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The breakdown of a marriage or relationship can be one of the most traumatic and upsetting times in a person's life. The emotional stress can have long term effects on the parties, as well as other family members and, in particular, children. During this time, it is important that you receive the right legal advice and guidance on your rights and obligations relating to a variety of matters, including parenting and financial issues. The law relating to matrimonial and other personal relationship disputes is complex and constantly changing. We have established a dedicated and highly experienced team, including an Accredited Family Law Specialist, who will provide you with accurate and easy to understand advice on the following important matters:
Our Family Law Team We work as a team, putting our clients first. We are proactive, responsive and accessible at all times. Nicole Berg – Accredited Family Law Specialist Grace Lawson – Solicitor Rita Skinner – Personal Assistant Email: familylaw@whd.com.au Family Law Links Family Court of Australia Federal Magistrates Court of Australia Supreme Court of Queensland Child Support Agency Centrelink Family Relationships Relationships Australia Kinections Mediation & Alternative Dispute Resolution Litigation can be stressful and expensive and for most litigants it should be the last resort. A preferred course of action is mediation or negotiation through one of the Alternative Dispute Resolution Methods. In fact, in matters involving parenting issues, mediation is generally compulsory before court proceedings can be commenced. The purpose of mediation (or one of the other Dispute Resolution Methods) is to assist the parties to reach an agreement in relation to all of the matters in dispute. Whether privately conducted by a registered mediator, or whether conducted at Relationships Australia or one of the Government run Relationship Centres, mediation has proven to be highly successful. Parties who reach an agreement through mediation retain control over the terms and conditions of their agreement, avoid lengthy and emotionally draining litigation, and save significant costs. If you require further information about mediation or other Dispute Resolution Methods, please contact our office and one of our family lawyers will be able to assist you. Financial Agreements are Contracts that deal with the division of assets and other financial matters of a separating couple. There are a number of different Financial Agreements which may be entered into before marriage, during marriage, after separation and after divorce. De facto and same sex couples may also enter into Financial Agreements before cohabitation, during their relationship, or after separation. Click here for more information concerning de facto and same sex relationships and property settlement. The purpose of the Agreements is to allow the parties to decide how their finances are to be dealt with and how their property is to be divided upon separation. The parties effectively contract out of the provisions of the Family Law Act (for married couples) and the Property Law Act (for de facto couples) so that if they separate their assets are divided in accordance with their Agreement and not the Law. There are strict rules relating to these Agreements that must be followed to ensure that the Agreements are valid and not set aside on the Application of one party who may later consider the Agreement unfair, incomplete or incorrect. Our family lawyers will be able to provide you with independent legal advice in relation to a Financial Agreement. De facto and Same Sex Relationships - Property Settlement Parties who cohabit together in de facto and same sex relationships may avail themselves of the provisions of Part 19 of the Property Law Act which governs the division of property on the breakdown of a de facto relationship. There are specific provisions which dictate when a legal “de facto relationship” actually exists, and therefore which de facto and same sex couples will be able to avail themselves of these provisions. There are certain time limitations that govern when a party may apply to the Court for Orders pertaining to their property settlement, or other Orders such as Injunctions. We recommend that you obtain independent legal advice and invite you to contact our family lawyers. The principles applied to de facto and same sex couples in determining how their assets and liabilities should be divided between them are similar to those governing married couples. When determining how certain assets should be divided between couples, it is necessary to determine the value of the pool, the contributions of each party to the asset, and whether there are any factors to consider that would result in one party receiving an adjustment of the pool in their favour. The end result must be fair and equitable. Determining the value of the pool may not always be simple. There may be complex business structures, companies or trusts set up. Valuing such structures may be costly and lengthy process. This becomes more difficult in cases where parties have been separated for some time and a number of transactions occurred post separation. Contributions may also be difficult to determine; for example, in cases where one party may have inherited a sum of money, won an asset or a sum of money, or where one party’s skill and expertise resulted in an asset increasing in value. In other cases, there may be arguments of wastage of funds, whether by gambling or risky business ventures. Some parties may consider that their financial contribution is of more importance than the home maker contribution of the other party. These and other factors allow lawyers and the court to determine whether one party made greater contributions to a particular asset than the other. Further adjustments of property may be made in favour of one party, where their future needs outweigh those of the other party. Overall, the