Frequently Asked Questions
Do I need a new Will?
Chances are that if you are reading this ebook you are contemplating separating or have recently separated. In short, you need to update your Will and this should be one of the first things that you attend to at this time.
We recommend that you turn your mind to having a new Will drawn at pinnacle times in your life such as the commencement or breakdown of a de facto or spousal relationship.
Various Estate law in Australia (each State differs) may provide for your spouse or de facto partner to be appointed as an Executor or Beneficiary of your Estate if you do not have a Will. Separation is not sufficient to revoke any Will that you have in place.
Divorce may revoke any Will but for absolute clarity and to avoid your Estate being distributed under the laws of intestacy, we recommend that you have a new Will drawn on separation. You want to ensure that you are able to appoint not only your beneficiaries but also your Executor (the person responsible for administering your Estate).
If you have children from another relationship, it is particularly important to have a new Will drawn at the commencement or breakdown of a new relationship if you want to ensure that your children are nominated beneficiaries.
Can’t I just draft my own Will?
Will Kits can be purchased online and at various shops. We are not fans of the Will Kits and recommend that you obtain legal advice. The Wills and Inheritance legislation in Australia has strict requirements in relation to the preparation of Wills. If the Will does not follow the strict requirements of the legislation then your Executor may be left with the stress and expense of having to prepare additional documents and swear additional affidavits to obtain a grant of probate from the Supreme Court. Preparation of a legally binding Will is one of the most cost effective measures you can take at this time.
We have competitive pricing for the preparation of Wills and Estate packages and also have an Estate Package eBook which you may find useful as it provides further and better detail around the importance of updating your Estate documents post separation).
Do I have to get Divorced?
The only legal requirement to apply to the Court for a Divorce is if you want to re-marry. We suspect that at this time you are not thinking of marriage! Generally speaking, people tend to apply for a Divorce for emotional closure and also for certainty around their matrimonial property division.
Another good reason to apply for a Divorce order is to ensure that your spouse has no entitlement to your Estate upon your death.
A Divorce Order will also “activate” the time limitation as there is generally only12 months from the date of a Divorce Order for either party to initiate proceedings in the Family Law Courts with respect to property division.
Divorce & Property Settlements
Divorce and Property settlements are not dealt with at the same time. You can (and probably should) commence negotiations of your property division immediately following separation. You do not need to wait 12 months to do so.
Property division is generally dealt with by either agreement of the parties (by way of Consent Minutes of Order of a Binding Financial Agreement) or by initiating proceedings in the Family Law Courts. Property division is completely separate from a Divorce Application. We advise that you get legal advice either before you separate or soon after separation to work out which approach is best for your situation.
Are there any Time Limits?
The Family Law Act stipulates that you have 12 months from the date of a Divorce order being made to apply to the Court in relation to your property division.
There are some exceptions and it’s best to get some legal advice even if you are outside of the time limitation.
Do I need a Lawyer to apply for a Divorce?
Generally speaking, it is relatively easy to obtain a Divorce in Australia.
The Application can be a joint application or sole application.The Court needs to be satisfied that you have been separated for 12 months and that there are arrangements in place for any children under the age of 18.
If you have been married for less than 2 years you will need to obtain a mediation/counselling certificate.
The Application can be a little bit more tricky if you do not know the location of your spouse. We can give you further information in relation to service and applications for substitute service or to dispense with service.
We are able to prepare your Divorce Application but generally speaking these Applications are easy to prepare yourself and are a good way to save monies in terms of legal fees. We can provide you with the relevant documents but of course are able to prepare the documents for you if your matter is a little tricky or you are time poor. You’re generally better off using your finances towards instructing us to prepare your Will and for advice in relation to parenting/property matters.
Separated but living in the same house. Can I still apply for a Divorce?
As long as the separation period has been 12 months or longer. It is becoming more common to be separated but living under the same roof for financial reasons. The Court will need to be satisfied that at least one party has informed the other of their intention to separate. The Court will also look at things such as whether you have told your family/friends of the separation, if you are sleeping in a separate room and whether you are now cooking your own meals etc. These are only some examples.
