Frequent Questions

The existence of a family violence order may be significant in proceedings before the Family Court, particularly where the Court is being asked to make a parenting order related to children spending time with each parent (formerly called a contact order).  It is important that a parenting order does not expose anyone to family violence.

Recent amendments to the Family Law Act 1975 (Cth) were intended to clarify the relationship between orders made under the Family Law Act 1975 requiring a child to spend time with a person, and family violence orders made under the law of a state or territory to protect a person from family violence.

Following recent legislative changes, where a Court exercising jurisdiction under the Family Law Act 1975 makes an order providing for a child to spend time with a person and this order is inconsistent with an existing family violence order, the Court is now obliged to explain to the parties affected (or arrange for someone else to explain to them), the effect and consequences of the order and how the parties are to comply with the order.

In addition, as a result of recent legislative amendments, when an application for a family violence order is made in a state or territory court, that court now has the jurisdiction to amend an existing family law order providing for a child to spend time with a person, if this is necessary to give effect to the family violence order.  This ensures that people are protected where a family law order may expose them to violence or risk of violence.

Here someone must attend court proceedings, it is important that the Court is notified about any concerns regarding personal safety.  In situations where someone is required to attend a court appointment or legal proceedings, the court can make special arrangements where someone has fears about being in the presence of their former partner.  Depending upon the circumstances, it may be possible to participate in the proceedings by phone, by video, or in a separate room.

Under the Constitution, the Commonwealth Government has the jurisdiction to make laws in relation to divorce and matrimonial causes, including parental rights and custody issues.  Because the Constitution did not expressly give the Commonwealth Government jurisdiction over de facto relationships and exnuptial children, under the Constitution these matters would fall within the jurisdiction of state governments.

Most states have chosen to refer some or all of their jurisdiction over de facto relationships and exnuptial children to the Commonwealth government.  Western Australia has retained its law making authority with respect to de facto relationships and exnuptial children.

Australia has a “no fault” divorce system and courts do not consider whose fault it was that the marriage has broken down.

In Australia you can only apply for a divorce after you have been physically separated from your spouse for a period of at least twelve months.  In a divorce application it is necessary to show that the marriage has broken down and there is no reasonable likelihood that you will get back together.

In some circumstances, it is possible to apply for a divorce even though you have not lived physically apart from your spouse for a twelve month period.  For example, the family law system is designed to encourage couples to reconcile their differences.  If a couple gets back together for one period of up to three months for the purpose of reconciliation, it is possible to use the periods before and after the period of reconciliation to calculate the twelve month separation period.

In some circumstances, it might be possible to apply for a divorce where you and your spouse have lived under one roof for all or part of the twelve month period.  In these situations, it is necessary to satisfy the court that you and your spouse lived separate lives despite living in the same home.  If you intend to live separate live under the same roof as your spouse, it is a good idea to consult a solicitor for advice on how to structure your relationship and your daily affairs in a manner likely to satisfy a court that you and your spouse lived separate lives.

Spouses who are getting divorced can finalise a property settlement at any time after separation and before either spouse has applied for a divorce.  Once a divorce has been obtained, however, you only have one year in which to apply to the court for an order for a property settlement.  If more than a year has passed since obtaining your divorce, it is necessary to obtain the court’s permission to bring the application.

In most cases, parties are able to agree on how property will be divided.  Parties can seek to have their agreement formalised by asking the court to make a consent order in the terms of the agreement.

Sometimes spouses cannot agree on how property will be divided and it is necessary to apply to the court.  The court will consider all of the property and financial resources of the parties.  This includes things like real estate, investments, interests in companies, family trusts, life insurance and superannuation.  In making a fair division of property, the court will consider each spouse’s contribution to the family, and contribution to the acquisition, conservation and improvement of the property.  The court will also consider both the present and future income of each spouse, as well as their needs and responsibilities.

A parent’s conduct will only become an issue where it affects the welfare of the children or goes to the issue of a parent’s ability to look after them. The court will make orders to try to protect children from domestic violence, which includes verbal threats that cause a person to be scared or apprehensive about their own well-being or safety.

If a parent has married again or is living in a defacto relationship, the court will take that into consideration to the extent that it is relevant to the children’s welfare. Again, the task of the court is to decide what will be in the best interests of the children.

The court will not refuse a parent residence or contact simply because the parent has an “alternative” lifestyle. That would only be a factor taken into account into to the extent that it impacts on the best interests of the children.

Spouses are generally expected to be self-supporting following separation.  However, in some circumstances spousal maintenance may be payable where one spouse is unable to meet his or her own needs and the other spouse has the capacity to assist.  For example, a high income earner may have to pay spousal support to a former spouse who is unable to work because of a physical disability or where the former spouse is responsible for caring for young children.

Applications for spousal maintenance must be brought within one year after obtaining a divorce.

Financial agreements are agreements about financial arrangements in the event of marriage breakdown.  Since December 2000, these agreements can be legally binding, provided that they are signed and provided that each person received independent legal and financial advice before signing.  In limited circumstances courts can declare the agreement to be invalid.

Financial agreements can be made before, during or after a marriage.  They often cover matters such as the division of assets after the marriage and the financial support of one spouse by the other after the marriage.  They are intended to impact the division of property and the payment of maintenance.

Both parents have full responsibility for all their children until a child is 18.  The family law system strongly encourages parents to reach an agreement regarding the care of their children.   The court can formalise these agreements by making a consent order.

Where agreement cannot be reached, an application may be made to the court for a parenting order.  In the past, orders were categorised as being residence, contact or specific issues orders.  However, following recent legislative amendments introduced by the Family Law Amendment (Shared Parental Responsibility) Act 2006, all of these orders are now referred to more broadly as parenting orders.  Child maintenance orders have remained a separate category of parenting order.

In making a parenting order, the court will always consider the best interests of the child, having regard to a number of factors set out in the legislation.  Those factors include the benefit to the child of having a meaningful relationship with both parents, and the need to protect a child from physical or psychological harm.

Recent legislative changes also require parents to attend family dispute resolution in order to resolve disputes about children prior to lodging an application with the court.  These changes are intended to promote the sharing of parental responsibility in the event of family breakdown.