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In the Family Court, the best interests of the child are paramount. The Court must consider a number of factors when deciding where a child should live. The Court will consider the wishes and views of the children, but the weight given to these wishes will depend on the child’s level of maturity and understanding, and whether their views have been influenced by anybody else. There is no prescribed age at which children can decide for themselves. The older and more mature the child, the more weight is placed on their wishes.
If parties cannot reach an agreement through negotiation the next step is to attend mediation in an attempt to resolve issues. The parties are required to attend such mediation prior to commencing proceedings in the Family Court. There are a number of forums in which this can be achieved, for instance, Relationships Australia or an accredited Family Dispute Resolution practitioner. Parties must provide a certificate to the Court confirming they have attempted such mediation. There are some exceptions to the requirement of mediation, such as family violence, urgency or if a child or person is at risk. Your lawyer will be able to advise you if an exception applies.
Each case is different. It can be difficult to predict how much a case will cost. Most lawyers calculate their costs on an hourly rate which includes all work performed on a file. Your legal costs will depend on how long things take to be resolved and how much time your lawyer spends assisting you. It can be influenced by a number of factors, such as the complexity of your matter,the other party’s willingness to engage in the process, and whether your matter is resolved by negotiations, mediation or Court proceedings. If your matter is resolved quickly, your costs could be relatively low.
Everyone at Leach Legal is costs-conscious and will attempt to minimise your costs where possible. It is important to ensure that your hard-earned money is applied as effectively as possible, rather than spending it on tasks that give little benefit in return. This is something you should discuss with your lawyer in your initial meeting, and continue to discuss as your matter proceeds so you understand what can be expected going forward.
Sometimes. The Family Court does not automatically make Orders for the other party to pay costs. As a general rule, each party pays their own legal costs but in some circumstances the Court will require one party to contribute to the other party’s costs. An application must be made to the Court for costs. You should discuss with your lawyer the appropriate time to apply for costs. It is a complex issue and there are no guarantees that costs will be ordered.
When a lawyer takes on a family law matter, the common goal is for the matter to be resolved as soon as possible. This can be achieved through correspondence between lawyers, telephone conversations between lawyers and meetings such as informal conferences or mediation.
Often an issue that might take multiple letters or emails backwards and forwards can be quite easily dealt with in one telephone call. This means a faster resolution for the clients, and less money spent on legal fees.
When one lawyer telephones another, it is not usually in a client’s interest for the call to be refused. It would be frustrating if your lawyer telephoned the other lawyer only to have the call rejected. This is not in anyone’s interest and can only lead to matters being prolonged unnecessarily.
Yes, it is legal to get remarried after a divorce in Australia. However, bigamy is illegal so you will only be able to remarry once your divorce becomes final.
If you and/or your spouse are Australian citizens, you are both entitled to apply for divorce in Australia even if you are not living here.
If you are not an Australian citizen and are living overseas, you can apply for divorce in Australia as long as your spouse is domiciled in Australia or has been an ordinary resident in Australia for 12 months before filing for divorce.
Every family is different and the outcome will depend on the individual facts of each case. Many people believe that the division between parties should be or is an equal 50/50. This is not the case. A number of factors must be taken into consideration, including what assets and liabilities each person had at the beginning of the relationship, the parties’ financial, non-financial and homemaker and parenting contributions, and the future needs of each party. Each of these factors is considered individually and will affect the overall outcome.
No. However, it is certainly preferable that you do so.
Family Court Orders can be obtained without the parties having to attend Court in person. Parties can reach an agreement by negotiation and file an Application for Consent Orders. The Court has a duty to review and assess each application on its own merit and ensure that the Orders being sought are just and equitable to both parties. If the Court is satisfied that the Orders are fair and equitable, the Orders will issue in due course, after which time you can implement them.
There are a number benefits to having Family Court Orders:
- It sets out clearly for each party what is to happen with the assets and liabilities accumulated during the course of a relationship and since separation.
- It ensures that should one party fail to comply with the Orders, that those Orders can be enforced by making an application to the Court.
- It provides certainty, so that there is limited chance of the other party seeking a further property settlement in the future.
- If a property is being transferred from one party to the other or from joint names to one party’s sole name, it ensures that only nominal stamp duty is paid on that transfer and can result in considerable savings for the parties.
Another option is to enter into a binding Financial Agreement. This is a private written agreement between the parties, and it not filed in the Court. Each party must obtain independent legal advice prior to signing. A Financial Agreement has the same benefits as Court Orders, though is often more expensive.
A property settlement is calculated based on the current value of the assets and liabilities, at the time the agreement is reached or the Orders are made. This means that any assets you accumulate after separation could form part of the property pool available for division. For this reason, it is often beneficial to attempt to resolve property matters promptly.
Separation is when one or both parties decide the relationship is over, they communicate that decision to each other, and then act on that decision.
You do not need to register your separation, but you should make a note of the date for future reference. De facto couples have 2 years from the date of separation to commence property settlement proceedings (though they can settle at any time before that). Married couples can apply for divorce as they have been separated for 12 months, and then have 12 months from the date of their divorce order to commence property settlement proceedings.