How much does a Divorce cost?
At the time of writing, the Court’s filing fee is around the $990 mark (with the filing fee reduced to around $330 on the grounds of financial hardship). Check the Court website for current fees.
As mentioned, it is generally a good way to save in legal fees to prepare your own Divorce. If you would like us to prepare the documents for you then please get in touch.
De Facto Questions
I’m not Married. Do I have the same Rights as a Married couple?
There were some major changes made to de facto law in Australia in 2008 which effectively resulted in de facto couples separating after 1 March 2009 being able to seek property adjustment orders pursuant to the Family Law Act 1975 (in the Family Law Courts). You will also be able to easily seek parenting orders through the Court. Western Australian residents are still dealt with pursuant to their own State legislation and State Family Court.
The Family Law Act sets out the threshold requirements to be able to make a claim for property in the Court. Importantly, the relationship must have existed for at least 2 years. The 2 year period can be a continuous period or over stages.
If the relationship has not existed for at least 2 years, you can still apply to the Family Law Courts for a property order if:
- you have a child; or
- you made substantial contributions and it would result in a serious injustice if yo were not allowed to; or
- the relationship was registered under a prescribed law of the Territory or State.
Will the Court recognise my relationship as being De Facto?
The meaning of a de facto relationship is defined under the Act if:
- the persons are not legally married to each other; and
- the persons are not related by family; and
- having regard to all the circumstances in the relationship, they have a relationship as a couple living together on a genuine domestic basis
In determining whether the relationship is one of a couple, the Act identifies the following types of things to assist to make that determination: duration of relationship, whether there is a sexual relationship, whether the couple lives together, financial interdependence, ownership of property in joint names, the care of children and whether the public viewed the couple as being so.
You will have protection as a de facto couple whether you are from the opposite or same sex.
Common Immediate Questions Post Separation
Access to our assets or income. What can I do?
If your spouse is the main income earner or is denying you access to assets you should immediately get legal advice.
If you are in the position of financial hardship and have money in a joint bank account then you should be able to access all/some of those monies to help you get by. The fact that you have taken funds would, however, be considered in the overall property division at a later date.
You should be able to justify drawing all of the money and should not do so simply to make life more difficult for your spouse.
A Solicitor can assist you initially by negotiating in writing to your spouse. If there is no success then your Solicitor can also assist by applying to the Family Law Courts for an interim court order for things such as urgent spousal maintenance or an occupancy order.
A Solicitor can also assist you to apply for an injunction to prevent your spouse from disposing of property and can also assist to register a Caveat to prevent sale/transfer with the Lands Titles Office in relation to any property that your spouse has in his or her sole name.
Can my ex partner Kick me Out of the House?
If both of your names are on the Certificate of Title then you are both legally allowed to remain living at the property. It is not uncommon for separated parties to remain living at the property for financial or other reasons.
This of course is not always practical, particularly if there has been domestic violence in the relationship. If there has been family violence or if you fear for your safety then please speak to a solicitor immediately (preferably prior to leaving the house if it is safe to do so). An Intervention Order may allow the protected person to have sole occupancy of the property even if it is in joint names. At The Family Law Project we work closely with domestic violence and emergency accommodation services and are able to assist with those referrals. We can also provide information in relation to Intervention Orders for your protection.
Can I Change the Locks?
Put simply: if you are either the sole or joint registered owners on the Certificate of Title then you are legally entitled to change the locks. Be mindful, however, that if the property is under joint tenancy then your ex-partner is able to have them changed back! Things can start to get messy and you need to think about the practical implications and the effect of any arguments in front of children.
What about the Mortgage?
One difficulty at separation can be the upkeep of mortgage repayments. This is particularly difficult if the main income earner has left the matrimonial home and the spouse remaining does not have capacity to continue meeting mortgage repayments by themselves. If a mortgage is in joint names then both parties remain jointly liable for that mortgage until the mortgage is discharged. Commonly, however, the person remaining in the property will become responsible for mortgage repayments as if they were effectively renting the property.
