Family Law

Divorce, Separation, Custody & Property Disputes are unquestionably a difficult period of life.

The breakup of a marriage can be more distressing than the death of a spouse or partner. While the death of a partner can generally be accepted without recrimination, the breakdown of a marriage or relationship often brings with it multiple layers of hurt, recrimination and anger.

Going through divorce, separation, custody and/or property disputes is a BLACK period in anyone’s life – but only a bump in the road in life’s journey, not the end of the journey.

Your Family Lawyer will aim to solve matters quickly, clinically and unemotionally.

Remember: there is no future or value in anger and hurt. Only time heals the wounds.

When is comes to kick-starting separation and divorce, it is best to gather as much knowledge as you can. This website is a great start, and contains a great deal of free legal advice and information to help you. Talking to a lawyer, such as a Murphy Lyons specialist, is the next step.

It is not necessary to be divorced to commence property and financial proceedings, or to seek custody or access orders in relation to children.

You will have many questions, including:

• How do I start?
• Where do I start?
• What do I say?
• What do I do?
• What’s next?
• Will I mess it up if I do this?
• What can I expect?

Common sense generally dictates the solution to a matter, but if you do not know how to start the process then you will not be able to finish it, then the matter is locked in limbo with neither party able to move forward.

The process initially hopes that parties will become reconciled. However, this happens very rarely. Parties have generally made up their minds by the time they seek legal advice, and their differences are usually beyond redemption and repair.

Generally an experienced lawyer is quickly able to get a handle on the problem. Within a very short time they should be able to suggest the best way forward to resolve the matter and to predict with some degree of accuracy the likely outcome.

Even in situations where you feel you can reach a resolution between the parties involved, it is good to seek the advice of a lawyer. Your lawyer will ensure that i) the agreement is as you understand it and ii) it is enforceable – in case the other party does not do as they say, or ‘changes his/her mind’.

Most lawyers have a pretty good idea of the likely range of settlement and outcome.

The strength of having a good lawyer is in kick-starting the process from the numerous alternative methods, keeping the parties separate, and acting as a buffer in order to achieve a settlement.

In the end it saves time, money and stress to have a lawyer who knows what he or she is doing. From the lawyer’s point of view it is so much more pleasant to have a knowledgeable and experienced lawyer on the other side.

No. There alternatives to Court Intervention.

The cornerstone of the Family Law ACT is to solve problems. In many cases the parties do not have to go to Court. Financial Agreements, Termination Agreements,

Maintenance and Support Agreements free up the Court system and save the parties time, money, anxiety and distress. Each problem can be solved with a tailor-made agreement.

Judges do not want to have to make judgments and decisions as to how parties and their children should lead their lives. It is far better if the parties make these decisions. Courts are the very last option, when all else fails.

In many cases you will not need to go to court.

Solutions are available through written and certified Financial Agreements, Termination Agreements, Consent Orders, and Maintenance and Support Agreements. Click here [link to Templates for Orders] to see some free examples of these.

The court system encourages parties to resolve their own problems or with or without the assistance of other persons, including mediators. The essential ingredient to this process is a lawyer who knows how to initiate and facilitate the process and keep it moving along.

If we have not been successful in agreeing on a resolution after a reasonable period of time, we always recommend that Court Proceeding be commenced – nothing makes a person sit up, focus and take notice as if they receive notice of a listing hearing from the Court. This is particularly so when the other party is used to getting their own way and could be described as bullying and inflexible.

Initiating Court Proceedings still does not mean you will be going to Court – there are still several steps along the way, and resolution can be achieved at any of them before you find yourself in a Court room.

There are many ways to kick-start the matter. While there are no protocols, rules or procedures that must be followed, it is expected that firstly the parties should talk with each other and try to agree on a solution. Sometimes the solution needs to be put in writing and certified by lawyers or approved by the Court, but often it can be a fairly loose, friendly, adjustable arrangement.

1. Amicable, agreed solution

The settlement process initially involves the parties simply trying talking to each other civilly and rationally to try and reach a solution. If a solution can be found then the terms of that solution are put into a settlement document drafted by the lawyer.

The settlement document can either be a financial agreement, a termination agreement or an application to the court for consent orders. If both parties can agree, the matter is solved quickly and expeditiously and file closed.

2. Collaboration

Failing an agreed solution, then the next step may be a letter from the solicitor to the other spouse or partner suggesting that the marriage or relationship has broken down, and inviting the other party to join in an informal settlement process. Again, this can be to everyone’s emotional and financial advantage.

It involves suggesting that the parties meet with their financial and legal advisers at an informal and without prejudice (not admissible in Court) settlement conference to try and facilitate a settlement.