You should also seek advice from a specialist family lawyer to ensure that you understand your rights and entitlements, especially before moving out of the family home.
At Leach Legal, you and your children are our number one priority. It matters to us that you feel supported throughout the process. Our lawyers are industry leaders in the family law field, and regularly attend training seminars both outside the office and in-house to ensure our knowledge and skills are up to date. We are one of the largest family law firms in Western Australia, so our clients benefit from the collective experience of our entire team.
Former de facto couples including same-sex de facto couples have the same legal rights under the family law as married couples. The only exception is in Western Australia, that they currently cannot split their superannuation interests. This is different in other states of Australia, but in October 2018 an agreement was reached between the WA government and the Federal government to implement legislation to allow this to occur. At this time, it is unknown when those changes will take effect.
Yes, however you may need to provide additional evidence to show the Court that you are living separately and apart.
Separation occurs when one or both parties to the relationship form an intention to separate, act on that intention, and communicate that intention to each other.
If you are living separately under the same roof, the Court will decide whether or not there has been an overall change in your relationship by considering things such as:
- Change in sleeping arrangements
- Reduction in shared activities such as family outings
- Reduction or decline in undertaking household duties like cooking or washing for each other
- Division of finances and separate bank accounts
- Notification of friends and family members about the separation
When you separate, you should make a note of the date in your calendar for future reference, as strict time limits apply to commence financial proceedings in the Court.
You can still apply for divorce, but you will need to attempt relationship counselling with your spouse and provide a counselling certificate to the Court. If your spouse refuses to attend counselling with you, you can still apply for divorce but your counsellor must provide a certificate stating that you did attend counselling but your spouse refused. There may be some other limited circumstances where counselling is not required, and you will need to explain to the Court your reasons for not doing so.
Yes, however there are many loopholes that can cause a DIY will to be invalid. The law has very specific requirements about what constitutes a valid will, and failure to comply may render your will worthless. For example, if you are separated, you need to ensure that your will is specifically drafted in contemplation of divorce otherwise you risk a claim from your ex to your estate. People work very hard for many years to get ahead, and it is important that when you die, your intentions for your assets are fulfilled, and not at risk of a claim from someone else.
Yes. Our lawyers regularly attend mediations with great success. We have excellent mediation facilities at our office including a large boardroom and private breakout rooms so that our clients can attend mediations in comfortable and familiar territory. Further, some of our lawyers are also trained mediators themselves, meaning that they are qualified to chair mediations between couples who may be represented by other lawyers.
A mediation involves the parties and their lawyers meeting and attempting to reach an agreement. Usually, very senior lawyer such as a former Family Court judge or a senior barrister is engaged by the parties as the chairperson to help guide the negotiations.
Each mediation is different, and tailored to the needs of the parties themselves. However, there is a general structure that most mediations do follow.
Often, each party and their lawyer meets separately with the chairperson before the mediation so the chairperson can explain the process and get a feel for the issues at hand.
On the morning of the mediation, the parties and their lawyers meet together, usually in a boardroom. The mediator opens the mediation and sets the guidelines for the day. The parties might choose to make an “opening statement”, though this is not mandatory. The mediator will generally create an agenda of important matters to be discussed.
With the formalities attended to, the parties can start negotiating. Sometimes they all stay in the same room together, but often they move into their “breakaway rooms” to have private conversations with their respective lawyers. Depending on how the negotiations progress, the parties may convene in the main room again, or the lawyers may meet with the mediator separately. Sometimes, the chairperson goes back and forwards between the parties’ breakaway rooms. A mediation is a fluid process, and is tailored to ensure the best chances of a settlement in the individual circumstances.
If an agreement is reached, the lawyers will jointly prepare a Minute of Consent Orders or other documents to formalise the agreement. If no agreement is reached, the chairperson will assist the parties and their lawyers to narrow the issues in dispute, and to document those matters which can be agreed.
Maintenance is the financial support from one party to another party. Usually it is paid on an interim basis until the financial matters can be finalised, but sometimes it can extend beyond that.
In deciding whether one party should pay maintenance to the other, the Court must be satisfied that:
- The reasonable living expenses of the party seeking maintenance (“the payee”) is higher than that party’s income earning capacity. This is often referred to as the payee’s “need”; and
- The other party’s (“the payer”) income earning capacity exceeds their reasonable living expenses. This is often referred to as the payer’s “capacity to pay”.
If the Court is satisfied that the payer has capacity to pay, the Court may then order the payer to provide the payee with spousal maintenance. The quantum of this spousal maintenance is usually the lesser of the payee’s needs and the payer’s capacity to pay.
In determining the two steps above, the Court will consider many factors including the following:
- Each party’s income earning capacity;
- Whether either party has the control or care of the child of the marriage;
- The standard of living and all that circumstances that is reasonable;
- The size of the asset pool;
- Whether either party is cohabiting with another person and the financial circumstances relating to that cohabitation;
The terms of any order made or likely to be made in the final property settlement.
