Family Law

The unfortunate reality of today’s society is many marriages end in divorce. This can leave uncertainty and dread for what the future holds. We understand the pressure that comes with separation and the strain this can leave on relationships. We’re here to answer all your questions and help you to receive the best possible outcome.

There are various processes for handling family law disputes and this does not necessarily mean litigation or Court. In most cases, family law disputes can be resolved through dispute resolution processes where both spouses negotiate terms to resolve the issue.

Domestic Violence Separation Divorce Children & Parenting
Property Settlements Binding Financial Agreements De facto Relationships Back to Services

Some important factors in Family Law in Australia are:

  1. Best Interests of the Child: In any family law matter involving children, the primary consideration is always the best interests of the child. This includes their physical and emotional wellbeing, their relationship with both parents, and their views and wishes, depending on their age and maturity.
  2. Property and Financial Settlements: The division of property and assets is a significant factor in family law matters. This includes considering each party’s financial and non-financial contributions, future needs, and the practical effect of any proposed settlement.
  3. Domestic Violence: If there is a history of family violence or abuse, this will significantly impact family law matters, particularly in relation to child custody and visitation arrangements.
  4. Parenting Arrangements: Decisions need to be made about who the child will live with, how much time they will spend with the other parent, and how major decisions about the child’s life will be made.
  5. Spousal Maintenance: In some cases, one party may be required to provide financial support to the other after separation or divorce. This depends on factors such as the parties’ respective incomes, their capacity to earn, their age and health, and the standard of living during the relationship.

6. Legal Representation: It’s important to consider whether you need legal representation, and if so, to find a lawyer who specializes in family law.

7. Mediation and Dispute Resolution: Before going to court, parties are usually required to attempt to resolve their disputes through family dispute resolution or mediation.

8. Court Proceedings: If matters cannot be resolved through negotiation or mediation, it may be necessary to go to court. This involves considering the costs, time, and emotional toll of court proceedings.

9. Impact of Separation on Wills and Estate Planning: Separation can have significant implications for wills and estate planning, and these issues need to be considered and addressed.

10. Emotional Wellbeing: Family law matters can be emotionally challenging, and it’s important to consider the emotional wellbeing of all parties involved, including seeking support from counselling or mental health services if needed.

Domestic Violence

Being subject to domestic violence can be a disturbing and frightful experience. We can advise on the best methods for protecting you and your family.

Equally being accused of domestic violence can be a traumatic experience. We are able to assist with applying for or defending domestic violence orders.

Domestic Violence FAQs

Domestic violence can be defined as a pattern of behaviour in any relationship that is used to gain or maintain power and control over an intimate partner. Abuse is physical, sexual, emotional, economic or psychological actions or threats of actions that influence another person.

Domestic Violence can include and is not limited to any of the following:

  1. Injuries suffered by you or threats to harm you;
  2. Damage to your property or threats to damage your property;
  3. Intimidation or harassment such as stalking behaviour or repeated and excessive phone calls or text messages;
  4. Indecent behaviour towards you without your consent;
  5. Emotional or psychological abuse;
  6. Economical abuse;
  7. Threatening or coercive behaviour towards you; and
  8. Any other conduct that aims to control or dominate you causing you to fear for your safety or wellbeing or that of someone else.

It is important to note that an act of violence does not need to be personally committed; a person only has to threaten to commit it.

If there is evidence of domestic violence within the marriage, parties will go straight to Court and avoid dispute resolution processes. Domestic violence is when one person in the relationship, participates in violent or threatening behaviour that causes a family member to feel controlled or fearful. This may include physical or sexual abuse, emotional or psychological abuse, economic abuse, deprivation of liberty, stalking or other circumstances. If you have experienced any form of domestic violence, an Application for a Protection Order can be made at any Magistrates Court.

If the matter is urgent, contact the police for immediate assistance. Alternatively you may contact our office to arrange an appointment with our experienced Solicitor to discuss your legal options.

No. If however, an Order is granted against you, and you breach the terms of the Order, criminal proceedings may be commenced against you and you may be convicted of a criminal offence.

Yes. The Court is able to make an Order even in circumstances where you are not notified about the Application or do not appear in Court.

A Domestic Violence Order takes effect on the date it is made and will be in place for the term of the Order, which may vary depending on the circumstances. Generally, the Order will be in place for one or two years but can be made for longer depending on the circumstances. Please make an appointment for more specific advice.

