a rigorous set of exams and assessments. The tests assess the lawyer’s competency and skills in the area of family law and if passed, they are formally accredited to practice family law as a qualified specialist in their jurisdiction. Only 6% of solicitors in NSW have Specialist Accreditation. There are only 23 family law Accredited Specialist in Family Law in Newcastle, and Gillard Family Lawyers is proud to have 2 of them working in our team (Michelle Gillard & Luke Shearston).
Is Family Law free?
To receive advice or assistance from a family lawyer, you will need to pay in accordance with their hourly rate or fees disclosed. If you cannot afford this, Legal Aid NSW does offer grants of legal aid to those who satisfy the requirements of Legal Aid. Upon making a Legal Aid application, Legal Aid will assess your income, assets, expenses and the merit of the dispute. If you are successful in obtaining a Legal Aid grant, your lawyers’ fees will be paid for you, or you may need only to pay a small contribution. There are also community legal centres that may be able to assist you if you do not qualify for Legal Aid.
What is family law mediation?
Family Law mediation is a form of alternative dispute resolution which allows you and the other party an opportunity to discuss issues in dispute to attempt to reach an agreement outside of the courtroom. Family law mediation is available for those wishing to finalise parenting arrangements, property settlements or any other matters relating to family law.
Mediation is now a compulsory pre-filing obligation in relation to parenting matters following amendments to the Family Law Act 1975 in 2006. Any party wishing to file proceedings relating to children must attempt mediation and be issued with a Section 60I certificate. This certificate is to be provided to the Court at the time of filing to demonstrate that this obligation has been complied with. If you refuse to participate in family law mediation the other party will receive a Section 60I certificate and may commence court proceedings against you.
Whilst this obligation only applies to parenting proceedings, mediation is a strongly encouraged avenue for property and financial disputes too. From the 1 September 2021 parties that file property proceedings in court will need to sign a Genuine Steps Certificate confirming they have produced disclosure and made attempts to settle their dispute for example, by attending mediation. We have two Accredited Mediators at Gillard Family Lawyers who are available to facilitate mediations for both property settlement and parenting arrangements.
How much is Family Law mediation?
Family law mediation costs, on average, $1,500-$5,000. The fee can vary depending on the issues in dispute, the mediator’s experience and how long the mediation goes for. This fee is generally divided equally between the parties.
If you cannot afford mediation and meet the financial requirements to be eligible for Legal Aid, you may be able to receive a grant from Legal Aid to participate in a Family Dispute Resolution Conference.
How many Family Law cases go to trial?
Not all family law cases proceed to a trial. You can reach an agreement at any stage of the proceedings or prior to commencing proceedings. If an agreement is reached, your lawyer can draft orders setting out the agreement reached and, once signed by both parties and provided to the Court, the trial will not need to proceed. It is common to settle family law matters before trial, with only a small percentage of matters commenced in court proceeding to trial.
What is the difference between the Federal Circuit Court and the Family Court?
There are differences between the Federal Circuit Court and the Family Court, but these courts are being merged from 1 September 2021. There will now be a single-entry point when filing family law matters and Registrars will decide if your matter proceeds in division one or division two of the court.
After 1 September 2021 court forms will change and there will be uniform rules that apply to both divisions of the court.
What is the difference between the Federal Circuit Court and the Family Court?
On the 1 September 2021, the Federal Circuit Court and Family Court merged. It is now referred to as the Federal Circuit and Family Court of Australia. There is now a single-entry point when filing family law matters and Court will decide if your matter proceeds in division one or division two of the court. Division one is a more specialised division, and most cases will be heard in division 2 of the court. From the 1 September 2021 court forms changed and now new rules apply to both divisions of the court.
Are family law courts still open?
The outbreak of COVID-19 did cause Courts to close to the public for a period of time, however all family law matters continued to be heard via Teams or telephone. Due to the easing of restrictions, family law courts are hearing matters face to face again however some Judges have continued to keep directions hearings or brief mentions over telephone. If you are unsure whether your matter is being heard in person or over the phone, you will need to check your Court Orders, make enquiries with the court registry where your matter is being heard or ask your lawyer.
Can family law decisions be appealed?