If the spouse leaving the property continues to make mortgage repayments or contributions towards the mortgage, they may be able to negotiate a higher percentage of the capital gain on the property post separation.
It is not uncommon for financial institutions to approve a short term suspension/break on all mortgage repayments on grounds of financial hardship and also upon separation. You should approach your bank directly to discuss this option.
Keeping Legal Fees to a Minimum
To keep your legal costs to a minimum, it is always a good idea to talk to
your spouse generally about what you want to do with your assets. It can help to have that conversation so that you are both clear as to what you are each wanting (for instance one party may be very keen to remain living in the matrimonial home if they can afford to do so).
Ideally you will also exchange information such as the balance of any sole bank accounts and details of any assets in sole names such as superannuation. It is always a good idea to obtain photocopies or details of this information before separation if possible.
You should make a list of all of the assets at the date of separation whether they are held in sole or joint names and give an estimate value of each item. It is very helpful to provide this list along with a chronology of critical dates to your solicitor. If you book a meeting with our office then we will give you more information in relation to what you can bring to your appointment to assist to keep your legal fees to a minimum.
Do we have to go to Court to resolve our Property Division?
It is very common for matters to settle without the need to attend Court. Often, when you instruct a Solicitor, they will negotiate with the other party or their solicitor and also exchange relevant documents. It is quite common for proposals to be exchanged. If an agreement is reached then this may be drawn up as a Binding Financial Agreement or by way of Consent Minutes of Order which is registered in the Family Law Courts. The Orders are simply sent by mail to the Court for a Registrar to sign off on and seal (stamp). They have the effect of legally binding Court orders without the need to personally attend Court.
At The Family Law Project, our preference is always to have your matter settled outside of Court as it is generally less stressful for the parties and also more cost effective for you. If our negotiation is not fruitful then we can discuss other options such as arranging an informal conference with your ex partner and their solicitor using a genuine approach to resolve all matters whilst avoiding Court.
What if No Agreement can be reached?
If no agreement can be reached by negotiation then either party can apply to the Family Law Courts to have the Court assist to make orders about property division.
If the other party is being a pain in the backside then let’s not beat around the bush trying to negotiate. In those circumstances it is usually more cost effective to get your matter before the Court for a quicker resolution.
Often at the first hearing date the Court will make an order for the mutual discovery and exchange of documents and for valuations of any assets where the value has not been agreed. The matter is usually referred to a lawyer assisted Conciliation Conference and many matters will settle at that point.
Ultimately, if your matter proceeds it will at some stage be given a final hearing date for judicial determination. There is always the opportunity throughout proceedings for final agreement to be reached and for your matter to be removed from the Court list.
How does the Court Determine Asset Division?
The Court is guided by the Family Law Act and also case law to determine property division. It can be quite a complex process.
Generally speaking, there are 4 steps that the Court must take when determining property division.
Step 1: What is the Asset Pool?
The Court will look at all property/debt that exists at the time you make the application – they will also consider what property/debt each of you had before the marriage/relationship, during the marriage/relationship and after separation. It is irrelevant whether an asset is held in sole or joint names – it can all be divided, as can superannuation.
Step 2: Contributions
The Court then considers both the financial and non-financial contributions that the parties have made during the relationship.
Step 3: Future Needs & Capacity
The Court must factor in the future needs and earning capacity of both parties – factors such as employment, difficulties around earning capacity, care of children and likelihood of payment of any child support.
Step 4: Just & Equitable
Finally, the Court must consider the overall fairness of any order that it makes. The Court will not make an order for property division unless it is satisfied that it is equitable to do so.
Are there any Time Limits?
The time limit to file an application for property adjustment or for maintenance for a de facto claim must be made within 2 years of the date of separation. There are some exceptions to file out of time and you should seek legal advice around that.
The time limit to file the same application for a married person is 12 months from the date of an or for Divorce being made by the Court.
Who Gets the Dog?!
