Parenting Orders – Considerations of the Court
In child custody matters, when making a parenting order, the main consideration of the court is whether the proposed arrangements are in the best interests of the children. The court presumes that it is in the best interests of the children for parents to have ‘equal shared parental responsibility’, but it...
Mistakes made in Child Custody Proceedings – Watch Your Behavior
INTRODUCTION A traditional Chinese curse simply put is “May you live in interesting times” and ‘interesting times’ is the most charitable description of the daily happenings of those parents entering into the affray of child custody proceedings. Seeing our own client’s daily personal battles i...
Making your AVO work for you
Most people find their AVOs to be highly effective in preventing violence, intimidation and harassment. You have every reason to be hopeful that the defendant to your AVO will take proper notice of your AVO, and that you will have no further trouble. In the end, however, an AVO is an order of the court not jus...
Women and Family Law
This is the tenth edition of Women and Family Law. It states the law as at April 2014 that applies to married and de facto couples (including same sex de facto couples) after relationship breakdown. This booklet provides a starting point for finding out information about the law. It provides some answers to comm...
Share the Care Parenting Plan – Collaborative Parenting Apart
Divorce and separation are painful for everyone involved–particularly children. At this challenging time children need support, love and contact with both parents. Some certainty about the future is also very important for everyone. A written parenting plan, worked out between parents, will help clarify th...
An Invitation to Split!! Binding Financial Agreement / Pre-Nuptial Agreement
Wallace & Stelzer and Anor  FamCAFC 199 Background to the case `A couple, known by the court as Mr Wallace and Ms Stelzer, met in 1998 at the Sydney club where Ms Stelzer worked soon after Mr Wallace split from his first wife. He was 51 years old, divorced and came into the marriage with an "ove...
Separation is defined as the bringing to an end of a marriage or de facto relationship.
At GMH Legal Lawyers we believe that separation is a major step during which individuals may need help and information in order to cope with the changes. Decisions must be made about the division of property, money and belongings and potentially about the future care of the children.
There is no need to register a separation under Australian Family Law or to ask permission from the other party to separate. However in the event the other party disputes the fact that a separation ever took place, we always encourage our clients to confirm the separation in writing by letter, email or text message especially when they are involved in de facto relationships.
For more information please see the Family Court ‘Separation’ section.
End Of A De Facto Relationship
A de facto relationship is a relationship that two people who are not married or related by family have as a couple living together on a ‘genuine domestic basis’.
Parties to a de facto relationship which has broken down can apply to the Family Court to the Federal Circuit Court to have financial matters determined in the same way as married couples. Parties must apply for de facto financial orders within 2 years of the breakdown, otherwise parties will need the Court’s permission to apply.
If the de facto relationship was less than two years long the Court may have no jurisdiction under the Family Law Act to provide a property settlement. There may be alternate remedies available or a basis other than the two year requirement to show that a de facto relationship existed.
Court can make financial orders regarding de facto relationships if satisfied of one of the following:
- The period (or total of the periods) of the de facto relationship is at least two years
- There is a child of the de facto relationship
- One of the partners made substantial or non-financial contributions to the property or as a homemaker or parent and serious injustice to that partner would result if the order was not made
- The de facto relationship has been registered in a State or Territory
End Of A Marriage
Divorce is the legal ending of a marriage. Parties can make arrangements for property and children without being divorced but staying married can affect their rights, their financial responsibilities and their Wills.
To apply for a divorce, the applicant must complete an Application for Divorce (sole application or joint application) and file it with the Court. The date of separation is recorded on the Application for Divorce and is sworn or affirmed to be true and correct.
The applicant will need to satisfy the Court that the parties have lived separately and apart for at least 12 months before filing the Application for Divorce and that there is no reasonable likelihood of resuming married life. It is possible to live together in the same home and still be separation
If the applicants/the parties cannot prove that they have been separated for at least 12 months before filing the Application for Divorce, a divorce will not be granted by the Court.
Separated But Living Under One Roof
Separation can take place under one roof. See Family Law Court ‘Separation under one roof’ section.
To determine where a separation has taken place, the Court will examine a number of different factors including:
- Change in sleeping arrangements
- Reduction in shared activities or family outings
- Decline in performing household duties for each other
- Division of finances
- Any other matters that show the marriage has broken down
Your Affidavit (sworn statement) to the Court should also explain:
- Why you continued to live in the same home following separation and what intention, if any, you have of changing the situation
- Living arrangements you made for any child of the marriage under 18 years during the time you were living under one roof
- What Government departments you have advised of your separation if you receive government benefit (e.g. Centerlink, Department of Human Services etc.)
Call the experienced team at GMH Legal to assist you in your matter.
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