Family Law

We understand that facing family law issues can be challenging and stressful.

If you are getting divorced or separating, or making arrangements for your children, you will need a family lawyer who can guide you through the law and the processes that apply.

You may also look for advice on property settlement, spousal maintenance, child support or relocation issues to protect your rights.Family violence can be another aspect of family law calling for assistance by a family lawyer.

To navigate the complexities of family law, you would want to be assisted by family lawyers who can relate to your particular circumstances and will represent you to the best of their ability.

Separation and Divorce

Separation involves an intention by one or both parties to a marriage to sever the matrimonial relationship, and acting on that intention.

Normally, there is also communication; a party forms an intention to separate, acts on the intention, and informs the other party of that intention.

Spouses may live far away from each other without being separated. On the other hand, spouses who live under the same roof may nevertheless be separated.

Separation means more than mere physical separation. Rather, it involves the breakdown of the marital relationship.

An application for a divorce order may be made if either of the spouses is an Australian citizen, or is domiciled in Australia, or is ordinarily resident in Australia, and has been so resident for one year immediately preceding the date of filing such application.

The application for divorce can be brought by either party to the marriage, or by both spouses jointly.

An application for a divorce order must be based on the ground that the marriage has broken down irretrievably.

This ground can be established if the Court is satisfied that the parties to the marriage have separated and thereafter lived separately and apart for a continuous period of at least 12 months immediately preceding the date of filing the application for the divorce order.

A divorce order is not to be made if the Court is satisfied that there is a reasonable likelihood of cohabitation being resumed.

This means that a divorce order may be made where the marriage has broken down irretrievably, as established by the fact that the parties’ matrimonial relationship has effectively broken down for not less than 12 months.

Binding Financial Agreements

Under the Family Law Act, Courts have the power to order the settlement or transfer of property interests from one of the parties to a marriage to the other.

Courts exercising jurisdiction under the Family Law Act also have the power to alter the property interests of de facto partners following the breakdown of their de facto relationship.

The Court has a wide discretion to make such orders as it considers appropriate in altering the property interests of parties to a marriage or de facto relationship.

When determining what order to make in a property settlement proceeding, the Court will take into account a range of factors including:

• the financial and non-financial contributions that each party has made to the relationship;
• the duration of the relationship, and the extent to which the relationship has affected the earning capacity of either one of the parties;
• any child support provided by either party; and
• each party’s future needs, considering for example their age and state of health, their income and financial resources, and whether either party will have the care of children.

In this respect, the Court may adopt an approach to the determination of property settlement applications involving the following inter-related steps:

Firstly, ascertain the identity and value of the property of each party, as well as their financial resources and liabilities. Secondly, identify and assess the contributions of the parties, and determine their contribution-based entitlements expressed as a percentage of the net value of their property.

Thirdly, identify and assess the future needs of each party, including their age and state of health, their earning capacity and financial resources, and whether either of the parties will support a child under 18 years of age or another person whom they have a duty to maintain. After considering these factors, resolve whether any adjustments should be made to the contribution-based entitlements of the parties established at the second step. Fourthly, consider the effect of those findings to determine what order is just and equitable in all the circumstances of the case.

There are different time limits for making an application to the Court for financial orders depending on whether the parties were married or if they were in a de facto relationship.

If you were married, the applications for property adjustment must be made within 12 months of your divorce becoming final. If you were in a de facto relationship, applications for property adjustment need to be made within 2 years of the de facto relationship breaking down.

In some situations, the Court may grant leave to start proceedings out of time.

Property Settlements

Under the Family Law Act, Courts have the power to order the settlement or transfer of property interests from one of the parties to a marriage to the other.

Courts exercising jurisdiction under the Family Law Act also have the power to alter the property interests of de facto partners following the breakdown of their de facto relationship.

The Court has a wide discretion to make such orders as it considers appropriate in altering the property interests of parties to a marriage or de facto relationship.

When determining what order to make in a property settlement proceeding, the Court will take into account a range of factors including:

the financial and non-financial contributions that each party has made to the relationship;
the duration of the relationship, and the extent to which the relationship has affected the earning capacity of either one of the parties;
any child support provided by either party; and
each party’s future needs, considering for example their age and state of health, their income and financial resources, and whether either party will have the care of children.