end result must be fair and equitable for both parties. We invite you to contact our family lawyers for further information. Asset Protection (Injunctions) De facto couples are able to utilise those provisions which allow them to take the necessary steps to protect their interests in a particular asset. This is particularly important for a party who may have agreed that a particular asset of the relationship be registered in the other party’s name alone, and now needs to protect their interest in this asset. A party in these circumstances may be able to lodge a caveat against a title of a property in which they have an interest, or obtain an injunction preventing the other party from disposing of assets such as cash or property of sentimental value. A party may also obtain an Order of the Court that requires a party to do certain things to maintain or improve the value of an assets, for example to continue to manage a business, or discharge their duties as a Director of a company or a trustee of a family trust. We invite you to contact our family lawyers for further information. Complex Matters involving Companies, Businesses, Parthernships and Trusts Although a couples’ business structures may appear complex, it is possible to determine the value of these assets, and each party’s respective contributions to these assets. In many cases, forensic accountants are appointed by the parties or the Court to provide their expert opinion on the issues that may be in dispute between the parties. Our highly experienced family lawyers, who have represented clients with complex business structures, will be pleased to provide you with the right legal advice. Separation Agreements and Cohabitation Agreements De facto couples may enter into Agreements which provide how their finances are to be dealt with, and how their assets and liabilities are to be divided, should they separate. Couples who are contemplating moving in together, or have already commenced living together, may enter into a Cohabitation Agreement. Couples who have separated may enter into a Separation Agreement. There are strict rules relating to these Agreements that must be followed to ensure that the Agreements are valid and not set aside on the Application of one party who may later consider the Agreement unfair, incomplete, or incorrect. Our family lawyers will be able to provide you with independent legal advice in relation to a Financial Agreement during or after marriage. Matrimonial Property Settlement Parties who marry and subsequently separate may avail themselves of the provisions of the Family Law Act which provides for how the finances of separating couples are to be dealt with. There are certain time limitations that govern when a party may apply to the Court for Orders pertaining to their property settlement, or other Orders such as Injunctions. We recommend that you obtain independent legal advice and invite you to contact our family lawyers. The principles applied to married couples in determining how their assets and liabilities should be divided are set out in the Family Law Act. There are numerous cases which further explain the law, and which are relied upon by lawyers and judges. When determining how certain assets should be divided between couples, it is necessary to determine the value of the property pool, the contributions of each party to the asset and whether there are any factors to consider that would result in one party receiving an adjustment of the property pool in their favour. The end result must be fair and equitable. Determining the value of the property pool may not always be simple. There may be complex business structures, companies, or trusts set up. Valuing such structures may be costly and lengthy process. This becomes more difficult in cases where parties have been separated for some time and a number of transactions occurred post separation. Contributions may also be difficult to determine; for example, in cases where one party may have inherited a sum of money, won an asset or a sum of money, or where one party’s skill and expertise resulted in an asset increasing in value. In other cases, there may be arguments of wastage of funds, whether by gambling or risky business ventures. Some parties may consider that their financial contribution is of more importance than the home maker contribution of the other party. These and other factors allow lawyers and the court to determine whether one party made greater contributions to a particular asset than the other. Further adjustments of property may be made in favour of one party, where their future needs outweigh those of the other party. Overall, the end result must be fair and equitable for both parties. We invite you to contact our family lawyers for further information. Asset Protection (Injunctions) Parties are able to utilise those provisions which allow them to take the necessary steps to protect their interests in a particular asset. This is particularly important for a party who may have agreed that a particular asset of the marriage be registered in the other party’s name alone, and now need to protect their interest in this asset. A party in these circumstances may be able to lodge a caveat against a title of a property in which they have an interest, or obtain an injunction preventing the other party from disposing of assets such as cash or property of sentimental value. A party may also obtain an Order of the Court that requires a party to do certain things to maintain or improve the value of an asset, for example to continue to manage a business, or discharge their duties as a Director of a company or a trustee of a family trust. We invite you to contact our family lawyers for further information. Complex Matters involving Companies, Businesses, Partnerships and Trusts Although some business structures may appear complex, it is possible to determine the value of these assets, and each party’s respective contributions to these assets. In many cases forensic