Frequently Asked Questions

FAMILY LAW

My ex partner and I disagree about parenting arrangements for our child.  Can I apply to the Court so that the Court can make a decision?

If your case is urgent, and there is a risk that your child may be at harm, then you can apply directly to the Family Court or Federal Magistrates Court for Parenting Orders.  If there is no risk of harm to your child, before approaching the Federal Magistrates Court or Family Court for Parenting Orders, you must make a genuine attempt to resolve your parenting dispute through mediation or counselling with a Family Dispute Resolution practitioner.

You can find a Family Dispute Resolution practitioner in your local area by visiting www.familyrelationships.gov.au or by contacting us for a referral.

I have been in a relationship for 10 years, but my partner and I have never married.  Are my rights different from someone who has been married?

If your defacto relationship broke down after March 2009, then as long as you were in a relationship for at least 2 years, or if there is a child of the relationship, or you have purchased property together, your rights to final property settlement Orders would be the same as someone who had been married for a similar time.

My children say that they do not want to see their other parent.  Can my children make their own decision about where they want to live?

The Court can make Orders about where a child may live or the time they spend with each parent up until the child turns 18.  The Court may take into consideration the child's views, depending on the child's maturity and understanding.

The children live predominantly with me and I am their primary caregiver.  Can I move from the local area without the other parent's consent?

Generally, if the proposed relocation affects the time the child spends with the other parent or affects changeover arrangements, then the other parent's consent or an Order of the Court will be required before you relocate.  If you don't obtain the other parent's consent or an Order allowing  you to relocate, then there are grounds for the Court to make an Order for the child to return to the other parent's care or to the location where they previously lived.

I have a Parenting Order but my ex spouse will not let me see the children.  What do I do?

If you have attempted to resolve the dispute amicably, then you can make an Applicaton for Contravention.  This means that the other party has contravened, or not acted in accordance with an existing Order.  If the Contravention Application is successful, the Court will treat breaches of Orders seriously.

I have separated from my ex spouse.  We own a house together.  If I move out, are my rights affected?

Both parties are entitled to live in a house after separation irrespective of whose name the house is owned in.  You cannot be forced to move from the property unless a Court orders it.  However, should you choose to leave the home, this will not affect your entitltment to the property.  If you need to move out because you are at risk or harm if you stay, then you need to seek urgent legal advice and move out.

I have separated from my partner and we have agreed how to divide our assets.  Do I need a formal document to record the agreement?

Yes.  To have a final property settlement, you must have an Order of the Family Court or Federal Magistrates Court or a Binding Financial Agreement.

If you do not have one of these documents, you have not had a final property settlement and your financial relationship with your ex partner may still exist.

I have been separated for over 12 months, but my spouse will not sign an Application for Divorce.

If you have been separated for 12 months, you can apply for a Divorce.  You do not need the consent of your ex spouse and you can make the application on your own behalf.  You will need to serve your application on your ex spouse so you will need to know where you may be able to find them.

I have just gotten a divorce.  Is my Will still valid?

No.  In the event of marriage or divorce, your Will is revoked.  You will need to have your Will re-drafted following your marriage or divorce.

If I get divorced does that mean parenting and property matters are resolved at the same time as my divorce?

No.  A divorce only ends the legal marriage between you and your spouse.  If you require a Court to determine property and parenting matters also, then that application is made separately from your Application for Divorce.