Family law decisions can be appealed if there are grounds to do so. You cannot file an appeal in a family law matter simply because you are unhappy with the result. Appeal applications may only be filed if the Judge made a significant error in applying the law to your case. The appeal process has a strict procedure, including a 28-day period from the date of the final orders in which you must lodge the application. We suggest seeking prompt advice from one of our family lawyers if you are wishing to make an appeal.
Are family law cases public record?
All family law cases that proceed to a hearing are part of the public record. However, to protect the parties’ confidentiality, the names of the parties are anonymised. Family law cases and judgements are accessible through online legal resources and may also be published in written textbooks or materials.
Is family law the same as divorce?
Divorce is an aspect of family law and describes the formal process of dissolving a marriage.
There is a no-fault divorce system in Australia and divorce can be granted where it is shown that the marriage has irretrievably broken down and there is no likelihood of the couple reconciling. It is a requirement that you must be separated for a minimum of 12 months before a divorce application can be filed. You can still get divorced if you were living under the same roof as your ex-husband or wife, however you will need to file an Affidavit of yourself and a third party who can also state that you were separated, notwithstanding that you were living under the one roof.
Once a divorce application is filed, your matter will be heard in a brief court hearing. You will only need to attend the divorce hearing if there is a child under the age of 18. A Divorce Order will issue one month and one day after the divorce hearing.
Although it is common for couples to divorce after separation, there is no obligation to. You can still negotiate or commence proceedings in relation to children or property without being divorced. Once you are divorced, you only have 12 months from the date of the divorce to commence proceedings for property settlement.
What is family violence?
Family violence is defined as violent, threatening or coercive behaviour that can present itself through physical, emotional, financial or sexual abuse. Family violence can have significant consequences on the wellbeing of a child and the Court takes any allegations of family violence into account when determining parenting orders. If there are family violence orders currently in place, the Court will also do its best to ensure that parenting orders do not pose a risk to the safety of any party or subsequent children to the proceedings.
Family law and child custody?
Child custody is not a term used in the Australian family law system. Instead, the care and legal responsibility a parent has in relation to a child is referred to as Parental Responsibility. Both parents have Parental Responsibility for a child post separation until a court makes an order otherwise.
Once Court proceedings are commenced the court will make an order for either Equal Shared Parental Responsibility or Sole Parental Responsibility. There is a presumption that Equal Shared Parental Responsibility and equal time is in the best interest of a child unless it can be rebutted or not deemed to be in the best interests of the child.
If the Court makes an order for Equal Shared Parental Responsibility, then all major long-term decisions with respect to the child will need to be made jointly. If only one parent is ordered Sole Parental Responsibility, then they are not obliged to consult the other parent on major long-term decisions.
An example of when a Sole Parental Responsibility order might be made is if there is a high level of conflict between the parents, meaning they would lack the ability to effectively communicate on the child’s needs.
If there is evidence of family violence or high conflict, then the court is unlikely to make an order for equal time. The court will order limited time, no time or substantial and significant time.
The court can order supervised time, but the court is unlikely to order supervised time until the child turns 18. Therefore, the parent that has supervised time will need to address their issues prior to the final hearing or the court is likely to order no time.
What is substantial and significant time?
The court will make orders using terms such as who the child “lives with” and how often they “spend time” with the other parent. Substantial and significant time is defined in the Family Law Act. It is a definition separate to that of ‘equal time’ and must be considered if equal time is not appropriate. The Act defines substantial and significant time as time on the weekend, but also time during the week so that each parent is involved in the daily life of the children. It also allows for parents to spend time with the children during school holiday periods and on special occasions in the child and parent’s life.
Can I get equal time?
You can agree to an equal time arrangement with the other party. This is where the children typically spend one week with one parent, and the following week with the other parent. Where there is a dispute before the Court, an equal time arrangement is less common. This is because the parents will need to be able to communicate with each other regularly in an equal time arrangement in relation to things such as after school activities, appointments, excursions, and other school-based activities and this is much more difficult in cases of high conflict.
Equal time orders can be very difficult to obtain through the courts and it is recommended that you get legal advice from a specialist family lawyer before filing an application for equal time or to continue to run your case as an equal time case. Significant consideration needs to be given on the drafting of your affidavit. For example, if you file an affidavit that does nothing more than bring to the court’s attention how ‘bad’ the other parent is and how poor communication is, you may find you end up with limited time instead of the equal time you where after.