Again, if a solution can be reached, the legal advisers prepare terms of settlement and the matter can be solved quickly and expeditiously with a minimum of cost and fuss. The parties move on with their life without the stress of potentially drawn out litigation while their lives are essentially put on hold.

3. Court proceedings

(i) Initiating proceedings

Either party may commence proceedings either in the Family Court of Australia or in the Federal Magistrates Court of Australia.

The requirements to court proceedings depend upon the type of proceedings and the history of the relationship. Generally they include an application outlining the orders that a party wishes the court to make, a historical affidavit of the relationship, and a financial statement.

The application, the affidavit and the statement of financial circumstances are filed in the court, which provides a listing date usually about six weeks after filing. This listing date is not a hearing of the matter but merely for the purposes of outlining to the court the matters in dispute, so that the court can then make directions to hopefully enable the parties to reach a solution without any further intervention by the court.

ii) Reconciliation Conference

The parties are ordered to attend a Reconciliation Conference before a Registrar of the Court to try and resolve the matter. The Registrar acts as a Mediator and has no power to make orders or to make either of the parties do anything they do not wish to do. The Registrar’s function is to get the parties talking and communicating with one another so as to articulate and ventilate their problems so that they can be worked through trying to reach a solution.

The Registrar may well say that if a judge was hearing the matter that day, the Judge might well make orders along the lines of … so as to give the parties some guidance as to the likely outcome.

The initial part of the conference involves the registrar, the parties and the lawyers. Later the Lawyers are asked to wait outside the conference room whilst the Registrar continues to mediate and assist the clients solve their problems.

The lawyers wait in the background, ready to assist or advise their clients as required. From time to time the lawyers may be invited back to the mediation by the Registrar to clarify issues or to discuss aspects of the case with their clients.

Sometimes a matter is not resolved at the First Reconciliation Conference and the matter is adjourned to a further conference date with the Registrar. The aim is to help the parties achieve a solution. The lawyers and the Registrar play in an integral part in facilitating the process.

Again if a solution is reached, the Registrar may make the orders agreed between the parties resolving the matter.

Again the matter is solved quickly and expeditiously with a minimum of cost and fuss, and the parties move on with their life without the stress of drawn out litigation hanging over their heads. Court filed closed, matter concluded.

iii) Court Hearing

If the Registrar is unable to resolve the matter in the Reconciliation Conference, then the matter is relisted before the Court for further directions and allocated a hearing date, which will generally be about 12–18 months later.

In the meantime, the lawyers continue to negotiate a settlement and there is a constant flurry of information and proposals passing between the solicitors trying to achieve a settlement on the half of their clients.

The lawyers may suggest:

• further informal settlement conferences
• an appointment with an independent mediator
• mediation before an independent mediator experienced in Family Law matters, usually a retired judge, senior barrister or solicitor

If there is a chance of a settlement, then the lawyers are like a dog with a bone trying to bring about a solution.

In our experience, with the guidance and expertise of their lawyers, 99% of all cases settle, whether it is during the process, or at the doorstep of the Court, or even partway through the Court hearing.

Often the parties are so hateful and resentful towards each other that the lawyers provide an excellent buffer zone. This buffer enables a settlement to be reached which would not otherwise have been achievable because of the acrimony between the parties.

Often the application of Legal Principals plays only a very small part in the drama. Experience, wisdom, guidance and counselling from lawyers, with a sensible realistic, and commercial approach, hopefully wins the day

• Expecting fairness and justice. The notion of fairness and justice is a myth. At best courts and lawyers can only provide an approximation of fairness and justice. It is not possible to weigh up every single aspect of a marriage or a relationship to determine the appropriate orders – the cost of doing so would be prohibitive and produced little benefit at the end of the day in any event.
• Bullying. Tactics of bullying have no place in the Court system. The Courts do not tolerate shenanigans from parties or their lawyers.
• Well-meant advice. Misinformation from well-intentioned family, friends and other people cast unnecessary and distorted shadows over the process.
• Accusations of deliberate delay. The often-heard accusation that lawyers drag things through the courts to make more money is unfounded and frankly insulting. It is no one’s interests to prolong this difficult and traumatic time.

Any lawyer that is suspected of prolonging actions for his/her financial gain would soon be given short shrift by a magistrate that is already stretched to the limit. The Family Courts do not tolerate unnecessary delays from parties or their lawyers. The Court’s time is precious and limited, and there are desperate parties urgently needing the Court’s time.

In any case, lawyers sell their expertise and time. The sooner we finish a matter the sooner we get paid. We are merely navigators and advisers acting on our client’s instructions.

When it comes to agreeing a settlement, several factors are considered to be relevant. Hopefully you will be able to come to an agreement between yourselves, with or without the help of a mediator.

