Family Law

A relationship breakdown is a difficult and stressful time and family law matters can have a big impact on your future. If you are separating from your partner or spouse, getting the right advice from an experienced lawyer can help you navigate the legal implications.

Who does family law apply to?

The Family Law Act governs matters relating to the care of children and the distribution of property after a relationship breaks down. The Act applies to marriages and de facto relationships.

A de facto relationship is defined by a number of characteristics including the length and nature of the relationship, financial dependence or interdependence, the care and support of children, or whether the relationship was registered under state law.

In some cases, you may first need to prove that you were in a de facto relationship to pursue a family law matter, and our team can help you with that process.

Divorce

To apply for a divorce, your marriage must be considered to be ‘irretrievably broken down’ and the parties must have been separated for at least 12 months. It is possible to be separated while still living under the same roof and in such cases, you will need to provide details of your circumstances.

A divorce application must be filed with the court and if you have children under the age of 18, the court will need to be satisfied that proper arrangements have been put in place for the care of those children. A divorce does not require the consent of both parties.

You do not need to be divorced before dividing your property or making parenting arrangements for children of the relationship.

One aspect that many people may not consider upon divorce is that you should make a Will or update an existing one. Although marriage makes an existing Will void, divorce does not have the same effect. If you need assistance with obtaining a divorce, or advice on updating your Will, speak with one of our experienced lawyers today.

Property settlement

A property settlement involves separating your financial affairs from your former partner so that you can move forward with financial freedom from one another. The process involves distributing property and financial resources, as well as any liabilities. In determining how the distribution will be made, the law does not only consider ownership or financial contributions but also takes into consideration non-financial contributions to a relationship, such as caring for children.

Most ex-partners can settle their property affairs out of court with the assistance of their legal representatives.

A financial agreement (known also as a binding financial agreement) is a written contract between the parties that formalises the division of their property without intervention of the court. To be valid, the agreement must comply with certain formal requirements and both parties must receive independent legal advice. As financial agreements are considered a less formal way to divide property, they are not always recommended.

Consent orders are filed with the court and are generally considered a more formal approach to finalising your property affairs. The parties must make full disclosure in their application and, if the court believes the proposed orders are just and equitable, they will be granted and made legally binding. You do not need to attend court however it is important to receive legal advice before agreeing to consent orders to ensure that your rights are protected and that the proposed outcome is fair and reasonable.

Children’s issues

Orders or agreements can be made about a wide range of issues relating to children including where they will live, how much time they spend with each parent, who will make decisions for the child, or specific issues relating to education or healthcare.

All decisions must be made based on what is in the best interests of the child. Consideration is given to the benefit of the child having a meaningful relationship with both of their parents, but the need to protect a child from harm will be the paramount consideration.

Our team has experience in negotiating and drafting parenting orders to ensure that you and your ex-partner are on the same page. If you are unable to come to an agreement, we can assist with applications to the Federal Circuit Court and Family Court and guide you through the process.

Mediation and Family Dispute Resolution

Mediation is a confidential and low-cost way of trying to resolve a family law matter. It involves the parties meeting face to face with an impartial third party who assists them in reaching a solution. A mediator does not provide legal advice or determine the outcome of the dispute.

Family Dispute Resolution is a special kind of mediation for family law matters involving children and, apart from some exceptions, is compulsory before starting an application in court for parenting orders.

Family violence

If you have been or think you will be the victim of family violence, it is a good idea to call the police. The police may be able to assist you by applying for an Apprehended Domestic Violence Order on your behalf, although you can make this sort of application yourself.

Alternatively, if you have been served with a provisional Apprehended Domestic Violence Order, and you don’t believe the allegations are true, you may wish to go to court to prevent a final order being made. Our experienced lawyers can assist.

Arranging your affairs after a relationship breakdown is a stressful and challenging process, particularly when there are children involved. Our team of experienced lawyers can guide you through this process to ensure that you can move forward in the best position possible for your future.

If you need assistance, contact one of our lawyers at admin@cunninghamadam.com.au or call (02) 4987 3344 for expert legal advice.

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