What is equal shared parental responsibility?
There is a presumption under the Family Law Act that it is in the best interest of a child for the court to make an order for parents to have Equal Shared Parental Responsibility. What this means is that both parents must agree on long term decisions regarding a child such as their name, where they go to school, religion and major health issues. The presumption for the court to make an order for Equal Shared Parental Responsibility can be rebutted where the allegations of abuse or family violence are established or it is not in the best interest of the children.
What is child support?
Child support is a scheme implemented to ensure the needs of a child are financially met following the breakdown of a relationship. Child support is generally payable to the primary carer of the child (who the child lives with) by the parent who does not live with the child. Child support payments can be self-managed or monitored by Child Support – Services Australia. To determine how much child support is payable or owing, you can use the child support estimator at Child Support Estimator (csa.gov.au) The estimator assesses the parent’s income and expenses, to determine how much is payable to the other parent. The estimator is just a guide and is not a binding assessment of child support and does not replace a formal assessment by Child Support.
If the other parent refuses to pay child support or they are not paying the necessary amount, you can seek advice from one of our family lawyers to discuss your options.
What is a property settlement?
A property settlement is the process in which you and your ex-partner divide property following separation.
Legislation sets out a positive obligation on both parties to make full disclosure with respect to their assets.
When determining the division of an asset pool consideration is given to financial contributions both initial and during the relationship, non-financial contributions and contributions as homemaker and care of children. The future needs of both parties are also considered, for example, the health of the parties and income earning disparity.
There is no law that stipulates that asset are to be divided 50/50. By looking at all the above considerations it is easy to see that each case is difference. Your circumstances are unique, and it is imperative that you seek legal advice before settling your matter.
A property settlement can be formalised by way of Consent Orders or a Binding Financial Agreement. At Gillard Family Lawyers we always encourage clients to document their settlement by way of Consent Orders.
Can I document my settlement using a Binding Financial Agreement?
Legislation provides that you can document your settlement using a Binding Financial Agreement, but it is imperative that you realise that by doing so you are opting out of the Courts jurisdiction. This can have implications in enforcing your agreement. You can also enter into a Binding Financial Agreement prior or during a relationship often referred to as a Prenuptial Agreement.
Most specialised family lawyers will advise you against singing a Binding Financial Agreements because it can easily be set aside by no fault of your own or your solicitor. It provides you with little security and is often not just and equitable. It can be set aside purely on the conduct of the other party and their solicitor. For example, if the other party’s solicitor did not give them the required advice as set out in legislation. If there is a change of circumstance after the Agreement is made it can also be set aside. For example, if you have children together.
Family law and superannuation?
Your superannuation and the superannuation of your ex-partner is considered an asset of the relationship.
Superannuation including defined benefit pension schemes can be split.
Can I move with my child?
If you wish to relocate with your child, you will need to discuss this with the other parent and see if you can come to an agreement. If you are unable to agree, you will need to commence court proceedings to seek an order that the child be permitted to relocate. The primary consideration in relocation cases is in the best interests of the child.
Consideration will also be given to your ability to foster an ongoing relationship between the child and the other parent. The age of the child is an important consideration. Another relevant factor is the other parent’s ability to also relocate to the area you proposed to move to.
If you wish to relocate, or the other parent to your child has unilaterally relocated, you should need to seek advice from a family lawyer immediately.
How long will my family law matter take?
There is no fixed timeframe in which family law matters are settled. How long your matter is going to take depends on the issues in dispute, whether any reports or third-party documents are required and how both parties cooperate with the process. A short timeframe may be a matter of months however some matters may take years.
An experienced family law solicitor that has matters in court often will be able to give you an indication of current time frames for you matter to move through the court system.
If you are negotiating a property settlement outside of court, then the most common delay is non-disclosure issues and valuations. Once those are obtained parties can commence making offers or attend mediation.
How has COVID-19 affected family law?
The coronavirus pandemic has undoubtedly had a significant impact on families sharing care arrangements or those currently amidst family law court proceedings. The most important thing to remember however is that parenting arrangements can still continue for most families, notwithstanding restrictions in place from time to time. Court appearances are continuing, with the majority of appearances being moved to telephone or electronic means.
Is domestic violence relevant in family law?
