Frequently Asked Questions

It is useful to bring with you a list setting out the most significant events of your relationship in this Template Chronology For Client to your first appointment.

If your matter involves the parenting of children (which is sometimes called ‘custody’), you may find it useful to read the Family Courts' 'Before You File – Pre-action Procedure for Parenting Cases' brochure. This brochure sets out the steps parents should take before starting court proceedings.

In family law property matters, parties must make full and frank disclosure of their financial circumstances. This includes documents such as taxation returns, bank statements, superannuation statements, and other relevant financial documents. Here is the Family Courts' ‘Before You File – Pre-action Procedure for Financial Cases' brochure, which sets out the kind of documents which must be disclosed before starting property settlement proceedings in court. Bring with you any of the documents you have to your first appointment.

If you are able, it will also be useful for you to prepare a table setting out what assets, liabilities, and superannuation you and your former partner have. Here is a template table that you can use.

When am I eligible to apply for a divorce?

Once a married couple has been separated for a period of at least 12 months, either person is able to bring an application for divorce. The only basis for seeking a divorce in Australia is that the parties’ marriage has broken down irretrievably.

How can I apply for a divorce?

Applications for divorce are brought in the Federal Circuit Court of Australia. After an application is filed in court, it will usually take about three months for a divorce to become finalised. There is a filing fee payable to the court for divorce applications.

Who can make an application to the court about a child’s living arrangements?

If agreement about children’s issues cannot be reached or if there are issues of urgency or family violence, you can make an application for parenting orders.

Either of a child’s parents, grandparents, or any other person concerned with the welfare of the child may apply to the court for a parenting order.

The Federal Circuit Court of Australia hears most applications for parenting orders. More complex matters are heard by the Family Court of Australia.

How does the court make decisions about children’s living arrangements?

The court is guided by the principle that the 'best interests' of a child is the most important consideration in making any decision about a child’s living arrangements. Under the Family Law Act, it is presumed that parents will have equal shared parental responsibility for their child or children. This means that parents will need to consult with each other and jointly decide major long term issues, such as education, health, and religion. Sometimes, the Court may decide that equal shared parental responsibility is not in the child’s best interests.

The court will determine whom the child lives with and how much time the child will spend with the other parent by reference to the child’s best interests. The primary considerations that the court will take into account are:

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

The secondary considerations the court will take into account include, but are not limited to, any views expressed by the child, the nature of the child’s relationship with each parent, and the extent to which each parent has participated in decision-making about the child.

When will a court make an order for a child to spend equal time with both parents?

If the court presumes that it is in the best interests of a child for his or her parents to equally share parental responsibility, then the court must consider making an order for the child to spend equal time with both parents. This does not mean that the court must make such an order, but only that the order must be considered. The court will consider issues such as:

1. The age and maturity of the child.
2. The practical difficulty of implementing an order for equal time (for example, do the parents live within a reasonable distance of each other?)
3. The co-parenting ability of the parents.

If the court takes the view that an order for equal time is not in the best interests of the child, the court must then consider making an order that the child spend substantial and significant time with the non-resident parent.

What will happen at my first court date?

Generally, the court will not radically change the child’s existing care arrangements unless there is evidence which strongly suggests that a change is required. This may include issues such as family violence.

Ordinarily, the court will continue the child’s existing care arrangements and is likely to refer the parties to participate in a mediation session known as a ‘section 11F’ conference.

Can I try to mediate with my former partner?

Unless leave of the court is obtained, it is a requirement that parties attempt mediation prior to issuing court proceedings. Once proceedings are issued, the parties may be directed to participate in mediation and family dispute resolution as part of the court process.

What should I do if I think my former partner is going to take my child against my wishes?

If you believe your child is going to be removed from your care by your former partner, you are able to seek an urgent order from the court that the other party be prevented from removing the child. This is particularly important if you believe your former partner may take your child overseas. In this situation, it is possible to seek an order from the court that the child be placed on the ‘Airport Watch List’ to prevent them being taken overseas without your consent.

If your child has been unlawfully removed from your care by your former partner, you are able to seek an urgent order from the court that the child be located and recovered.

How can I make my former partner pay child support?

If you are separated, you are able to contact the Child Support Agency directly and request that the Agency assess the amount of child support payable by your former partner.

You are also able to come to an agreement with your former partner about how much child support should be paid. Such an agreement can cover issues such as payment of school fees and medical expenses.

How much child support will I receive?

The amount of child support payable is determined by:

1. The income and expenses of each parent.
2. The level of care provided to the child by each parent.

My former partner is not paying their child support. How can I compel them to do so?

If your former partner is not paying child support, you should contact the Child Support Agency. The Agency is able to take measures such as garnishing your former partner’s wages or accessing your former partner’s bank accounts to compel payment of child support.

When can I apply for a property settlement?

A party to a marriage is able to apply for a property settlement at any time after separation. An application to the court for property settlement must be brought within 12 months of the date of divorce. For de facto couples, an application must be brought within 24 months of the date of separation.

How does the court decide which spouse receives what property?

Most property settlement applications are heard in the Federal Circuit Court. The Court resolve property applications by determining four key issues:

• What is the pool of property?
• What did each person contribute to the property pool?
• What are each person’s future needs?
• Is the proposed property settlement fair and equitable?

What will happen at my first court date?

If there is any dispute as to the value of any property, the court will order that such property be formerly valued. It is also likely that the court will direct the parties to attend a conciliation conference, which will give the parties an opportunity to come to an agreement through mediation.

How can I apply for my former partner to pay me spousal maintenance?

You are able to apply for spousal maintenance as part of a property settlement or as an individual application.

How much maintenance will I receive?

The court will determine your application based on:

1. Whether you have a shortfall in your ability to meet your weekly expenses.
2. Whether your former partner has a financial capacity to pay spousal maintenance.
3. Your future needs.

When can I enter into a Binding Financial Agreement with my partner?

Both married and de facto couples are able to enter into a Binding Financial Agreement either before (‘pre-nuptial’), during, or after the relationship.

What kinds of things can be included in a Binding Financial Agreement?

Binding Financial Agreements cover issues such as:

• Which partner brought what property into the relationship.
• How property will be divided in the event of separation.
• How assets acquired during the relationship will be dealt with in the event of separation.
• Maintenance for a child or party to the relationship.

At Swan Family Lawyers, we believe that a financial agreement is a useful tool for parties to plan their shared financial future. We are able to help you have an open and respectful conversation with your partner about how your property will be divided in the event that you separate, and draft an agreement which will provide you with financial certainty.

When are two people in a ‘de facto’ relationship?

Two people are in a de facto relationship if they are living together on a genuine domestic basis. De facto couples, including same sex couples, are treated in the same way as married couples under the Family Law Act.

At Swan Family Lawyers, we can advise you about your rights and obligations upon the breakdown of a de facto relationship.