It is becoming increasing common for people to have strong attachments to their pets. Separation from your partner is often a stressful situation and can be even more difficult where your pet is no longer in your care.
Even though people can feel these strong attachments to their pets, it’s important to understand that if there can be not agreement around pets, then eat Court must consider the put pursuant to an application around property division. It is very independent to an application being dealt with in relation to children! Realistically, the Judge will not be too impressed if “Martha” is included in your property application!
Ideally, you and your ex partner should try to reach an agreement between yourselves if you can. If there are children in the relationship keep this at the forefront of your mind as the children will be experiencing many changes and it’s always good to keep consistency for them with any attachments they have with their pets. If you can’t reach an agreement then be mindful of the legal costs that may be involved. We have been instructed previously to negotiate on behalf of a client disputing the ‘custody’ of their $30 turtle. The money spent on legal fees well exceeded the cost of the turtle!
As frustrating as some of the judiciary find these applications, the fact is that the Court is more increasingly being asked to make a determination about the family pet.
What are Intervention Orders?
Intervention Orders are commonly made at around the time of separation. It is not uncommon for there to be a situational event that may cause one party to apply for an Intervention Order for their protection. If you have concerns in relation to your safety then speak to us in relation to how you and the children can be protected.
If you have been served with an Intervention Order then you should obtain urgent legal advice from us. Just because your ex and/or children have been listed as protected persons does not preclude you from being able to see your children. This is a common misconception and unfortunately we too often see (generally men) putting off seeking legal advice or pursuing time with their children because they mistakenly think that the Intervention Order precludes them from doing so. Speak with one of our Solicitors.
Is a “50/50” shared care arrangement automatic?
Changes were made to the Family Law Act in 2006 which provide for a presumption of “equal shared parental responsibility”. Parental responsibility is in relation to decisions around major decisions for the children (such as education, medical and religious decisions). Where the Court makes an order for equal shared parental responsibility, it must consider making an order for the children to spend equal time with both parents. The reality is that an “equal time” order is much more difficult to achieve.
The Act makes reference to there being a presumption of Equal shared Parental Responsibility except in matters where there is reasonable grounds to believe that there is Child Abuse or Family Violence.
Shared Parental Responsibility does not mean Shared/Equal time. Parental Responsibility is reference to who can make decisions for the children in relation to their Education, Health and Religion. It is a reference to those long term and “big decisions” in relation to children. It is not a reference to equal time and unfortunately this is a common misconception which we have seen since the change to the Act.
Do I have to go to Mediation?
The changes made to the Family Law Act in 2006 mean it is now compulsory to attempt Family Dispute Resolution (FDR), or mediation, prior seeking orders from the Family Law Courts. We still suggest that you seek legal advice prior to attending FDR so that you have some idea of what the law and are armed with that knowledge prior to negotiating. It may also be a good idea to get further legal advice prior to signing any written agreement reached during the FDR process.
In some situations such as urgency or where there has been family violence you can get an exemption from having to attend FDR.
What exactly is FDR?
Family Dispute Resolution (FDR) is a mediation process which attempts to encourage parents (or other significant persons) to reach agreements about children’s living arrangements and how much time they spend with each parent.
There are many different FDR service providers. Each will operate differently but many will require both parents to attend intake interview (one on one with the service) before bringing you both together.
Often the mediation session will go for a few hours. It is often possible to be arranged as a shuttle conference.
If you are contacted by a FDR provider inviting you to participate in FDR you should realise that attendance is not compulsory. If you do not attend, however, the other party will be issued with a s60I certificate which effectively then entitles them to apply to the Family Law Courts for orders. It’s always advisable to get legal advice before agreeing to attend. We can also assist to arrange a private mediation or a solicitor assisted mediation where we attend the conference component with you.
Legal Aid Family Law Conference
Often the mediation session will go for a few hours. It is often possible to be arranged as a shuttle conference.
Legal Aid also offers FDR which is held at their offices. The advantage of Legal Aid conferences is that they are run by independent practitioners who also have experience in working as Family Lawyers. You can also have your Solicitor attend the Conference with you and assist to draw up the agreement as enforceable Court Orders. It may be preferable for you to have Court Orders rather than Parenting Plans.
