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FAMILY LAW
Separation / Divorce
- The only ground for divorce is an irretrievable breakdown of the marriage evidenced by 12 months separation.
- You can apply for a divorce after being separated for 12 months.
- If you have been married for less than 2 years you will be required to undego counselling and evidence of your attendance will need to be attached to your divorce application.
- When the divorce has been granted you will receive a decree nisi. After 1 month and 1 day this will become a decree absolute. You are then free to remarry.
Property
A property settlement application to the Court is subject to the rules of mediation and may be commenced at anytime after separation. However, if you have not commenced a property settlement prior to a divorce application, then you must commence a property settlement within 1 year and 1 day from the date your divorce becomes absolute, otherwise property settlement can only be settled either by mutual agreement or litigated in the State courts.
If you have been in a de facto relationship you may have rights under the Property Law Act 1975, if;
- you have been in a relationship for at least 2 years; or
- there is a child or children under the age of 18 years; or
- one of the spouses has made a substantial contribution to the relationship and the failure to make an order would result in a serious injustice.
De facto property matters are not dealt with in the Family Court. The appropriate court is either the Magistrate, District or Supreme Court and will depend on the value of property to be settled. You only have two years after separation to make a claim for a property settlement or you may be unable to finalise the property settlement.
Mediation
If you and your partner are unable to agree about issues relating to children or property, it is advisable to consider settling the matter with the assistance of a mediator, Relationships Australia (or other like organisations), the Legal Aid conferencing process.
Mediation is a process utilising a mediator (a neutral third person) to assist you and your partner to find the common ground between you which may help to find a common ground to develop ways to resolve the issues in dispute.
If you and your partner reach an agreement, this can be used as the basis for Consent Orders in the Court. Research shows that orders made by agreement work better and last longer than those imposed by a Court.
Mediation before an application is filed in the Court is required under the Family Law Act 1975 and is deemed as being pro-active to resolving issues in dispute between the parties.
Should either of the parties file an application in the Court before participating in a mediation conference, then the Court will, on the first appearance before the Court, order the parties to attend a conference before it begins to hear the matter.
For more information contact:
Legal Aid Queensland 1300 651 188
Family Relationship Advice Line 1800 050 321
Relationships Australia 1300 364 277
Youth & Family Service (Logan) 3826 1500
Children
The Family Law Act states that “In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration”. In essence, this means that usually the interests of the child is more important than those of the parents. This Act provides for both parents to continue having joint parental responsibility for the care, welfare and development of the children.
If a person wants to apply to the court for a parenting order they will need a certificate from a registered family dispute resolution provider which confirms that an attempt at family dispute resolution was made. An exception may apply in cases involving family violence or child abuse and professional advice should be sought from a Family Dispute Resolution service or a lawyer.
Sharing the care and responsibility of children
When the parents cannot reach an agreement about where and with whom the child/ren will live and how responsibility for the child/ren’s day to day care are determined, then either parent may file an Application for Final Orders in the Family Court for the purpose of the Court deciding the matter.
Children’s orders may be extended to include other family members or a spouse (married or de facto) that has been acting in the role of a parent to the child/ren for an extended period.
The prevention of a spouse from exercising contact is a very difficult matter to obtain by way of an order from Court and will usually only be made in very exceptional circumstances. It is advisable to consult with a solicitor first.
Either parent can apply to the Family Court for an order relating to a specific requirement in the child’s upbringing, for example, which school the child should attend, the need for medical treatment or participation in cultural or religious practices.
Can a child be moved overseas?
The answer to this question is very complex and may be determined, one way or the other, on a number of factors. Please see a solicitor for more advice.
If you suspect that your child may be removed from Australia without your consent, you should IMMEDIATELY lodge an objection to the issue of a passport with the Department of Foreign Affairs (phone 3405 4799) and contact the Federal Police on (phone 3222 1222) to have the child/ren placed on the “watch list”. Then, commence urgent proceedings in the Court by way of an Application for Final Orders placing the child/ren in your care.
Can a child be moved interstate/intrastate?
Children can be moved interstate/intrastate. However, it may be necessary for the spouse moving interstate/intrastate to provide the Court with a sound reason for doing so and satisfy the Court that contact arrangements for the spouse not living with the child/ren are reasonable.
The Court cannot prevent a spouse from moving interstate/intrastate as prevention is considered to be contrary to their rights pursuant to the Constitution of Australia. However, pursuant to the Family Law Act, a minor can be ordered to be returned to their previous environment from which they were removed.
For more information contact:
Legal Aid Queensland 1300 651 188
Family Relationship Advice Line 1800 050 321
Relationships Australia 1300 364 277
Youth & Family Service (Logan) 3826 1500
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