Family Law Matters

1. I have been the primary carer of the children during our relationship. Will the children live with me at the separation?
   Significant changes were made to the Family Law Act in July 2006 statin a presumption of equal shared paretnal responsibility, which can be rebutted in circumstances of family violence, neglect or other concerning parental behaviour.
   
   If the Court finds that equal shared parental responsibility applies, then the Court must consider whether the children spending equal time with each parent is in the child's best interest and is practicable. This requires the parties to be able to effectively communicate and also usually live within close proximity to each other and also depends on the age of the chldren. If the Court finds that uqual shared time is not in the child's best interest or practicable, then the Court is requires to consider arrangements whereby the children spend significant and substanstial time with the other parent, defined to be time during the week and time on weekends and holidays.
2. My ex-partner and I cannot agree on the arrangements for the children. What happens next?
   If parents cannot agree on the arrangements for the children, then the Court will decide as a last resort where they will live and what time they will spend with the other party. The Court however, requires that the parties firstly attampt to resolve the matter between themselves and mediation is compulsory (save in limited circumstances) before an application can be filed.
3. My husband and I have separated, when can I apply for a divorce?
   The sole ground for divorce is the irretrievable breakdown of the marriage, evidenced by a physical separation of 12 months and a day, i.e. living separately and apart.
4. My wife and I have reached an agreement as to the division of our assets. Do we need lawyers or can we just sign a contract between ourselves?
   Unless the agreement you have reached is ratified by either Court Orders filed in the Family Court, or a Binding Financial Agreement which requires each of you to obtain independent legal advice and your respective lawyers can provide you with a certificate of advice. The agreement you reach is not binding and can be set aside by a Court at a later date. You or your spouse have 12 months from the date of the divorce to make an application to the Court for Property Settlement, which will override the agreement. This could be a number of year later and the Court takes into account the assets at the date of the Court hearing and not at the date of the separation.