Coercive control includes a pattern of behaviours or a ‘course of conduct’ which is cumulative and designed to exert power and control of another person in a domestic relationship and create an uneven power dynamic.

It creates a climate of fear, isolation, dependence by the victim on the person controlling them and humiliation. It usually involves manipulation and intimidation and is designed to disempower the victim.

It may include the following behaviour: Degrading put-downs;

  • Gradual isolation from family and friends;
  • Humiliation and threats;
  • Limiting or controlling access to money;
  • ‘Gaslighting’;
  • ‘Micro-managing’ a partner’s life – including what they wear, and when and what they can eat and when they can sleep or leave the house;
  • Monitoring movements – including through electronic devices; and
  • Using technology and social media to control and manipulate.

If you are concerned you are experiencing these types of issue or are being accused of controlling behaviour call our office to make an appointment for further assistance.

Further information can also be found here.

Separation

Separation can be one of the most traumatic experiences a person can go through. We are here to ensure your legal rights are protected and do what we can to remove as much stress as possible.

Separation FAQs

While it is possible to live in the same residence and still be separated, further steps must be taken to prove your separation. To do this you will need to file an affidavit which explains the change in your marriage. An affidavit is a written statement which presents the facts of a case and can be prepared by a party or witness. Examples of change in the marriage could include different sleeping arrangements, separate bank accounts, decline in performing house hold duties for one another and many more.

If your divorce is successful, clauses of your will may be effected and make them invalid. This may include, power of appointment in favour of the former spouse, the appointment of former spouse as executor, trustee or guardian and any gifts left to your former spouse. At Mott and Associates, we can advise on your will to incorporate any changes that need to be made.

Divorce and Separation

Divorce is the legal process in Australia for ending a marriage.  We are often able to conduct divorces on a fixed professional fee basis depending on the compexities involved. Our experienced lawyers realise that the process of filing for a divorce can be an emotional and stressful time.

Contact us and we will take care of all the paperwork and ensure the process runs smoothly.

Divorce and Separation FAQs

Spouses can make an application for a divorce after 12 months and 1 day from their separation date. This can either be a joint application, where both parties make the application together, or a sole application, where one party makes an individual application. To have a successful application in Australia, the marriage must have broken down with no likelihood of getting back together. There is no need to establish that one spouse was “at fault” for the breakdown of the marriage.

Application for Divorce is the process entered into in order to obtain a divorce order, which formally terminates a marriage.

Contemplating a formal divorce can seem a daunting, unfamiliar and cold process.  We offer a fixed fee cost arrangement for standard  (contact our office for conditions) divorce matters that allows us to undertake the process on your behalf.

Separation and Divorce can impact other aspects of yours and your family’s legal rights.

Some other matters for consideration when contemplating a Divorce are:

  • the time limits for making an application for property division or spousal maintenance;
  • whether there are any properties held as joint tenants with your spouse; and
  • to take urgent action to update your Will, Power of Attorney and beneficiary nominations (i.e. superannuation) to reflect the change in circumstances.

Our solicitors can provide you advice and assist you with all of the above.

Contact our office for further information or to make a time to meet with us.

It is dependent upon the circumstances outlined in an application as to whether parties are required to attend their divorce hearing.  It is also subject to the requirements of the Court in some instances.

However, neither party to a divorce are likely to be required to attend the hearing if the application is made jointly, even if there are children of the marriage under the age of 18 years.

If your application is made solely and there are children under the age of 18 years, it is likely you will be required to attend the hearing.

Not seeking a divorce can result in several downsides, including:

  • Legal complications: If you are separated from your spouse, but have not obtained a divorce, you may face legal complications in relation to property settlements, financial arrangements, and decision making for any children.
  • Emotional difficulties: Living in a state of legal uncertainty can lead to emotional difficulties and stress, particularly if you are trying to move on with your life and start a new relationship.
  • Financial implications: If you are separated but not divorced, you may not be able to remarry, and this can have financial implications, particularly if you are relying on your spouse’s income or if you are entitled to a share of their estate.
  • Impact on children: Not seeking a divorce can also have a negative impact on children, as it can create confusion and uncertainty about their future and their relationship with both parents.

Children and Parenting

Issues around contact with children can be the most difficult to resolve. Contact us and we will assist in resolving whatever issues are in dispute.