An application for divorce is the formal end to a marriage. It is separate to a property settlement or parenting matters.
You can usually expect to receive a divorce hearing within 2 to 3 months of filing your application. Provided there are no unexpected complications such as with serving the other party, your divorce order will be granted at that hearing. Your divorce order will take effect 1 month from the date of the hearing.
The Court does not consider arrangements for pets the same way as children, even though they are often a much loved member of the family. Pets are classified as property under the family law and will be distributed accordingly.
For more information, read our blog post on who gets custody of your pets in a separation.
At Leach Legal, we aim to ensure you speak to a lawyer on the same day that you call. Sometimes if you choose a specific person they might not be immediately available, but we will arrange for you to speak with them as soon as possible.
Every case is different and there many variables to take into consideration. In the best case scenario, parties reach an agreement through negotiation and in that instance, an Application for Consent Orders can be filed in the Family Court without the parties having to attend Court. You should allow time for the Application to be prepared, then considered and signed by both parties, and then for the Court to process it. It usually takes several weeks or even a few months for the Court to issue the final Orders. Note: The Court has a duty to ensure that the Orders are “just and equitable” to both parties.
If you cannot reach an agreement then you may need to commence proceedings in the Family Court. From the date of filing your application, it can take up to 2 years or sometimes longer to reach a final hearing/trial. That said, the vast majority of matters do not go to trial, and parties can reach an agreement at any time which will bring proceedings to a halt. Orders can be made by consent at that time.
No. Court should be treated as a last resort when all other avenues have been exhausted. Only around 5% of matters that proceed to Court proceed all the way to trial. Most matters are settled beforehand. It is always preferable to resolve matters amicably through negotiation.
Mediation may also be a suitable option for you. Our lawyers can also assist you in this process.
It is a common issue that one party does not want to be part of the process. Although resolving matters by negotiation is by far the best option for all concerned, it is not always simple to achieve. If one party will not engage in the process, there really is no alternative but to issue proceedings in the Family Court. Often, the other party will quickly start engaging once they have been served with your documents.
You or your former partner may be liable to pay maintenance to the other party where:
(a) the other party cannot support themselves for an adequate reason; and
(b) the liable party has the capacity to pay maintenance.
Generally speaking, the Court usually follows the four steps:
1. identifying the assets to be distributed between you and the other party;
2. assessing financial, non-financial and home-maker contributions;
3. assessing your and the other party’s future needs; and
4. whether the overall effect will provide a just and equitable outcome.
Yes. The Family Law Amendment (Western Australia De Facto Superannuation Splitting and Bankruptcy) Act 2020 commenced on 28 September 2022.
It is up to you. You can either make a Divorce Application on your own (being a sole Application) or an application with your spouse (being a joint application).
The benefits of making a joint application means you can usually the share the cost of the filing fee, and the service requirements are dispensed with.
If you make a sole divorce application, there are strict service requirements you need to comply with. If you choose to file a sole application for whatever reason, we recommend you make an appointment with one of our lawyers who can provide you with advice about what documents need to be filed and served so that the Court is satisfied of the service requirements.
Further, if your spouse does not accept service, one of our lawyers can provide you with advice about what application to make to the Court in these circumstances. This way, you can have peace of mind knowing that there is a strong likelihood of the divorce order being made.
Once the Divorce Order is made final, you have 12 months to file property proceedings in the Family Court of Western Australia (unless you have done so already).
If you make an application to seek leave to file out of time, you will need to prove that, if leave is not granted, hardship will be caused to a party or child of the proceedings.
If a Divorce Order has been granted and you have not yet filed property proceedings, you may consider booking an appointment with one of our lawyers to discuss your options prior to the time limitation expiring. Further, if the time limitation has expired and you wish to file property proceedings, you may wish to consider making an appointment with one of our lawyers so they can provide you with advice about your prospects of obtaining leave to file out of time.
You will need to file an Affidavit of Translation of Marriage Certificate together with your Divorce Application.
Your Marriage Certificate will need to be translated by a certified translator. The certified translator will need to swear the affidavit.
Even in amicable separations, a divorce lawyer ensures your agreements are legally sound and protect your interests. They can also help finalise matters efficiently, reducing stress and uncertainty.
In Australia, couples must be separated for at least 12 months before filing for divorce. Once filed, the court process usually takes several months. Other arrangements, such as property settlements, can be addressed during the separation period.
If disputes arise, your lawyer will explore options such as mediation or negotiation. If necessary, they will represent your interests in court to achieve the best possible outcome.
A family lawyer ensures your property settlement is fair and legally binding. They consider factors such as contributions, future needs, and any agreements between parties.
If disputes cannot be resolved through mediation, a lawyer can represent you in court to secure arrangements that prioritise the children’s best interests.
Yes, all discussions and proceedings handled by Leach Legal are strictly confidential. We prioritise your privacy and peace of mind at every step.
