Your Choices

1. Parenting Plan

A signed agreement between parents, which is not legally binding but would likely be influential in any future court proceedings. Our fees to prepare this type of arrangement would typically be from $1,000+. Parenting arrangements for a child or children. You and the other parent do not need to go to court to enter into a parenting plan. However, you should seek legal advice before entering into a parenting plan.

2. Court Consent Orders

Legally binding Family Court orders which are agreed by the parties and submitted in court. Our professional fees would typically be from $3,000.00 onwards.

3. Go to Court- Contested Orders

Going to Court? No agreement? We have to resolve the matter with genuine steps before Court. From $1,500 plus GST to start the dispute resolution process.

Consent Orders are Enforceable!

Parenting Plans by themselves are not enforceable. Consent Orders are Parenting Orders, which are signed by a Judge or Registrar and which are binding and enforceable on the parties.

A Consent Order is an agreement that is approved by a Court. Consent Orders are often prepared with the help of a lawyer. They are then lodged in Court. Once consent orders are approved by the Court, they are legally enforceable, so if you are preparing your own Consent Orders, it is very important to get legal advice.

A Child’s Best Interests? – The Critical Factor

The Act sets out the primary, or most important, considerations, for the court when it is deciding what is in a child’s best interests. The Act also sets out some other considerations.

Some of these considerations are:

• The benefit to the child of having a meaningful relationship with both of the child’s parents;
• The need to protect the child from physical or psychological harm, and from being subjected to, or exposed to, abuse, neglect or family violence;
• The need to protect the child from physical or psychological harm, including abuse, neglect or family violence, will outweigh other considerations;
• Views expressed by the child, considering the child’s maturity and level of understanding;
• The kind of relationship the child has with each parent and with other important people, for example grandparents or siblings;
• How much each parent has participated in the child’s life, including how much they have spent time with and communicated with the child;
• Whether each parent has met their obligation to maintain the child, for example paying child support;
• The effect on the child of any change in arrangements, including whether siblings will be separated from one another;
• The practical difficulty and expense of a child spending time with and communicating with a parent;
• The maturity, sex, lifestyle and culture and traditions of the child and the child’s parents, including, for Aboriginal or Torres Strait Islander children, the right to enjoy their culture;
• The capacity of each parent to provide for the needs of the child, including emotional and intellectual needs;
• Any family violence involving the child or a member of the child’s family and, if a family violence order has been made, and what that order says; and
• The willingness and ability of each parent to encourage a close and continuing relationship with the other parent.

What is ‘Custody’?

The term ‘custody’ is considered outdated and replaced with the term ‘parental responsibility’, which refers to all powers in relation to making long-term decisions as to a child’s upbringing, religion and education; including making any decisions about major medical procedures and treatments and applying for a passport or visa for the children.

When making parenting orders, the Court will:

• Presume that it is in a child’s best interests for the parents to have equal shared parental responsibility, unless a parent or someone who lives with the parent has engaged in child abuse or family violence; and
• Look at other evidence and decide if equal shared parental responsibility is not in a child’s best interests.

What is Parental Responsibility?
‘Live With’ – ‘Spend Time With’?

The parent with whom the child is living has the sole decision-making power for matters that are not about the children’s long-term welfare unless there is an agreement otherwise.

Equal shared parental responsibility does not mean that the child should live with both parents or spend time with both parents equally.

The issues of where children live and who they spend time with are usually referred to as ‘live with’ or ‘spend time with’ arrangements.

There is no presumption that parents should have equal time with the children, however a court must consider whether equal time is appropriate if parenting orders are made for equal shared parental responsibility. If equal time is not appropriate, then a court must consider ‘substantial and significant time’ which is legislated to mean weekend time and week time.

A child has the right to have a meaningful relationship with both parents which includes a right to spend time with both parents when this is reasonably practicable in the circumstances.

It must be reasonably practicable and if one parent lives a significant distance away from the child’s school it would not be reasonable for the child to spend overnight time with that parent on school nights.

What is Substantial and Significant Time?

Substantial and significant time includes children spending weekdays, weekends and holidays with each parent, and each parent having meaningful involvement in the child’s daily routine. It includes children spending significant events and special occasions with each parent.

In deciding whether it is reasonably practicable for a child to spend equal time or substantial and significant time with a parent, the court must consider:

• How far apart the parents live;
• Whether the parents can communicate and cooperate with each other and resolve difficulties, now and in the future; and
• The effect on the child of any proposed arrangements.

Mediation Essential Pre Court!

Before applying to a Court for a judicial determination, parties must attend “Family Dispute Resolution” and obtain a certificate to show that they have done so unless there is a specific reason why dispute resolution is inappropriate in the circumstances.

Custody Or Financial Split Before Divorce?

The granting of a divorce does not determine issues of financial support, property distribution or arrangements for children. It simply recognizes that the marriage has ended.

You can get Court Orders if your children are at risk immediately, or seek Custody, Parenting Plans & complete financial separation before divorce.

No Fault Divorce

The Family Law Act established the principle of no-fault divorce in Australian law. When granting a divorce, the court does not consider why the marriage ended and the only ground for divorce is that the marriage has broken down and there is no reasonable likelihood that the parties will get back together.

Can i Apply For a Divorce?

You can apply for a divorce in Australia if either you or your spouse: regard Australia as your home and intend to live in Australia indefinitely, or are an Australian citizen by birth, descent or by grant of Australian citizenship, or ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.