In this respect, the Court may adopt an approach to the determination of property settlement applications involving the following inter-related steps:

There are different time limits for making an application to the Court for financial orders depending on whether the parties were married or if they were in a de facto relationship.

In some situations, the Court may grant leave to start proceedings out of time.

Child Maintenance and Child Support

Parents have a primary duty to maintain their children. The duty of a parent to maintain a child has priority over all commitments of the parent other than commitments that are necessary to enable the parent to support himself or herself and any other child or person whom he or she has a duty to maintain.

The duty of a parent to maintain a child is not affected by the duty of any other person to maintain the child nor by any entitlement of the child or other person to an allowance, benefit, or income-tested pension.

As a consequence, if a parent can pay maintenance for their child, the parent will be liable to pay maintenance even though financial support for the child can otherwise be obtained from another person or through social security.

Child support, or financial provision paid by one parent to the other parent or some other person who has the care of the child, is generally determined by way of an administrative assessment. Relevant legislation sets out a statutory formula for determining the financial provision that is payable.

However, in some situations, financial provision may be determined by a judge through a child maintenance order. These orders can be made by consent of the parties or by means of a judgement of the Court.

A child maintenance order can be sought by a parent of the child, a grandparent of the child, the child in their own right, or any other person concerned with the care, welfare, or development of the child.

The Court is not to make a child maintenance order if a child support assessment for the child can be made by the Registrar of the Department of Human Services (‘the Child Support Registrar’).

Child Support Assessments

A parent can apply for an assessment of child support for a child if they are not living with the other parent of the child as his or her partner on a genuine domestic basis. When a parent makes an application for child support, both he or she and the other parent will be assessed in respect of the costs of the child.

In certain circumstances, a non-parent carer may also apply for a child support assessment for a child.

The Child Support Registrar is authorised to make an administrative assessment of child support for eligible children.

Child support assessments are calculated on the basis of a formula that takes into account the parents’ income, the care arrangements for the child, and the costs of the child.

The child support assessment decides the amount of child support that is required to be paid by a separated parent to the other parent or to non-parent carers of the child.

You may object to a child support assessment by application to the Child Support Registrar if, for example, wrong information was used, relevant facts were overlooked, the law was not applied correctly, or there has been a change in circumstances.

Alternatively, if certain criteria are met, a child support assessment may be challenged by applying to the Court for a departure order.

Time limits apply if you wish to object to or challenge a child support decision by the Child Support Agency.

Relocation

Moving your child to another city, state or country may have an impact on the time that the child spends with a parent or other significant person.

If your child primarily lives with you, you may need to talk with the other party to make suitable parenting arrangements before relocating the child.

If you cannot reach an agreement, you may ask the Court to make parenting orders. In case you wish to prevent the other party from relocating with a child, you may seek a Court order prohibiting relocation of the child’s residence outside of a specified area.

Spousal Maintenance and De Facto Maintenance

Under the Family Law Act, you may be responsible to financially assist your spouse or former de facto partner if they are unable to meet their own reasonable expenses from their income or assets.

Spousal maintenance is financial support paid by a party to a marriage to their spouse or former spouse in circumstances where they cannot adequately support themselves.

Similarly, de facto maintenance is financial support paid by a party to a de facto relationship to their former de-facto partner where the de facto relationship has broken down and the former de facto partner is unable to adequately support himself or herself.

When making a decision about spousal maintenance, the Court will consider matters such as for example:

the age and health of the parties;
the income, property and financial resources of the parties, and their ability to work;
whether either party has the care of a child who is under 18 years of age;
commitments that are necessary to enable the parties to support themselves or a child or another person whom they have a duty to maintain;
the eligibility of either party for a pension, allowance or benefit;
the parties’ eligibility for superannuation; and
a standard of living that is reasonable in all the circumstances.

Both parties have an equal duty to maintain and support each other as far as they can, where the need exists. This obligation may continue after separation and divorce, with the level of support depending on what the other party can afford to pay.