The Family Law Project can attend these Legal Aid Conferences with you and can also assist you to apply for a grant of Legal Aid. Only one party at the Conference is required to have a grant of Legal Aid. We attend these Conferences on a regular basis. Solicitor assisted FDR is a great option.
Have one of our Solicitors attend with you. We can also assist you to apply for a grant of Legal Aid to attend.
What is a Parenting Plan?
A Parenting Plan is a written signed agreement between parents outlining things such as parental responsibility and how much time children spend with each parent. Parenting Plans are not Court Orders and cannot be legally enforced per se. They can, however, be shown to the Court at a later date if they are signed and dated. If you are concerned that the other party may breach a Parenting Plan then you should discuss with a solicitor the option of having them drawn as binding Consent Minutes of Order.
What are Consent Minutes of Order?
Consent Minutes of Order in relation to children set out the living arrangements for the children and outline how much time they spend with each parent.
Consent Minutes of Order also set out things such as who has parental responsibility or if there is shared parental responsibility of the children.
Once signed by each party, the Minutes are sent by mail to the Family Law Courts for a Registrar to seal. Once sealed by the Court then they have the effect of being a binding Court Order.
Who Can Apply to the Courts?
If you are a parent of the child then you can apply for Orders for a child to live with you or to spend time with you. The Act also provides for Grandparents to be able to apply for orders. The Act also expressly indicates that “any other person concerned with the care, welfare and development” of a child can apply. This leaves the interpretation quite broad!
How does the Court determine where the Children Live?
Equal time is actually not a common order made by the Court which is largely due to the nature of the matters that reach the Court. Usually if a matter is before the Court then the parents of the child have some difficulty in terms of their communication and co-parenting which would not lend well to a shared care arrangement. The Family Law Act stipulates that children have the right to communicate with and spend “substantial and significant time” with both parents. Ultimately, the Court will look at what is in the best interests of the children and ensure that they are safe.
The Court will consider things such as distance between houses, how well you communicate, routines of the children, family violence and any other factor relevant to your particular children.
The children’s wishes are one factor that may be considered. The weight given to their wishes will depend on their age and maturity.
The Act allows you to apply for Orders for a child to “live with” you or to “spend time” with you. You are also able to apply for orders to communicate with children which extends to communication such as Skype and FaceTime (yes, the Court is keeping up with technology …. to a certain extent!).
I am experiencing Family Violence and I am worried about my ex partner seeing the Children. What should I do?
The Family Law Act has was amended in July 2012 which resulted in the Act having a more definitive definition of family/domestic violence and providing examples of what family violence is.
The Act makes it very clear that you do not need to experience physical violence to be a victim of family violence. Emotional abuse and simply being fearful of your partner or ex-partner may constitute family violence.
If you are currently experiencing family violence or were in a relationship of domestic violence then it is very important to speak to a Solicitor as soon as possible.
It may be advisable not to allow the other parent any time with the children and you certainly should not feel as though you have to put yourself in a position of facilitating that time initially.
The Family Law Project is experienced in dealing with victims of family violence through specialised domestic violence training and also from working with many victims of domestic violence. We will ensure that you are well supported throughout the family law process and will assist to refer you to other service providers. We can discuss protection orders and put in a plan to ensure the safety of you and your children.
Family Violence & Court Proceedings?
If it has been established or suspected that one parent has been violent towards the other parent or the child then the Court is likely to have some reservations about that parent having care of the child.
One of the aims of the Act is to protect children from physical and psychological harm and abuse. This includes children being exposed to family violence (ie where they have witnessed family violence). The definition of Family Violence extends to psychological harm where one party may have been threatening, coercive or controlling of the other party. The Court will be concerned if a child has overheard or witnessed any of the above.
