Family Law FAQs

Yes, you can. In fact, the sooner you finalise your Property Matter the better it is for you, as you can then be sure that your financial interests are protected, and that the other party does not have a claim to your assets.

No. Regardless of whether the property is in one name or in joint names, it will most likely be treated as a matrimonial asset. This is dependant on a number of things such as what the parties have contributed, and the length of the relationship. As such, just because your name is not on the title or just because you are not the registered owner, does not necessarily mean that you do not have an interest in the property in question.

No. Chances are you have looked after the children and taken care of the household chores such as cooking and cleaning. These are called non financial contributions and are certainly taken into account by a Court when considering what is fair and reasonable in any property settlement. This means that you will be entitled to part of the property pool. To find out how much, arrange an appointment with our office so that we may provide you with our advice.

No. Australia has what is called a “no-fault system”, which means that the reasons as to why a relationship has broken down, such as an affair, does not impact the way that property is split. If however, your partner has wasted your assets in the course of such an affair, then the Court will take that behaviour into account when they consider how to fairly divide the property pool.

If the value of the home is disputed then yes, you will most likely need to have the property valued. Generally, one expert is appointed by the parties to value the property and the costs of that expert are shared between the parties. The costs of the expert valuer will vary depending on who you engage.

Before you take these steps however, you should first obtain an appraisal so that you can get a general idea of what the property may be worth. You may wish to obtain a few valuations and agree to adopt a median price, thereby avoiding the costs of an expert valuation.

An appraisal can be conducted by your local real estate agent. Contact us Gold Cost Solicitors today if you wish to discuss the matter further or require a list of some experienced real estate agents that may be able to assist.

No. How your property is divided will depend on a number of things including the length of your relationship. Generally, we assess your entitlement by taking the following steps:-

Firstly, we ask you to identify the property pool. It is therefore important that you have an idea of the value of your assets and liabilities when you come and see us.

Secondly, we will ask you what financial and non financial contributions have been made by you and your partner at the commencement of the relationship, during the relationship and post separation.

Thirdly, we will look at whether any adjustments will need to be made for either party in relation to future needs. We will therefore ask questions regarding your earning capacity; whether either of you have health concerns and how any child/ren of the relationship will be cared for.

Finally, and once we have identified the likely range of your entitlement, we will then discuss how best to structure any offer and/or Agreement to ensure that it is just and equitable for both parties.

If you separated after 19 March 2009, the same rules will apply.

If you separated prior to 19 March 2009 your matter is covered by different legislation being the Property Law Act instead of the Family Law Act and some differences will apply mostly in relation to spousal maintenance and how your Superannuation is treated.

Importantly, if you separated prior to 19 March 2009 and you have not finalised your Property Matters, you should contact us urgently as your time limitation to do so will have already expired.

Contact us today to discuss your matter further.

This will largely depend on your ability to refinance the mortgage over the property into your name alone. You may also be required to obtain a further loan in order to “purchase” the other party’s interest in the property. Complications may arise if both parties wish to keep the home. In this case, a Court may need to determine the issue or the parties may then decide that the property should indeed be sold. You should seek independent financial advice in relation to refinancing your property and in relation to any tax implications for any investment properties.

Yes, you can. You should consider entering into a Binding Financial Agreement.

If your partner has left and has established a new place of residence, it is not unreasonable to say that you now have possession of the home. As such, your privacy should be respected and your partner should not be allowed to attend the home without your consent. If you are afraid for your safety, or your partner is coming into the house without your prior consent, then you should speak to us today to find out whether it is a good idea to change the locks, and what complications may arise.

This will depend on your circumstances. You will need to provide us with your instructions in relation to both parties’ earning capacities as well as your spending needs. We can then assess your claim and provide our advices in relation to what you may be entitled to. For De facto couples, this option is only available if you separated after 19 March 2009.

No. The laws surrounding Binding Financial Agreements (BFAs) are complex and the requirements placed on Solicitors are strict. As such, we are required to review the document in full and provide you with our detailed advices before you are able to sign the Agreement.

At OMB Solicitors, we pride ourselves on our diligence and commitment to adhere to our obligations and duties to you as our client and under the law. As such, we will not cut corners or rush the process without following the appropriate procedures. To discuss your BFA further and the steps required, contact us on familylaw@omb.com.au.

The only recognised way you can document your Agreement is by way of Consent Order or Binding Financial Agreement for Property Matters, or Consent Order or a Parenting Plan for child matters.

Both documents serve to finally determine the parties’ financial relationship, meaning that whatever items you have agreed you will keep will remain yours without the other party being able to claim on those items. There are various differences, including but not limited to the following:-

1. A Consent Order can deal with both property and children’s matters. A BFA can only deal with Property Matters;
2. Consent Orders are sometimes quicker, easier and cheaper to enforce than a BFA;
3. A BFA requires both parties to have independent legal advice. A Consent Order does not; and
4. Most of the time it is quicker to enter into a BFA as it is binding once both parties execute the Agreement, whilst a Consent Order can incur delays as you have to apply to the Court and wait for the Orders to be sealed.

This list is by no means exhaustive and you should speak to us about which option is best for you.

No. A Consent Order is filed with the Family Court, however, there is no appearance required.

Mediation is a method of negotiating with the other party on a confidential basis and with the assistance of an independent, specialised third party whose role is to facilitate discussion and hopefully, a settlement.

Mediation is mandatory for children’s matters if you want to start Court Proceedings. Certain exemptions apply and we can advise you if you qualify for one of the exemptions. It is not at this stage, mandatory for Property Matters, although this may change in the future.