accountants are appointed by the parties or the Court to provide their expert opinion on the issues that may be in dispute between the parties. Our highly experienced family lawyers, who have represented clients with complex business structures, will be pleased to provide you with the right legal advice. Superannuation is considered to be an asset of the marriage and can be split so that part, or all, of one party’s superannuation interest is rolled over to the other. Superannuation cannot be split between de facto couples, and is not viewed as property, but only as a financial resource. There are specific rules which govern superannuation splitting provisions. We recommend that you obtain independent legal advice in this regard. Our family lawyers will be pleased to assist you. In some circumstances parties may be able to obtain spousal maintenance, whether as a lump sum or regular payments, from the other party. Unfortunately, just because one party may demonstrate a need to receive spousal maintenance from the other party, it does not mean that such an Order would be made by the Court. The other party must also have the capacity to pay spousal maintenance. Applications to Court for Spousal Maintenance can be costly and it is therefore prudent for parties to attempt to reach an agreement in relation to this issue, and if possible all other issues in dispute, outside of Court. There are also time limitations that apply in relation to making an Application for Spousal Maintenance. Our family lawyers can provide additional advice in relation to spousal maintenance when you contact our office. Many parents will agree that it is in the children’s best interests for the parents to agree on their living arrangements. Where parents cannot reach an agreement, they may have no option but to ask the Court to do so. The Family Law Act 1975 sets out the responsibilities of all parents, and their paramount consideration is to determine what is in the best interests of the child. The Family Law Act 1975 has also recently undergone significant changes, developing a new approach to parental responsibility. The Family Court and the Federal Magistrates Court now take the approach that both parents have equal shared responsibility for parenting. However, this does not mean that children will spend equal time with both parents. There are a number of matters that the Court must take into consideration when determining a child’s living arrangements. It is advisable that parents who are considering making an Application to Court obtain detailed and proper advice about the likely Orders that could be made in their particular case, before making such an Application.As individuals, we all have different beliefs about what is in our best interests, and parents also have their own views on what is in the best interest of their child. The Court does not always share this view. Once again, it is recommended that parents contemplating making an Application to Court seek legal advice about how the Court is likely to view their case. The Court prefers that parents share their parental responsibility and therefore consult each other on all decisions involving their children. However, where parents cannot agree, the Court will make Orders in relation to a range of issues, such as where the child lives, how much time the child is to spend with each parent, which school the child will attend, the religious education the child is to have, and whether or not a certain medical procedure should be performed on the child. Litigation can be costly and emotionally draining, in particular where children are involved. It is imperative that you obtain legal advice, and make genuine efforts to resolve your dispute by mediation, before making an Application to Court. Our family lawyers can provide you with a range of options that may assist you in resolving your dispute out of Court, as well as advice about the likely outcome of your case should you contemplate, or find yourself on the path of litigation. Parenting Agreements and Orders Parents may enter into written Agreements setting out as many details as they like about the care of their children. It is important that parents understand that such Agreements may not be enforceable by a Court should they be breached by either parent. Their workability depends highly on the willingness of both parents to follow them. Parents may decide to have their agreement in the form of a Consent Order, which can be enforced by the Court should it be breached. Where parents cannot reach an agreement at all, and proceed to Court, then the Court will make Orders with respect to the issues in dispute. These Orders must be complied with and carry heavy penalties where they are breached without a reasonable excuse. Parents are not the only parties who may apply to the Court for Orders pertaining to their children. Any person concerned with the care, welfare or development of the child, for example, grandparents, may apply to the Court. Our family lawyers can guide you in the type of Orders that you may include in your Agreement or Consent Order, or the type of Orders that you should seek should Court be your last option. Please contact us for further information. It is prudent for parents contemplating relocating with their children, without the consent of the other parent, to obtain legal advice before any steps are taken to relocate. This is particularly relevant where the relocation would affect the current, or otherwise agreed, arrangements for the children to spend time with the other parent. If consent of the other parent is not obtained, it is not advisable for the parent to relocate of their own volition. The Court can, and in many cases has, either stopped the relocation, or ordered the return of the children. A parent wishing to relocate against the wishes of the other parent should obtain legal advice as to their prospects of success of obtaining the Court’s permission to relocate, before making the Application. If you