Certain jurisdictional requirements will need to be met for the Court to make a de facto maintenance order.

Family Violence

Family violence is defined in the Family Law Act to mean any violent, threatening or other behaviour by a person that coerces or controls a member of their family, or causes the family member to be fearful.

The Family Law Act further provides that, when considering the risk of family violence, the court must do so consistently with the child’s best interests being the paramount consideration.

Under the Domestic and Family Violence Protection Act 2012 (Qld), domestic violence means behaviour, or a pattern of behaviour, by a person towards another person with whom he or she is in a relationship that is physically, sexually, emotionally, psychologically, or economically abusive, or is threatening or coercive.

Domestic violence can also be behaviour that controls or dominates a person and causes the person to fear for his or her safety or wellbeing, or the safety or wellbeing of someone else.

Behaviour, or a pattern of behaviour, that amounts to domestic violence may occur over a period of time, and may be a series of acts that, when considered cumulatively, is abusive, threatening, coercive or causes fear.

Domestic violence includes coercing a person to engage in sexual activity or attempting to do so, causing personal injury to a person, damaging a person’s property, depriving a person of his or her liberty, and various threats including threatening a person with death or injury.

Please speak to us if you feel that you may be experiencing domestic violence and tell us about your situation so we can discuss how to help. We could assist with an application for a domestic violence order, advise on parenting arrangements if you have children, or represent you in Court.

If someone is seeking a domestic violence order against you, we can advise you on your options including consenting to an order without admission, asking for adjournment of proceedings so you can obtain legal advice, or contesting the order in Court.

A domestic violence order (‘DVO’) is an order issued by a Court that is designed to keep the aggrieved person safe by preventing threats or acts of domestic violence by the respondent.

A DVO will typically set out rules for the respondent to obey, and impose penalties for breaching those rules or sanction the respondent for behaviour that does not comply with the terms or conditions of the DVO.

The DVO can contain provisions preventing the person from committing domestic violence or contacting the victim. It may include provisions to stop the person from approaching you at your home or workplace, preclude the person from staying in a home that you used to share, prevent the person from approaching your friends or relatives, or prohibit the person from going to a child’s school or day care centre. A DVO may also require the person to attend counselling or undergo treatment for alcohol addiction or drug abuse.

A DVO, or protection order, may be issued by the Court if satisfied that a relevant relationship exists (as defined in the Domestic and Family Violence Protection Act), domestic or family violence has been committed by the respondent, and an order is necessary or desirable to protect the aggrieved person from domestic or family violence.

Family violence orders are referred to with different names in the various states and territories. For example, ‘Family Violence Order’ in the ACT, ‘Apprehended Domestic Violence Order’ in NSW, ‘Intervention Order’ in in Victoria and South Australia, ‘Family Violence Order’ in Tasmania, and ‘Domestic Violence Order’ in Queensland.

Even though the names of family violence orders may not be the same in every state and territory, depending on the date the order was issued, it may be enforceable in another state and territory or an application can be made for the order to be recognised interstate.

Family Mediation

Our family lawyers in Brisbane aim to help both parties reach their own agreements amicably by working through the legal issues towards a practicable and sustainable outcome through mediation.

We encourage communication, exploring options in an atmosphere of cooperation and formulating possible solutions with a view to achieve positive outcomes for separating couples.

Through mediation, we endeavour to assist the parties in reaching a mutually acceptable resolution to their family law matters such as financial settlements, child maintenance and parenting arrangements, without the financial and emotional impact of court proceedings.

A relationship breakdown and the process of divorce can be a very difficult and distressing time for everyone involved, and finding the energy or incentive to work out an agreement might seem impossible.

By adopting a pragmatic and empathetic approach, while assisting the parties resolve any family law disputes in a skilled and neutral manner, the focus is more on solutions for the future rather than problems.

We seek to reduce conflict and deflate the emotions in order to facilitate a mutually cooperative agreement, and so help each party get on with their lives as separate individuals.

It is our belief that people may be more willing to comply with solutions they have agreed to themselves regarding important aspects of their lives. In this respect, mediation can bring a sense of closure to a relationship while a contested proceeding will sometimes cause both spouses to feel like they lost.