Children and Parenting FAQs

When children under 18 years of age are involved, the Court must be satisfied that proper arrangements are made. The primary goal of the Court is to ensure the child receives the best possible outcome. To do this the Court may assess whether psychological or physical harm could come to the child, whether the child will benefit from a meaningful relationship with both parents and many other considerations. If equal custody is granted by the Court, the parents must agree to an arrangement of shared time. In the event of a disagreement between parents, dispute resolution processes will occur and if this fails, a certificate to commence court proceedings in the Federal Circuit Court must be issued by the dispute resolution practitioner.

If contact cannot be agreed between the parents we advise the following:

  1. Referral to an independent lawyer who can discuss the issue with both parents and advise on a likely outcome; and
  2. Mediation to attempt to resolve the issue between the parents.

If an independent lawyer or mediation does not work then usually the only option is commence proceedings in the Federal Circuit Court or the Family Court.  This is an expensive option however and should be avoided if possible.

A parenting plan is an agreement between parties as to contact.  Parenting plans are not binding and should only be used if the parties are able to generally agree but just want to document the agreement between them.

Consent orders are similar to a parenting plan but are filed and stamped by the court.  They are binding on the parties and are not changed by the courts unless there are reasonable circumstances that require modification.

Mediation is where both parties meet with an independent person (the mediator) to discuss the issues and attempt to reach a compromise.  It can be done via phone or in person and the parties can be in separate rooms or all in the one room if agreed.

The Family Law Act 1975 (“Act”) recognises the significance of children having a relationship with those who are considered important to their welfare, care, and development, which includes grandparents. The Act does not give grandparents an automatic right to see their grandchildren; rather, it provides them with a right to make an application to the Courts to seek Orders to maintain contact or seek custody of their grandchildren. But before a Court can grant Orders, the Court must determine what the “best interests of a child” are, including whom the children should spend time with or live with.

Grandparents (or anyone who has and wants to continue an ongoing relationship with the children) can apply for an order to spend time with them. Children have a right to spend time on a regular basis with their parents and other significant people, including grandparents, unless it is not in their best interests.

Consequently, while grandparents have no explicit right to maintain a relationship with a grandchild, a grandchild has the right to maintain a relationship with their grandparents. It is this right, among others, that are considered when an application is made for a court order to include or exclude a grandparent in a child’s life.

If a grandparent wishes to apply for an order they are required to attend family dispute resolution mediation and demonstrate a genuine effort to resolve the matter. Generally, the Family Law Act encourages people to manage conflicts among themselves and to use legal processes as a matter of the last resort.

Parties under an Order are legally obliged to comply. An aggrieved party can apply to the Courts to implement the consequences of non-compliance. Non-compliance can be due to failing to obey the order, making no attempt to obey the order, or if a third party (such as a new partner of a parent) gets in the way of the order.

The Order will contain a range of consequences for non-compliance, which can be of varying severity. For minor breaches, the Court can require parties to attend parenting programs, compensate for lost time with a child, change orders to favour the aggrieved, and apply financial penalties. For serious offences, the Court can order community service, fines or even imprisonment.

Property Settlements

Property settlements are when a two parties are separating and need to divide their assets and separate any liabilities they may have had as a couple (e.g. a mortgage). Property settlements can be simple if the parties agree and can be completed by filling in consent orders,having the orders filed and stamped by the court.

If the parties do not agree on how the assets are to be divided we advise that both parties engage an independent lawyer to go through the assets and discuss what the likely outcome would be if both parties ended up going to court. The lawyer who gives this advice will not act for either party and only jointly advise the parties. This is a relatively new concept in Australia and one we think is excellent for avoiding costly disputes.

If the independent lawyer approach does not work the next option is mediation. Though costly, it is still a much better option than going to court or attempting to settle the dispute via lawyers negotiating by letters.

If mediation does not work then court proceedings are the last option. Proceedings can be costly and take years to resolve in the courts. Sometimes however it is inevitable.

Porperty Settlements FAQs

Binding Financial Agreements (BFA)

The Family Law Act allows couples to sign financial agreements prior to marriage to allow the division of property to be agreed up front. Although these agreements are seen as a very difficult conversation to have they can avoid a lot of issues if a relationship breaks down. These agreements are also useful when one or both parties have significant assets prior to commencing the relationship and they wish to ensure if the relationship does breakdown they are able to keep those assets.

A BFA under the Family Law Act 1975 (Cth) must meet several key requirements to be considered legally binding. These requirements ensure that the agreement is fair and that both parties fully understand its implications.