are a parent who is concerned that the other parent is intending to relocate with the children against your wishes, then we recommend that you obtain urgent legal advice about the options available to you. Please contact our family lawyers for further information. There may come a time in a parent’s life where the circumstances have changed so significantly that a change of name of the child may appear to be in their best interest. Changing a child’s name is not always simple, particularly where the other parent’s consent is yet to be obtained. It is recommended that parents either seek the other parent’s consent, or legal advice, before unilaterally changing a child’s name. This may prevent costly and emotional litigation should the other parent apply to set aside the change of name. Our family lawyers can provide you with further options should you wish to change your child’s name. Abduction and Removal of Children Should you become aware that your children are about to, or have been, removed from If the children have not yet been removed from the country then there are a number of steps that can be taken to prevent their removal. However, you must act fast. The faster that you act the better chances you have of preventing your children’s removal. Where children have already been removed from Similar steps can be taken where there is a risk that the children are being removed or have already been removed from one State to another State within If you are a parent contemplating the removal of children from the State or the Country, or a parent whose children have been removed, please contact our family lawyers for further advice. Both parents are responsible for the financial support of their children. Therefore, prior to or upon separation parents need to make financial arrangements for the children. It is recommended that parents reach an agreement in relation to how much, if any, child support is to be payable. However, it would be prudent for the parties to obtain advice either from a solicitor or from the Child Support Agency about the child support that should be payable, so that the agreement reached is fair to both parties. There have been significant changes to the Child Support Legislation over the last few years, with the most recent being introduced on 1 July 2008. For a comprehensive explanation of the changes, please contact the Child Support Agency. The changes to the Legislation affect issues such as the type of Agreement that may be entered into, whether it is to be registered or not, and calculation of the child support that is to be payable. There are also provisions for collection of child support, the steps to be taken to change the amount payable, and the steps to be taken if one parent has stopped paying child support. If you are a parent with a child support issue, or a child who has reached the age of 18 and wishes for child support to continue to be paid for you, contact our family lawyers for further advice. In cases where there are doubts whether the mother or the father of the child are the biological parents, either of them may request a DNA test for Parentage Testing. Where both parties agree to the test, the process is simple. However, if one party does not agree, then it may be necessary to take further steps. It is recommended that the party seeking a DNA test puts the request in writing, before an Application to Court is considered. It may also assist the parties to attend Mediation on this issue alone. There are a number of laboratories undertaking Paternity Testing, and their fees differ. All laboratories, however, maintain that the tests have between 99.99% and 100% accuracy in establishing if there is a genetic relationship between individuals. It can therefore determine who is, or who is not, the biological father, or mother, of a child. In fact, where a dispute arises between parties and the Court is asked to make a decision, the tests are generally ordered. For further information in relation to DNA testing, please contact our family lawyers. Parties who have already been through the Court system and obtained Orders, or parties who have obtained Orders by Consent, may find themselves in a position where the Orders are not being complied with. It is recommended that where an allegation is made that Court Orders are not being complied with, the parties first attempt to resolve this dispute by negotiations through correspondence, or mediation. Where the dispute is not resolved, or where Court Orders are still not being complied with, the party claiming the contravention will only be able to enforce the Orders by making an Application to Court. The Application, however, does not guarantee that the other party will be found guilty of contravening the Order, as they may have a reasonable excuse not to comply with it. For more information on what you can do if your Orders are not being complied with, what you need to do to prove a contravention, the defences available to the other person, and the penalties if they are found guilty of the contravention, please contact our family lawyers. Domestic Violence can have devastating effects on the family and, in particular, the children. A number of government agencies have been established to assist parties who have experienced domestic violence to cope with the trauma they may have gone through in the past. This, however, can only assist an individual once they have been removed from the situation. Individuals who currently find themselves in a domestic violence situation may apply for a Protection Order, or seek that the Police apply for the Protection Order on their behalf. The Protection Order is also referred to as an Apprehended Violence Order (AVO) or a Restraining Order. It is important that individuals who intend to apply for the Order understand the legal definition of Domestic Violence, what they need to show in order to obtain the Protection Order, and the different conditions they may ask to be included in the Order. Individuals