If you have concerns about the welfare of your children then it is still best to talk to a family lawyer before agreeing to any supervised time. Often you may feel pressured to agree to a third party to supervise time but in some circumstances you may run the risk of the other parent not returning the children or putting their welfare at risk. It is not a good idea to supervise time yourself if you are fearful of the other parent.
If your matter has reached Court stage and the Court has concerns about the safety of a child (for example, where there has been family violence) then the Court may make an Order for supervised time. At other times it is also ordered where the parent has not spent time with the children for considerable time. Time may be supervised by a friend/ relative or by a Children’s Contact Service. Supervised time at a Children’s Contact Service is usually capped to a number of visits. They will often provide an observation report following a series of visits which may be drawn to the Court’s attention.
What is an Independent Children’s Lawyer?
It is common for an Independent Children’s Lawyer (ICL) to be appointed in more complex matters which are before the Family Law Courts. The ICL must act impartially and assist the Court to reach a decision which they believe is in the best interest of the children.
The ICL will often meet with older children to explain the Court process. They will work with professionals such as family consultants to relay to the Court the wishes of children. They are not bound by instructions of children so can make recommendations that are against the wishes of a child.
The ICL will also speak to medical professionals and schools to gather relevant information about the children.
If the Court makes an order for the appointment of an ICL then the parties are each responsible for payment of one half of the cost of the appointment. If you are in receipt of a grant of Legal Aid then that cost is generally waived.
Shaya Lewis-Dermody, Director of The Family Law Project, is a qualified Independent Children’s Lawyer and often appointed by the Court to represent children. You can find the link to our You Tube channel on our website and watch her video in relation to the role.
What is a Family Report?
The Family Law Courts also frequently make an order for a Family Report or an Expert Report. Family Reports are prepared by family consultants employed by the Court and are prepared at no cost to the parties. The family consultant will spend considerable time with all parties and the children of the relationship. A report is then prepared, with recommendations, and released to the Court.
The report writer will have access to all documents that have been filed by the parties.
An Expert Report is prepared in more complex matters. It is prepared by a private professional and generally paid for in equal shares by the parties.
If a matter proceeds to final hearing (Trial) then the family consultant or expert will typically attend to give evidence in relation to their report. Whilst the Court is not bound by the recommendations by the report writer, the report will hold a certain amount of weight. The report writer will need to give evidence and be cross examined at the final hearing if your matter proceeds to Trial.
Determining the Best Interest of the Child
What does the Court consider when attempting to detainee the best interest of the child? Aside from the Family Report (if relevant), the Court will be considering the factors as set out in Section 60CC of the Act. That Section sets out the primary consideration being the right of the child to have a meaningful relationship with both parents. It also sets out the need to protect the child from psychological and physical harm and from Family Violence.
The Court will otherwise consider the following:
- the wishes of the child (depending on their age) which may be ascertained via the Family Report writer/Expert;
- the child’s current relationships;
- the willingness of the parents to encourage the child’s relationship with the other parent;
- what the existing living arrangements have been for the child;
- cultural issues;
- separation of siblings;
- any family violence issues; and
- the practical effect of any orders made (ie the living arrangements of the parties and the distance between their residences)
Whilst the Act does not say so, we generally find that it is usual for a child to be removed from any longstanding arrangement (the “status quo”).
It is very rare for a child to have to speak to a Judge or to attend Court and as a general rule that would be considered inappropriate.
The Court will generally not be concerned about the reason for separation or who was at fault for the breakdown of the relationship.
Can I Change my Child’s Name?
We are often asked by parents if they are able to change their children’s names. This is a particularly common question if one parent has had very little involvement with the child.
Change of name requires both parents consent if both parents are on the child’s Birth Certificate. If one party refuses to execute the necessary consent documents then an application is required to be filed in the Family Law Courts.
If you don’t know where the other biological parent is then we can assist with an application to dispense with service on that parent.
If you cannot locate the other parent or if the other parent does not consent to the name change then the Court will take into considerations factors including: the relationship of the non- consenting parent, the reason for wanting the name change and the wishes of the child.
Can I get a Passport without the other Parent’s Consent?