Binding Financial Agreements FAQs

  1. Written Agreement: The BFA must be in writing and signed by both parties.
  2. Independent Legal Advice: Each party must receive independent legal advice from a legal practitioner about the effect of the agreement on their rights and the advantages and disadvantages of entering into the agreement.
  3. Legal Advice Certificate: The legal practitioner who provided the advice must give a signed statement confirming that the advice was given. This statement must be attached to the agreement.
  4. Voluntary Agreement: The agreement must be signed voluntarily, without any undue influence or pressure.
  5. Original and Copy: After signing, an original copy of the agreement must be given to one party, and a certified copy must be given to the other party.
  6. Not Terminated or Set Aside: The agreement must not have been terminated or set aside by a court.

If these requirements are not met, the BFA may not be legally binding and could be set aside by a court. It’s important to note that the court does not assess the fairness of a BFA. As long as the agreement meets the legal requirements, the parties are bound by it, even if it is not considered ‘just and equitable’.

The Family Law Act of Australia allows couples to sign financial agreements for them to formalise their agreement about the division of property, in the event of a breakdown of the relationship. These financial agreements are called “Binding Financial Agreements”, or BFAs. Although it might be an awkward or difficult conversation to have with your partner, BFAs can help prevent lengthy and expensive property division proceedings in a Court. A BFA is also an alternative to applying for Consent Orders in the Court.

Consent Orders are just as they sound – an agreement made by the consent of the parties, which are formally made into orders by the Federal Circuit and Family Court of Australia, or a local Magistrates Court (in Queensland) depending on your circumstances. If you have separated from your partner, whether de facto or married, you can choose to apply for Consent Orders. If your matter relates only to property, does not involve parenting matters, and you both live within the same Court District, then you can apply for Consent Orders to be issued from your local Magistrates Court.

This strategy is not limited just to couples prior to their marriage (which is sometimes known colloquially as a “pre-nup” or a “pre-nuptial agreement”). Couples, including de facto couples, can choose to make a BFA at any point in their relationship – whether this is:

  • pre-cohabitation, for de facto couples or married couples; or
  • during the relationship, for de facto couples or married couples; or
  • after separation, where one person moves out of the home or both people agree on a date of separation but live in the same house (this is a legally technical area and might trip you up if you are not careful, so you should seek legal advice if this situation applies to you), for de facto couples or married couples; or
  • after divorce, for married couples.

Couples who fall into any of the above categories, or individuals with significant assets who are about to enter a new relationship, should consider whether a BFA is right for them.

This will depend on your circumstances. If you have not separated from your partner, then a Court cannot make Consent Orders so a BFA is your only option if you want to formalise your agreement. As a BFA is make without the intervention of the Court, they are not orders which can be enforced. This means that if one party does not do what they say they will under the BFA, there is no ability to bring contravention (breach) proceedings against that party and a fresh application to the Federal Circuit and Family Court of Australia will need to be made. The advantage of BFAs is that they are generally quicker to put together, if both parties agree on the division of property, and a filing fee is not payable. On the other hand, Consent Orders can be enforced against a party who breaches them. If you have concerns that your partner will not do what they have agreed to, then this is most likely your best option. The disadvantages of Consent Orders is that you do have to pay a court filing fee, they generally take longer to put together, and may take some time to be returned from the very busy Federal Circuit and Family Court of Australia (who deal with Family Law matters from all over the country) or the local Magistrates Court (in Queensland) if you are able to apply there.

Even if you and your partner agree about how your property will be split if your relationship breaks down, the Family Law Act of Australia says that you need to get independent advice about the BFA. Any agreement reached will not be effective unless, among other requirements, each of you receives independent legal advice. Your lawyer will need to talk you through the effect of the BFA on your rights, how it is different from what the Court would consider (if the matter was litigated), and the advantages and disadvantages of the BFA to you. If you have any questions about the process involved, please do not hesitate to contact our office.

De facto Relationships

What constitutes a de facto relationship is a complex issue. Many people believe that there is a short time frame of living to together (usually 8 – 10 weeks). This is not correct however and it depends on the nature of the relationship and the financial or other support provided between the parties rather than the time together.

Book an Appointment

Planning for the future is a vital step in ensuring that your wishes are respected and your loved ones are taken care of. At Hopper Mott Bunting Lawyers we are committed to providing expert legal advice and personalised service in all aspects of wills and estates. Book an appointment with us today to discuss your needs and find out how we can assist you.

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