If your case were to go to Court, or indeed for any settlement, your lawyers will consider the following factors:

• how long the parties have been married
• whether there are children of the marriage
• how many children of the marriage there are, their ages and dependency on their parents support
• the health of the children, the husband and the wife
• the age the husband and the wife
• the ability of the husband or wife to undertake gainful employment
• the inability of a husband or wife to obtain gainful employment because of their age, health, education, training, or obligations as a custodial parent of children
• the contributions of the wife as a mother and homemaker
• other non-financial contributions from both parties (helping the spouse to advance in his/her career behind the scenes, etc.)
• loss of opportunity for income, usually of the wife, because of her commitment to the family
• assets owned prior to the marriage
• inheritances, gifts from parents and relations
• likely future circumstances for the husband and the wife

In marriages where there is a large pool of assets (superannuation, investment, properties, and share portfolios) the above factors seem to be more liberally applied by the Courts when making their judgement.

When the asset pool is small, it appears that the fundamental philosophy of the Court is that each party made a solemn promise “for better or for worse” to each other on his or her marriage, and that commitment must continue to apply. Therefore neither party is entitled to withdraw from that obligation for the future.

Accordingly the Court asks itself “what does the future hold for the husband and the wife and how can the court best provide for the future for each of them from this limited pool of assets?”.

This is an agonising question to answer and makes us glad that we are lawyers, not Judges or Magistrates.

The Court would ask:

• What is in the best interests of the child/children?
• Is the child/children in danger or at risk?

At all times the welfare of the children over-rides all other questions, including the wishes of a child to live with one parent in preference to another.

With whom should a child/children live?

This is often a very difficult and inflammatory question, which the Court may be called upon to decide. In an application to the court for a divorce, where there are young children, the court is anxious to ensure that the children have a relationship with both parents, with regular access arrangements.

In addition the Court wants to ensure that the non-custodial party is contributing to the maintenance, education, welfare and health of the child.

It is particularly difficult when there are multiple marriages or relationships (splintered families) and new and multiple partners, and new and multiple children from those relationships – each having rights and a point of view.

The Wisdom of Solomon: The Judgment of Solomon was a story in the Hebrew Bible, in which King Solomon of Israel ruled between two women both claiming to be the mother of the same child. Both women had baby boys, one of whom had died. They both claimed to be the mother of the living child. King Solomon, after some deliberation, asked for a sword to cut the child in half, so that the women could have half each. The lying mother agreed as she would rather no one had the child than that he went to the other woman. The real mother would not let her baby be harmed and said the lying woman could have him. At this, King Solomon knew who the real mother was, and gave her the baby. It is often used as an example of a wise and fair judgement.

There is no one size fits all solution. There are literally thousands of different solutions and arrangements. The essential component to solving the issue of custody and access is the goodwill and flexibility of the parents.

Sometimes the problem become so difficult between warring parents that it is necessary for the Courts to appoint an Independent Legal Representative for the child so they have a voice also.

In reaching a decision, many factors have to be weighed up by the Court, including the rights of the parents. But the paramount considerations are: “what is in the best interests of the child/children?” “Is the child/children in danger or at risk?”

In the interests of the children

A child’s relationship with its parents, particularly in splintered and second family relationships is terribly important, as the children sometimes get it into their head that they were somehow responsible for the parents separation.

Often there is disharmony between mothers and fathers balancing the competing needs of the children and the wishes and ability of the trying to be good parents, involved in as many aspects of their child’s life as possible. And it doesn’t always work out as the Court decrees (read my Blog for an example – What about the children?)

An inflexible attitude by either parent leads to unhappiness and disharmony. Some parents are very mean spirited and inflexible and say: “those are the orders of the Court and that’s all you’re getting” or “I don’t care what your problems are, you must comply with the Court Orders and there won’t be any changes unless the Court makes a Variation Order”.

Sometimes rather than the parent beating the drum and trying to get access, the parent has to wait until the child sees the parent as an important ingredient in his or her life, and actively seeks out and pursues the parent.

Sometimes children make the decision. This is now a fairly frequent occurrence regardless of the children’s age. The children are able to stand up to their parents and assert their independence, and determine which parent they want to live with. Sometimes the older children move out and the younger children remain. With time children simply move from one parent to the other, and it is a seamless, flexible and fluid transmission and brings with it a new harmony between splintered families.

Children really crave the love and attention of both parents in their lives. My advice to parents is to always leave the door open so that with the passage of time, children can maintain and renew their relationship with the parent.

Courts do not appreciate their Orders being ignored or intentionally broken.

Nevertheless, the parties involved should adopt common sense. An inflexible adherence to Court Orders fails to take into consideration the ever-changing landscape when it comes to children.

