Australia’s legal system can be a minefield; in the sense that it can be painfully ambiguous and frustratingly regressive. Ask any family law solicitor, and they’ll confirm this fact. However, because Australian law can be so complicated and complex, you must have legal representation when negotiating child custody arrangements, binding financial agreements (BFAs), prenups, or divorce proceedings.
Here are some of the most common questions that the best family law solicitor receives daily from their clients.
Can I bring someone with me to Court dates?
If a family law solicitor does not represent you, then you are permitted to have a support person or friend attend the court conference with you. The extent of their involvement will be at the discretion of the registrar overseeing the session (or judicial officer). If you have a friend with you, they can sit at the back of the courtroom. Children or teenagers (under the age of 18) are not allowed in the courtroom.
If there is evidence of domestic violence, do I have to reveal this to the courts?
The simple answer is “yes”. You have a legal obligation to tell the courts of applicable violence orders and file these with the courts since they will likely affect the court outcome. For example, the courts will be hesitant in providing unsupervised custody to a person with a history of violence against his/her close filial members. As a result, domestic violence orders often have a significant influence on parenting orders.
What are parenting orders?
A parenting order focuses on the allocation of parental responsibility when a divorce is being finalised, as outlined in the Family Law Act 1975. Any family law solicitor will be able to tell you this. Generally, a parenting order will stipulate the following:
- Where the child (children) is/are meant to live
- Who the child (children) is/are meant to spend their time with and when
- Other aspects of their care and welfare
What happens if I contravene a parenting order?
There can be serious ramifications if you break a parenting order from the courts – just ask your family law solicitor for affirmation. You will likely have your entitlements provisionally revoked, pay a fine, or face imprisonment up to 12 months, depending on the severity of the contravention.
How does the Court devise a property settlement?
Contrary to popular belief, the Court system does not use a mathematical algorithm to determine how properties are settled and dispersed between the relevant parties. Unlike other countries, where the starting assumption is divided by 50/50, Australian courts recognise that each relationship is unique.
So, once you have hired a family law solicitor to handle your property settlement, the Court will commence a long-standing process of assessing and determining specific entitlements. They’ll begin evaluating whether it would be just and equitable to adjust each party’s entitlement, before categorising and listing all assets, liabilities and superannuation held by both parties. The Court will also assess current and future circumstances before deciding on the matter.
What does the term “spousal maintenance” refer to?
“Spousal maintenance” is the Australian term for “alimony”, which is commonly used in the United States and other parts of the Northern Hemisphere. It functions in the same way that alimony does – one partner agrees to provide ongoing financial support to their former partner after the breakdown of their marriage or de facto relationship. If you’re still confused, ask your family law solicitor for more information. In evaluating whether spousal maintenance payments are appropriate, the Court will look at several factors:
- Has the threshold been met?
- Does one party have the capacity to make the payments in question?
- The extent of support required
- Matters provided in Section 75 of the Family Law Act (1975)