We answer commonly asked family law questions
Do you have questions? We have the answers. We’re here to help.
Common questions and answers about family law
Separation & Divorce
How long will it take to get divorced?
To file your application for divorce, you must be separated for at least 12 months.
Once the 12 month mark has passed, you can file your Application for Divorce.
Generally the Court will list your Application within 3 – 6 months.
If the Court application for divorce is successful and the divorce is granted on the date of the divorce hearing, the divorce will take effect one month and one day after the divorce hearing. This is also the date the divorce order will become available.
What if we separate, get back together and then separate again?
This is a good question and the answer really is – it depends!
If the first separation occurred and before reconciling a property settlement was reached and formalised by way of either Court orders or a Binding Financial Agreement, then any property settlement following the second separation will likely only consider the period of reconciliation.
If no property settlement occurred before the second separation, then the total length of the relationship will need to be considered when distributing the asset pool.
This is a complex question, give one our family lawyers a call or book online to discuss this issue in more detail.
What time limits do I need to keep in mind when separating?
For parenting matters – none.
For property matters the time limits depend on whether you were married or in a de facto relationship.
If you were married, you and your former spouse will have 12 months from the date the divorce becomes final and takes effect to either resolve your property matter or commence proceedings in relation to property matters.
If you were in a de facto relationship, you and your former spouse will have 2 years from the date of separation.
There are occasions where the Court will grant leave to bring an application out of time however leave should not be expected or assumed.
Give us a call to discuss your property matter to ensure you finalise your matter before the jurisdictional time limit is up! Or you can book an appointment online.
Am I considered separated if we both still live in the same property?
The Family Law Act recognises that parties can be separated while they remain living under one roof. This looks different in each case, but typically separation is marked by the end of a shared bed, shared meals, shared washing, and the end of attending celebrations together.
The Family Law Act recognises that parties can be separated while they remain living under one roof. This looks different in each case, but typically separation is marked by the end of a shared bed, shared meals, shared washing, and the end of attending celebrations together.
How is the date of separation worked out?
The date of separation is sometimes the date parties cease living together, however it can be the date that one party communicates to the other that the relationship or marriage is at an end.
Can my spouse refuse to get divorced?
In Australia we have a system of no fault Divorce. Provided the Court has jurisdiction, the Court can only refuse the Divorce application if the Court could not be satisfied that the parties have been separated for 12 months.
Parenting
Which court decides parenting matters?
The Court that considers and determines parenting matters is now known as the Federal Circuit and Family Court of Australia (FCFCOA).
There are two divisions within the FCFCOA. Division I largely deals with complex matters or matters of significant abuse while Division II deals with most family law matters (both parenting and property).
I want to see my child. What do I have to do?
There are a number of steps involved.
The Court rules (Federal Circuit and Family Court of Australia Rules 2021) require a person who wants to commence proceedings to take all reasonable steps to resolve the matter before commencing proceedings, unless an exemption applies (such as family violence or child abuse).
For parenting proceedings you will likely need to attend (or attempt to attend mediation). If mediation is unsuccessful or the other person does not agree to attend mediation, you will be given a section 60I certificate. In situations where there is family violence or an ADVO, you do not have to attempt mediation and can potentially commence proceedings straight away.
If you attend mediation or are given a section 60I certificate and intend on commencing proceedings, you must put the other party on notice of your intention to commence. The rules require a number of things to be included in your notice of intention to commence proceedings, including but not limited to an offer of settlement, the orders you intend to seek and the issues you say are in dispute.
Once all the pre-action procedures have been attended to, there are a number of documents that will need to be prepared, including:
- The Initiating Application;
- Affidavit;
- Notice of child abuse violence or risk;
- Parenting Questionnaire;
- Genuine Steps certificate.
There are rules as to how the above documents should be completed.
Give one of our experienced family lawyers a call to discuss any possible parenting proceedings, or book online. .
Is my ex entitled to 50% custody of the children?
Not necessarily.
The Court is required to consider a range of factors when asked to make parenting orders (either by consent or contested litigation).
Give us a call, or book an appointment online, and we can discuss these factors with you.
What is an ICL?
An ICL is an Independent Children’s Lawyer.
An ICL is appointed to act on behalf of children who are the subject of parenting proceedings.
Our Kasey Stewart is on the panel of Independent Children’s Lawyers. This gives us an edge when acting on your behalf in parenting matters.
Contact us to book an appointment with Kasey, or book online.
Can I change my kids’ surnames without my ex’s permission?
For a change of surname, you must have the consent of both parents or a Court Order. Even if you have an Order for Sole Parental responsibility, you will not be authorised to change a child’s name.
What can I do if I think my ex is using drugs?
If there are reasonable grounds to believe a party is using illicit substances then the Court can make Orders requiring a party to undertake urine, blood or Hair follicle tests – the results will form part of the evidence.
General
Why should I pay for advice when some firms offer free initial consultations?
- It is often the case that free initial consultations (offered by other firms) are often capped at half an hour. It is frequently the case that a client spends the first half an hour telling the Lawyer what the problem is and receives no personalised advice during the free consultation period. At the end of the free period, you may be invited to continue your consultation at a cost which you were not expecting, or you may be asked to leave and make an appointment another day, which can be a waste of time.
- Family Law is often complex, and it is critical to the trajectory of your matter that instructions and advice are not rushed, particularly when taking initial instructions.
- Your first consultation is often emotional and involves the introduction of new terminology and concepts. With our getting started package you will promptly receive a comprehensive letter of advice detailing the advice provided in your consultation. This can offer great peace of mind.
- At Mason Lawyers you will receive high quality legal advice from the first consultation, and frankly that is a service worth investing in.
Do family law matters always have to go to court?
No!
Family law matters can resolve at various stages, including:
- Through correspondence between lawyers;
- Mediation;
- Arbitration.
Here at Masons we take pride in being resolution focused. Book an appointment online today.
Which court will I have to go to for my family law matter?
The Court that considers and determines parenting matters is now known as the Federal Circuit and Family Court of Australia (FCFCOA).
There are two divisions within the FCFCOA. Division I largely deals with complex matters or matters of significant abuse while Division II deals with most other family law matters (both parenting and property).
Do I need a lawyer to make consent orders, or can I do it myself?
There are do it yourself forms and guides on the FCFCOA website. It is highly recommended that the proposed Orders be prepared by a Lawyer to ensure that the Orders are in an enforceable form.
Meet our Family Law team
Kasey Stewart
Senior Family Lawyer
Kasey leads the family law team and treats those going through the family law process with the care and respect they deserve.
Nicole Richer
Lawyer
Nicole’s passion for assisting people and her ability to navigate the complexities of family law make her an invaluable asset to our team.
Why Choose our Family Lawyers?
Our family lawyers have dealt with a wide variety of issues in parenting matters, including matters involving:
- Family violence, including coercive and controlling abuse, sexual abuse, and emotional abuse.
- Hair follicle, urinalysis, and blood testing, for drugs of abuse, excessive alcohol consumption, and performance enhancing drugs such as steroids
- Parenting after separation and behaviour change courses
- DNA testing for parentage
- Recovery orders
- Relocation, within Australia and abroad
- Grandparents and non-parent carers
- Children and parents with special needs and/or mental health issues
Talk to one of our friendly family lawyers today.