who are served with a Temporary Protection Order should obtain urgent legal advice to understand what the Magistrates Court can do if they do not appear at the Mention, and to be aware of their options when they do attend at the Mention. Of more importance is the effect of breaching a Protection Order. Individuals who have been served with a Protection Order, or those who consented to the Order being made, should obtain legal advice about the effects of the Protection Order on their current employment, and the possible repercussions of breaching a Protection Order. Our family lawyers can provide you with detailed advice pertaining to Domestic Violence and Protection Orders. The risk of child abuse, whether physical, emotional, psychological, or sexual, remains within our society. Statistics show that a significant number of children have been and will be sexually abused. A number of separating couples have, in addition to dealing with the stress of a separation, found themselves in a situation where their child makes a disclosure that they have been abused. What follows in many such cases are lengthy and distressing investigations by the Department of Child Safety and the Police, and Family Court or Child abuse can be difficult to prove where the child is of a very young age and there is no direct physical evidence. Investigations and court proceedings are distressing for both parents, particularly for the parent accused of abusing their child who is actually innocent. The child who made the disclosure is also subjected to several interviews and various examinations. Indeed, once a disclosure is made, the path that follows is not pleasant. The Family and Federal Magistrates Courts demonstrate much sensitivity in such cases, making the best interests of the child a paramount consideration. Any Orders made by the Court attempt to protect the child as much as possible from the risk of abuse. They do so in such a manner that, where possible, maintains the child’s relationship with significant family members. It is important that parents who find themselves in similar circumstances obtain as much support as possible, and where necessary, counselling. Should Court proceedings eventuate, then parents in these circumstances will benefit from legal representation by family lawyers who are experienced in these cases. Our family lawyers can assist you further by providing you with the right legal advice and where needed, legal representation. Grandparents and Third Parties’ Rights The Family Law Act 1975 provides that children have the right to spend time with and communicate with people other than their parents, who are significant to their care, welfare and development. This may include grandparents and other relatives. Individuals who have been involved in particular children’s care and fear for their welfare may invoke the provisions of the Family Law Act and take certain steps to ensure the welfare of the children. Our family lawyers can provide you with further advice whether you are a third party who has concerns about children whom you have had a relationship with, or whether you are a parent who has been approached by a third party about the welfare of your children. Please contact our family lawyers for further information. Interstate/International family law matters Our family lawyers can assist you with any matrimonial or de facto matter, whether involving children or property, and irrespective of where you live. You may live overseas and have various assets overseas, and may be wondering whether these assets would be included in your property settlement with your former spouse or de facto partner. You may live in Indeed, this could invoke the jurisdiction of other countries and may complicate your matter. On the other hand, you may have children who have been removed from Australia, or you may be the one wishing to take your children overseas without the other parent’s consent. Whatever international family law issue you have, we will be able to assist you. We have represented, and continue to represent, clients who live overseas, and with the use of modern technology can provide you with legal representation of the same standard that would be provided face to face. For information relating to any of the matrimonial or de facto matters listed on our website, e-mail our family lawyers on familylaw@whd.com.au and we will respond forthwith. A Divorce is separate from property issues. Property settlement can be dealt with immediately after separation. You cannot apply for a Divorce immediately after separation. You must have been separated for a period of 12 months before applying for a Divorce. Your separation must fall within the legal definition of separation. There are also certain requirements you must meet if you have been married for less then one year, or if you have children under the age of 18. In most cases obtaining a Divorce is relatively easy. It becomes more difficult if you do not know where your spouse is and cannot locate them even after searches and investigations have taken place. Once you file your Application for Divorce you must wait for the Hearing of your Application, and, if the court is satisfied that you have met all of the requirements, you must wait a further month before receiving your Certificate of Divorce. The filing fee for an Application for Divorce is $432.00. There are circumstances where this fee can be waived. Our family lawyers have represented many individuals seeking a divorce, including those married overseas. Please contact us for further information. Validity and Annulment of Marriage In rare cases, parties who marry may later seek that the marriage be annulled. Our family lawyers have also acted for parties whose marriage needed to be validated before it could be dissolved. Should you require information in relation to the validation, invalidation, or annulment of your marriage, please contact our family lawyers.
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