Domestic violence, referred to in the Family Law Act as family violence, is relevant in parenting and property matters.
In parenting matters if allegations are made out then the Court will ensure that Orders made that are in the child’s best interests including the need to protect children from unacceptable risk of harm.
For property settlements, family violence is considered if it affected one party’s earning capacity or contributions significantly.
What is an initiating application?
An initiating application is a court document filed in family law proceedings to commence court proceedings. From the 1st September 2021 the name of this form will change. Included in the form should be the interim or property orders that you want the Court to make on your behalf.
What is the difference between interim and final orders?
Often there is a lengthy delay between the time that you commence proceedings and a final hearing. The court may need to make interim orders which sets out arrangements which will be in place until the final hearing. For example, an injunction against a party selling assets or interim parenting orders.
What is a Binding Financial Agreement?
A Binding Financial Agreement is a legal document which can be entered into before a marriage, during a relationship or following separation. There are strict requirements for the financial agreement to be binding and it is important that your financial agreement has been carefully drafted to ensure that it is not set aside in the future. Binding Financial Agreements are only binding on the parties if the agreement has been signed by all parties and prior to signing each party was provided with independent legal advice from a lawyer about the effect of the agreement and the rights of the party.
What are consent orders?
Consent Orders are legally enforceable orders that can be entered into before, or during, court proceedings. Consent Orders are filed with the Court with the agreement of both parties.
Can a grandparent seek custody of a child?
A grandparent, or any person concerned with the welfare of the child is able to commence parenting proceedings pursuant to the Family Law Act, including step-parents.
What do I have to disclose in a property settlement?
It is important to provide “full and frank disclosure” in any property negotiations. Full and frank disclosure refers to the disclosure of all assets, income or liabilities held in either name. Examples of documents are payslips, home loan statements, bank account records or superannuation balances. It is important that the rules of full and frank disclosure are complied with, as a failure to do so may constitute grounds to set Consent Orders or a Binding Financial Agreement aside.
Do I have any rights if we were not married?
Yes. Amendments to the Family Law Act in 2006 allowed for de facto couples to have the same legal rights that a married couple would have.
What if I don’t want to sell the house?
It is important to establish to asset pool of the relationship to answer these questions. Once you can establish your net pool, you can work out what payment you would need to make to the other party to keep the home and refinance it into your name. You should make enquiries with a bank or broker about your lending capacity because it will assist your lawyer in negotiation. It may be that there are other assets that can be offered to other party and there is no need for a cash payment.
I stayed home and cared for the children, am I still entitled to a property settlement?
Yes, this is a very important contribution and not given any less weight than the contribution of a breadwinner.
What is an Independent Children’s Lawyer?
An Independent Children’s Lawyer (ICL) is appointed in complex parenting matters. An ICL is an experienced family lawyer who has completed further training and study which qualifies them to act as an impartial representative of the child’s best interests in parenting disputes. Michelle Gillard and Luke Shearston have both been appointed to the NSW Legal Aid panel of Independent Children’s Lawyers and regularly represent children in difficult complex parenting matters.
Can I talk to people about my family law matter?
Going through a family law matter can be stressful and it is important that you have a support network during these times. You should be mindful, however, that you are not allowed to publish or share the contents of court documents and or court material to anyone else. Doing so could cause you to be convicted of an offence, which is punishable by imprisonment of up to one year.
What is parental responsibility?
Parental responsibility is the term used to describe legal responsibility a parent has over a child without a court order. If you have a child, you currently have parental responsibility for them without the court making any order. However once court proceedings are commenced, the court will make an order for either equal shared parental responsibility or sole parental responsibility.
Do I have to be divorced to start family law proceedings?
You do not need to be divorced to start family law proceedings in relation to children or property. In fact, there are many couples who may go through a court matter to settle issues relating to parenting or property yet never formally get a divorce.
Are there any time limits for filing family law documents?
Once a divorce order has been made, you or the other party have only a period of twelve months to seek orders relating to a financial/property settlement. You do not need to have the matter settled in twelve months; however, you must commence court proceedings before this time period lapses.
If you were in a de facto relationship, you must commence court proceedings for property settlement within 2 years of the date of your separation.
Can my ex-partner make a claim on assets in my name only?