Mediation is a good tool to try and resolve a matter when private negotiations are not providing results. In many circumstances, Mediation becomes a party’s last opportunity to settle a matter before going to Court.

The Court’s are also appreciative of the benefits of Mediation, and in most circumstances, if the parties have not already done so (or sometimes even where they already have), the Court will Order parties back to Mediation before the matter progresses in the Court system with a view of trying to resolve the matter at minimal expense and with minimal exposure for the parties to the stress and delays of Court proceedings.

Who you engage will depend on the type of matter you have and what you are prepared to pay in relation to Mediator’s fees.

There are numerous options available ranging from government centres such as Relationships Australia or the Family Relationship Centre which are at minimal costs; to private Mediators who may be Solicitors or Barristers that have practiced or continue to practice in the Family Law field.

The costs of a private Mediator will vary depending the complexity of your matter, the amount of preparation required, whether the matter proceeds for a half or full day and will also depend on the level of experience of the Mediator.

You should also be aware that not all options will allow you to have a Solicitor present during the Mediation and as such, if this it is important to you to have a Solicitor present, you should make this enquiry when booking a Mediator. Alternatively, contact our office to discuss the options available and what may be most suitable in your circumstances.

No. “shared parental responsibility” is not a term used to refer to where the children will live. It means that both the mother and father have a right to have a say in the major decisions for their children such as, where they go to school and what religion they practice. There are exemptions to this and you should speak to your lawyer as to whether they apply to you.

There are various factors which will affect where children will live and what time they should spend with each parent. You are not guaranteed shared care and you should speak to us to find out what may be a reasonable and acceptable arrangement.

Yes you can. It is unlikely that the police will get involved if there are no Orders in place.

If you have Orders, you can enforce them. If you do not have an Order, provided always that the children have been taken interstate, or that Australia has jurisdiction in the Country where the children are taken, you are able to commence proceedings in the Federal Magistrate or Family Court for the urgent recovery of the children.

You should not delay, as any delay could take your children further away or make it more difficult for any authorities to locate them. It may also make it more difficult to get a Court to bring the children back if the children have already settled and established a comfortable routine in the new location.

Yes. Parents have an obligation under the Family Law Act to ensure that they make decisions and act in the best interests of the child. This includes ensuring that the child is provided with the opportunity to have a meaningful relationship not only with each parent, but with those parties who have an interest in the wellbeing of the child, including but not limited to grandparents. Talk to us today to discuss your rights in this regard.

No. A parent’s time with a child is not for the parent’s benefit but is instead, for the child’s benefit. Preventing a child from seeing one of their parents without reason can be viewed as a form of abuse and will not be looked at favourably by a Court.

There are of course numerous exceptions to this including but not limited to situations where a child may be at risk in one parent’s care due to medical or health concerns, drug or alcohol use or in cases of family violence. Even in these circumstances, you should not simply deny the other parent from spending time with the children but should instead, seek independent legal advice to negotiate suitable options such as the use of a supervised care centre. Alternatively, you should take proactive steps to inform the Court of the change in parenting arrangements and risks to the child so that the Court may make an appropriate determination of what is to occur.

The law provides you with the freedom to live where you choose, however, if you are the primary parent, you have an obligation to ensure that where possible, the children are able to have a meaningful relationship with both parents.

If you are relocating only a short distance away from where you currently live, you will need to notify the other party of the new address where the children will be residing, unless of course, you have fear for your safety or that of the children. Relocating a short distance away rarely poses problems as the children will still be able to maintain a meaningful relationship with the other parent.

If you are relocating a large distance away, interstate or internationally, you will also need to let the other parent know. This is because moving such a distance away may make it difficult for the children to have a meaningful relationship with the other parent. You may also need to enrol the children in a new school which is a decision that should be made jointly with the other parent.

You should speak to an experienced Family Lawyer before you finalise any plans to relocate in such circumstances, as you may face a Court Application from the other parent which may result in an Order requiring the children to move back. To avoid confusion and unnecessary costs, contact us today to discuss your matter further.

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 you are concerned about your safety, the safety of your children or your property, or the safety of a family member or work colleagues, you should contact the police and obtain urgent assistance, or alternatively, contact us urgently to find out more about making a Domestic Violence Order Application.

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. The terms of a DVO should not be taken lightly.

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.

Yes. Relatives, associates and children may be protected by a Domestic Violence order if they are named in the Order. You can name a co-worker, a roommate or parties who attend the same church or club as you if necessary.

Yes. The Court has the power to ask you whether you have weapons or access to weapons, or if you have a weapons licence. You can be asked to relinquish those weapons and your licence.

Yes. If the conditions of an Order include what is referred to as an “ouster order”, you can be asked to vacate the premises where you lived together or previously lived with your former spouse and may also prevent you from attending the workplace or other such establishments where your former spouse frequents. If you are Ordered to vacate premises in which you previously lived, you will be allowed the opportunity to attend the premises most likely under the supervision of the Queensland Police to collect your essential belongings.

No. You have the following options available to you:

1. You can accept the Order being made against you and admit the contents of the application and the allegations made therein; or
2. You can accept the Order being made against you on a “without admission” basis, meaning that you do not admit to the contents of the Application or the allegations made therein.

Alternatively, you can contest the Application and the matter will proceed to Trial.

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.

Yes. In certain circumstances, a Court can make a Temporary Order when you initially file proceedings, and can be extended between further hearings or up until the matter proceeds to Trial. You should note however, that the other party can apply to the Court to have the Order revoked. Contact us today to discuss you options further on familylaw@omb.com.au.