Separation & Still Living Together?

You need to satisfy the court that you and your spouse have lived separately and apart for at least 12 months, and there is no reasonable likelihood of resuming married life. It is possible to live together in the same home and still be separated.

What a Court Considers in Divorce?

The only grounds for divorce is that the marriage has broken down irretrievably. That is, that there is no reasonable likelihood that you will get back together. You must have been separated for at least 12 months and one day in order to satisfy the Court that the marriage has broken down irretrievably.

If there are children aged under 18, a Court can only grant a divorce if it is satisfied that proper arrangements have been made for them.

Can i Oppose a Divorce Application?

If you have been separated for more than 12 months, there are few opportunities to oppose a divorce Application. You can only oppose the divorce where:

There has not been 12 months separation as alleged in the Application, or the court does not have jurisdiction.

If you do not want the divorce granted, you must complete and file a “Response to Divorce” and appear in person on the hearing date.

You need to set out the grounds on which you seek the dismissal in the “Response to Divorce”.

If you file a response, you should attend the divorce hearing. If you do not attend, the Court may decide the divorce application in your absence. If it is difficult for you to attend in person, you may ask the Court to appear by telephone.

What if the Application has Errors?

If you want the divorce granted but disagree with the facts in the “Application for Divorce”, you may file a “Response to Divorce”.

You need to state which facts you disagree with in the “Response to Divorce”. The errors might, for example, be that dates of birth are incorrect or the details regarding the children are no longer correct. You do not need to attend the hearing.

Filing the Response to a Divorce

• If you want to file a “Response to Divorce”, you need to file it:
• if served in Australia – within 28 days of the application being served on you; or
• if served outside of Australia – within 42 days of the application being served on you.

Do I have to Attend the Divorce Hearing?

• No children under 18: If there is no child* of the marriage aged under 18 years, you are not required to attend the court hearing. This applies for both sole and joint applications.
• Joint application with children under 18: If you have made a joint application, you and your spouse are not required to attend the court hearing (even if there is a child of the marriage aged under 18).
• Sole application with children under 18: If you have made a sole application and there is a child of the marriage aged under 18 years, you (the applicant) are required to attend the court hearing unless circumstances prevent you from attending (see below).
• Response to Divorce: If there is no “Response to Divorce”, the other party is not required to attend, although they may do if they wish.
• If a respondent has completed and filed a “Response to Divorce”, but does not oppose the application, he or she does not need to attend the hearing.
• If a respondent has, in a “Response to Divorce”, opposed the application, the respondent must appear in person on the hearing date.

Child of the Marriage

Any child of you and your spouse, including children born before the marriage or after separation
Any child adopted by you and your spouse, or
Any child who was treated as a member of your family prior to your final separation; for example, a step-child or foster child.

Getting Married Again! But wait…

You should not make firm plans to marry on a specific date until the divorce order is finalised. You may, however, complete and lodge a marriage with an authorized celebrant before the divorce order is finalised.

If you intend to remarry, you must lodge the “Notice of Intended Marriage” with an authorised marriage celebrant at least one month before the date the marriage is solemnised, and comply with other requirements of the Marriage Act (1961). The authorised celebrant must sight a copy of the divorce order before the wedding can take place.

In most cases, the divorce order takes effect one month and one day after the divorce is granted. You should not assume the divorce will be granted at the first court hearing. For example, you may be told at the hearing that you need to provide more information.

Married Less than 2 years?

If you have been married less than two years you will need to file a counseling certificate. To obtain a certificate you will need to attend counseling. The two years are calculated from the date of the marriage to the date of applying to the court for a divorce.

You and your spouse must also have been separated for at least 12 months before applying for a divorce.

Overseas Marriages

If you were married overseas, you can apply for a divorce in Australia if either you or your spouse:

• Regard Australia as your home and intend to live indefinitely in Australia are an Australian citizen or resident, or
• Are an Australia citizen by birth or descent;
• Are an Australia citizen by grant of an Australia citizenship;
• A safeguard and financial protection for both parties;
• Ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.

You must provide the court with a copy of your marriage certificate. If your marriage certificate is not in English, you need to file an English translation of it, and an affidavit from the translator.

Divorced Overseas & Australia?

You can apply for a divorce overseas. Australia will recognize a divorce if it was effected in accordance with the laws of that country.

No. But you can separate under the same roof. In other words the relationship must be at an end. Then whether you do parenting first or financial first depends on your individual needs or you can address both together.

Once you have sorted out your parenting finances, but if a party pushes the divorce first it usually means they want to get remarried.

Conversely, you have 12 months after a divorce to lodge for parenting or financial matters.

No. It is not worthwhile for us to act only for your divorce unless there are complicating factors. Getting a divorce is the easy part and we will do it for you as part of the complete end-to-end process but to do divorce on its own will be too expensive in terms of our charge rates.

No. The law in Australia does not allow this type of charging in family law matters. However, we may consider doing a deferred fee approach where your fees are paid from financial settlement.

Yes. We have relationships with litigation funders and your case may qualify. We may also do self funding of your case by coming to an arrangement for the deferred payment of our fees until settlement

We are simply too busy to take on any legal aid work and have been on the legal aid panels for a number of years in the past only to help those that are disadvantaged.

We prefer to directly to pro bono work for selected cases which we find is far more effective than going through an intermediary, such as legal aid.