If there are already parenting orders in place then you are unable to leave the country without the permission of the other parent/interested party.
A Passport Application requires the signature of both parents so it is always best to try to have the other parent sign the application if you do not have concerns around your safety. If you do not know where the other parent lives or if they refuse to sign the Application then you can apply to the Family Law Courts for an order permitting you to be the sole applicant for a Passport.
In making such an order, the Court would consider factors such as: whether there are any parenting orders or plans in place, the child’s relationship with the other parent, the age of the child, if you are travelling to a non-Hague Convention (re child abduction) country and whether you are likely to return to Australia. You would have to address the Court on these issues even for an older child who has never met the non- consenting parent.
Remember that it is illegal to take a child overseas without the consent of the other parent or an Order from the Court. Even on that cheap all inclusive trip to Bali!
I Suspect my Partner will take the Children Overseas without my Consent. What should I do?
Stop reading this and call us immediately!
We can obtain an urgent Airport Watch List order in place if appropriate. An urgent Application is filed with the Court and emailed to the Australian Federal Police in Canberra who will notify Interpol. This generally precludes anybody being able to remove that child out of the Country.
Can I Relocate with my Children?
The answer to this question is very much dependent on your particular set of circumstances. The answer will be very different if you have an older child who has never met the other parent as opposed to a child who is currently spending regular time with the other parent or a child who is subject to a Parenting Plan or Parenting Orders.
The Court would consider factors such as the child’s relationship with the other parent, the reason for the proposed move, the age of the child, the distance of travel and any proposals that you have to maintain the child’s relationship with the other parent.
There has been frequent case law on relocation in recent years and changes to the Family Law Act placing an emphasis on the importance of children’s relationships with both parents can make it more difficult to seek permission to relocate a child. Either way, you will generally need to go through the Family Dispute Resolution process in the first instance.
Chat to a Solicitor about your unique situation to ensure that you receive relevant advice. Please ensure that you obtain advice before you relocate.
The other party is refusing to follow the Orders made by the Court. What can I do?
The Court will not monitor or oversee final orders. If there is a breach of the orders then the options are generally to instruct a Solicitor to write to the other party to place them on notice of the breach. Alternatively/ subsequently a Contravention Application may be filed. If you file a Contravention Application then the onus is on you to establish that the other party did not have a “reasonable excuse” to breach the order.
A Contravention Application is quasi criminal with penalties ranging from “make-up time” to imprisonment. That said, it is very rare for us to see imprisonment for breach of a final order.
Who is Entitled to Child Support?
The Child Support legislation stipulates that both parents have a financial obligation to their children. This includes same sex couples.
Parents can reach an agreement between themselves as to how much should be paid to the main caregiver. We suggest, however, that you speak to the Child Support Agency to obtain an indication as to what you would be able to obtain or required to pay if assessed by the Child Support Agency.
If you have made an application for child support with the Child Support Agency then they are able to collect payments on your behalf and deduct payments from the other person’s bank account.
I don’t think that I am the Biological Father. What can I do?
If your name is not on the child’s birth certificate then the Child Support Agency will write to you and ask you to sign a Statutory Declaration confirming that you are the biological father. You may be asked to complete DNA testing or become a respondent in Family Law Court proceedings to prove parentage. If you have doubts, do not sign any documents and get some legal advice first.
If you name is on the birth certificate then you will be required to pay Child Support. It is therefore recommended that you seek legal advice to assist with any negotiation with the other party to conduct DNA testing or an application to the Family Law Courts to dispute parentage. If tests show that you are not the biological father then the Court provides a Declaration which is sufficient to cease any further Child Support obligations.
Father is refusing to pay Child Support. What can I do?
Keep in mind that if you are in receipt of a Centrelink benefit, it will often be mandatory to make an application for Child Support. Get in contact with us and we can assist with having the father sign a Statutory Declaration and provide the relevant information to the Child Support Agency. Alternatively, you may need to apply to the Family Court for an order in relation to parentage. That application may involve parentage (DNA) testing followed by a Declaration from the Court that the father is the biological father.
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