ANSWERS TO FREQUENTLY ASKED QUESTIONS Part 1

1. What should I do when I separate?

If you believe the relationship can be retrieved you should see a counsellor.

Seek legal advice. We can advise you about all matters which can arise, eg. children/child support/contact/maintenance/property.

If you are not receiving financial support go to the Child Support Agency or Centrelink so that you can apply for a Child Support Assessment in relation to the children with you or if you are not working to apply for a Supporting Parents Pension.

2. Why should I seek legal advice if there is no dispute between us?

Despite what is sometimes thought, your lawyer is not only there to advise when there is a dispute. We may be able to advise the best way to implement any agreement between you and your spouse or remind you of things you may have forgotten about eg. superannuation, gifts, insurance policies, bequests under Wills etc. In every case when there is an agreement concerning either the children or the division of property, you should have the agreement implemented by an Order. This will help overcome possible disputes in the future. Unless the agreement is the subject of Orders the agreement you reach may not be binding and can possibly be reopened again in the future, in other words, you would have no peace of mind in knowing “its finally over”.

3. Where do the children live?

This can be decided by agreement. If you cannot agree we can institute proceedings on your behalf as to residency and/or contact. Except in urgent cases, before the Court makes an order, you are required to attend counselling at the Family Court to discuss matters relevant to the welfare of the children. Matters discussed at counselling are confidential and cannot be disclosed in Court. The only exception is if the Court makes an Order that the parties attend a Family Court Counsellor so that the Counsellor can prepare a Report for the proceedings. The Court can make orders for the children to live with either parent.

4. Do grandparents have a right to see their grandchildren?

Grandparents (or anyone who wants an ongoing relationship with a child) can apply for an Order giving them contact with the children. Children have a right of contact with both parents and other significant people in their lives unless it is contrary to their best interests.

5. What can I do if I believe the other party is going to take the child out of the country?

You should contact us so that we can prepare an urgent Application for orders that the Australian Federal Police list the children on a Watch List at all major airports.

6. Can a child make their own decision about where they want to live?

There is no particular age when the Family Court will listen only to what a child wants to do. The Court must consider the wishes of a child but the importance placed on those wishes will depend on the child’s maturity and level of understanding.

7. I want to end my relationship but my spouse won’t move out of the house. What can I do?

The Family Court can make an exclusive occupancy order of the house for either spouse. That means you can live in the house without your spouse living there until the property has been divided. When the Court considers an application for exclusive occupancy it looks at the needs of both parties and the children.

8. What happens to our property?

Once parties separate proceedings can be commenced for the Court to determine what happens to property. It is not necessary to wait until proceedings for divorce are instituted. The Court is required to take in to account many different matters when deciding what happens to your property, eg length of marriage, initial contributions, whether there are children, comparison of the respective financial positions of the parties etc. Matters such as superannuation and bequests under Wills are also relevant. The Court does not operate on the basis that assets acquired during the period of the marriage are divided equally and all assets are taken into account ie. joint assets and assets solely owned by you or your spouse as well as business and company assets. The Courts have said that one person can make a contribution to any asset including a business asset in the role of homemaker or parent.

9. If we resolve matters and properties are to be transferred one to the other do we have to pay stamp duty?

Not if the transfer is pursuant to an Order.

10. Can I stop my spouse selling assets?

Yes. If there is a danger your spouse will dispose of assets so as to reduce the value of property available to the parties you can seek urgent Orders preventing this.

11. What do I do if the other party is assaulting me or causing problems at home and I need emergency assistance?

Ring the Police and subsequently seek legal advice. The Police can arrest and charge the other party and/or obtain an Apprehended Domestic Violence Order.

12. What happens about financial support for the children?

You may apply to the Child Support Agency for that agency to assess the amount payable. That Agency will be responsible for collecting the child support from the other party.

If you are in receipt of a pension then Centrelink will require you to complete an Application for Child Support for the Child Support Agency to assess the amount payable for the children by the other party.