All assets and liabilities irrespective of who’s name they are in, will be taken into account when calculating the division of property. They will either form part of the nett asset pool or be considered a future financial resource. The court will assess the contributions made by each party to each asset. It is possible to make non-financial contributions to assets for example, homemaker contributions like cleaning maintaining a property each week.
Can my ex-partner and I go to the same lawyer if we are amicable?
No, it is not possible. Even if you and your ex-partner are on good terms and amicable it is a conflict of interest for the solicitor to represent both of you.
If you document, your property settlement by way of a Binding Financial Agreement you must both be legally represented.
What is a Chapter 15 expert?
A single Chapter 15 expert is commonly an expert psychologist or psychiatrist engaged by the parties to prepare a report as to the issues in dispute. The expert is appointed jointly and does not provide a report for one party individually and the costs are generally shared equally. The Chapter 15 expert report can be utilised as a privately funded family report. In a lot of cases the parties can obtain a report from a Chapter 15 expert much more quickly than a court appointed family report.
What is a family report?
A family report is prepared by a family consultant or Chapter 15 expert. It is a comprehensive report detailing the issues in dispute, observations and recommendations. It is prepared following interviews conducted by the report writer and each of the parties individually, including the children, and interactions between you and the children. The family report assists the Court to make final parenting orders. It is only one piece of evidence and if a report is for or against your case it is important to have a good lawyer representing you to ensure the report writer is properly cross examined.
It is possible to get a shadow expert report. It can be costly but worth considering if a report is not favourable to your case.
What is a Child Inclusive Memorandum?
A Child Inclusive Memorandum (“the Memorandum”) is a brief report written by a family consultant usually early in the proceedings. The family consultant meets with the parties and the children separately and details the issues in dispute, observations and makes some preliminary recommendations. The appointments last for approximately 30 minutes to an hour. The Memorandum assists the Court to make interim parenting orders pending a final hearing.
From the 1 September 2021 a family consultant will be referred to as Court Child Experts and the memorandum will be replaced with a slightly more fulsome report known as a Child Impact Report.
What happens at a Directions Hearing?
A directions hearing is a procedural appearance before the Court. You will likely have a few during your proceedings. The directions hearing is an opportunity to assess where the matter is at and what needs to be done to progress the matter forward towards a final hearing. Examples of orders that are made at a direction’s hearing for parenting matters include orders for drug testing, family reports and mediation. Orders that might be made in a property proceeding include orders for the parties to exchange financial disclosure, or to obtain valuations of property.
What happens at an Interim Hearing?
An Interim Hearing is a short hearing before a Judge, and the Rules set out that the hearing should be limited to two hours. The parties are generally restricted to the evidence contained in their Affidavit, the material produced under a subpoena and submissions made to the Court. You may be able to hand up a short case out line or skeletal outline of your submissions summarising the evidence you rely on and a reference of where in your affidavit or the subpoena material the judge can find that evidence.
Although it is a “hearing”, the Judge is somewhat limited in the decisions they can make because they cannot easily make findings of fact. There are however some limited circumstances where a judge can make findings of fact.
What is the difference between a Parenting Plan and Consent Orders?
Both documents formalise an agreement made regarding parenting arrangements however they are very different.
A Parenting Plan is an informal document drawn up between the parties setting out the arrangements for a child to spend time with each parent. It is not binding on the parties however, in the event that there is a breach of the agreement you cannot file contravention proceedings against the breaching party.
Consent Orders are made by the Court; however, you will not need to attend court in order for them to be made. Consent Orders are binding on the parties until the child is 18. If you want to change the orders it will need to be by consent, or you will need to establish to the court that there has been a significant change in circumstances or fact. If a party breaches an order, then a contravention application can be filed against the contravening party.
I have just been served with an Apprehended Violence Order for the protection of my ex-partner, what does that mean for my parenting orders?
Orders dealing with parenting arrangements are made by a Federal Court, whereas an Apprehended Violence Order (AVO) is generally made by a State court. Accordingly, the family law orders will take precedence over the AVO, but only where there is an inconsistency. For example, if the AVO has a condition that you must not contact the other parent, but your orders provide for you to call the other person’s phone to have telephone contact with the child at 2pm on Saturday – you may only phone the other parent’s number at 2pm on Saturday. If you attempt to contact the other party’s number at any other time this would be a breach of your AVO conditions.
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