For example:

• “I’m not interested that you are working that weekend – that’s when the Court ordered me to give you access and that’s when you will have it regardless”.
• “The baby is sick – you can’t have access this weekend”
• “The kids have swimming lessons and that’s not suitable”
• “The kids have a party and they don’t want to go with you”
• “No you can’t have make-up access”
• “You were late collecting the kids – I don’t care that the traffic was heavy and you have been driving for hours”
• “I have called the police – you were late returning the children”

And so on…

These are trivial matters that should be dealt with by the parents on a daily or weekly basis and alternative plans implemented by mutual agreement.

More serious and alarming matters concern the risk of exposing a child to injury while the children are in the control of parent who is consuming excess alcohol or taking drugs. Other matters such as beatings, neglect, incest and sexual impropriety are just simply unacceptable and a parent should not be surprised if a Court takes away that parent’s rights.

Fortunately children are very resilient and as they grow older they commence to set the terms and boundaries of these issues, and it is the parents who have to tow the line. Children are often described as a force greater than nature and sometimes they need to be very strong and guide their parents.

To parents my advice is always leave the door open for your children – they need you and they will come on their terms, not yours. Among the many aspirations parents have for their children included the hope that their children be decent, honourable, wise, and strong and brave; so a parent should not be surprised when these characteristics appear in their makeup.

To obtain a divorce it is necessary to establish a number of matters to the satisfaction of the court.

1. Have you been married at least two years?
2. Have you been living separately and apart for a period of at least 12 months?
3. At the time of separation have the parties formed the view that the marriage had broken down irretrievably and irreconcilably?
4. Are there children, and if so have proper arrangements been made for the non-custodial parent to see the children and to support the children?

A party may wish to have the marriage dissolved so that they can close an unhappy chapter of their life and move on. It is not necessary to be divorced to bring property and financial proceedings, or to seek custody or access orders in relation to children. It is only essential to obtain a divorce if one of the parties wishes to remarry.

Yes it is possible for parties to live separately and apart yet be living under the same roof. The court has power to grant a divorce if it is satisfied that the parties considered that the marriage was a lost cause and as a consequence they have been living separately and apart for a period of at least 12 months but under the same roof.

This means that the parties really have nothing to do with each other during this period, which is generally only temporary, before one of the parties moves on and physically separate. The Court will want to see that the parties socialised separately, did their own washing, cooked for themselves etc. as evidence that they had separated.

Read my blog for an interesting case study – Together but apart

The court has power to deal with overseas marriages, provided at least one of the parties is domiciled in Australia, and is an Australian resident or citizen.

We have acted in Divorces where the parties were born in different countries, married in another country, worked and lived in yet another country, had children in a further country with one of the parties, then migrated to Australia, wishing to divorce. It all went smoothly.

Q: Do I need to obtain a court order to separate from my spouse/partner?

A: No you do not need an order entitling you to separate from your spouse/partner. All you have to do is pack your bags and move out.

Q: Do I need to obtain a court order to separate from my spouse/partner and take the children with me?

A: No a court order is not necessary if your spouse or partner agree. However if the removal of the children from the family home is likely to be contentious, then my advice is to put in an urgent application before the Court so as to avoid unnecessary conflict, allowing the court to decide what is appropriate.

Q: Do I need to obtain a court order to take the children permanently interstate or overseas?

A: No, if the other parent agrees it is not necessary to obtain an order of the Court. If s/he does not agree, then an application will need to be put on before the Court to persuade the Court that it is appropriate for the children to move overseas or interstate. The Court will make appropriate access orders, possibly including an order that the expenses incurred by the non-custodial parent in exercising access be paid by the other party or in certain proportions.

Q: Must I give my partner access to our children?

A: Generally the answer is “yes”, except in circumstances where the child is at risk. Parents are not entitled to treat their child or children as chattels or cattle. The rights of the children and the protection of the children are the absolute priority of the court, and the wishes of a party to have access to their children in secondary.

Q: We were married overseas and separated overseas but now I live in Australia. Do I have to apply for a divorce in the Country where I was married or where we separated?

A: No, the Constitution of Australia has empowered the Family Court of Australia and the Federal Magistrates Court to deal with these applications, provided one of the parties is normally resident in Australia or has an Australian domicile or is now an Australian citizen.

Q: Do I need to be divorced before I can bring property and maintenance proceedings against my former spouse?

A: No. A property application can be commenced at any time. A spousal maintenance application can be filed with the Court as soon as your spouse fails to support you adequately. Maintenance for children is dealt with under the Child Support Act and you should immediately apply and register with Centrelink.

Q: How do I change a Court or Consent Order?

Unfortunately Orders become dysfunctional with time, as they are cast in cement and cannot grow and change with the changing circumstances of the children and the family. Ideally, both parents can discuss changes and adapt the Orders to suit the changing requirements. Unfortunately sometimes parties will need to go back to their lawyers and, possibly to Court to file Variation Orders to meet changing needs.