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The Basics of a Divorce

By Andrew Banna, a Principal of Matthews Folbigg, in our Family Law Group

Our Family Law Group consists of 7 family law lawyers. We have 4 Accredited Specialists in the area.

We have been recognised as one of the leaders in the Family Law market through Doyles rankings.

We specialise in all aspects of family law such as divorce.

A lot of clients come to our family law lawyers for assistance with a divorce.  Despite the common misconception, a divorce actually does not involve sorting out your parenting or property matters. A divorce simply means dissolving your marriage because you want to remarry or you just would like to formalise what is happening in your life.

You can’t apply to the Court for a divorce until you have been separated for at least 12 months.  There are special rules where you can be separated under the one roof which requires extra documentation. However, unless you have been separated for 12 months you can’t commence the process.
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Not a Parent of the Child? What you need to do to Challenge Your Child Support Assessment

When making an application for child support with the Department of Human Services (DHS), your Child Support Lawyers need to satisfy the Registrar that the person being assessed to pay the costs of the child is a parent of the child. This is often called “proof of parentage”. While parents may be biological parents, the term parent also includes adoptive parents, where the child has been born as a result of artificial conception procedures, or if the child was born as a result of a surrogacy.

The Registrar can presume paternity in the following situations:

  • The child was born during the course of a marriage
  • The person is recorded on the child’s birth certificate
  • The person has signed a statutory declaration
  • The person has adopted the child
  • The person cohabitated with the child’s mother at any time during the period 44 weeks and 20 weeks before the child’s birth
  • Where a Court order has determined parentage
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Child Custody Laws and Independent Children’s Lawyers

An independent children’s lawyer, also known as an ICL, is a Court-appointed lawyer who acts independently to represent the child’s interests in family law proceedings regarding child custody laws. The child, an organization concerned with the welfare of the child or any other person may apply for an ICL to be appointed. The Court may then make an order to appoint an ICL who will attempt to find out what the views of the child are.

The Full Court in Re K [1994] FamCA 21 provided some guidance on what the court might consider when appointing an ICL in matters involving child custody laws, including:

  • Alleged child abuse
  • Unsuitability of either parent
  • Parental conflict
  • Proposal to relocate the child far away
  • Alienation from a parent
  • A parent’s sexual preferences
  • Special medical procedure for the child

Role of the ICL

The role of the ICL is not to take instructions from the child, but rather, to represent the child’s best interests. The ICL should form an independent view of what is in the child’s best interests according to the evidence, act in the child’s best interests and make submissions to the Court regarding the child’s best interests. The child’s best interests must be distinguished, however, from the child’s wishes. An ICL is not obliged to follow the child’s wishes and may disclose information about the child against their wishes if necessary.

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Divorce Lawyer Advice for when you can’t locate your ex-partner to serve divorce papers

Service is the sending or giving of filed court documents to the opposing party. Proof of service of the divorce application is one of the procedural requirements asserted by the court that must be complied with in order for the court to grant the divorce.

What options exist if you cannot serve the divorce application on your former spouse?

Once you have made all reasonable attempts to serve the divorce application, you make seek the assistance of a divorce lawyer who can apply to the court for either substituted service or dispensation of service.

Substituted service allows you to serve the documents on a third party who the Court is satisfied will bring those documents the attention of your former spouse.

Dispensation of service is where the Court is satisfied that you have made all reasonable attempts to locate  your spouse in attempt to serve the divorce application, and as a result the Court says that you do not need to serve the documents.

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Why a divorce lawyer considers arrangements for children when completing your divorce application

The Family Law Act provides that a divorce order will not be ordered unless the court is satisfied that, amongst other things, that proper arrangements in all the circumstances have been made in relation to the welfare of any children of the marriage who have not yet obtained the age of 18 years old.  Where the Court has concerns as to the arrangements for any children involved, it is able to adjourn the divorce proceedings until the Court is satisfied proper arrangements have been put in force. This concern of the Court may be met by obtaining a report from a family consultant appointed by the Court. It may be the case that where there are children under 18 years involved, the parties will have already commenced parenting proceedings with the Court. If so, the Court may find that is sufficient enough to determine that proper arrangements are in the process of being made or could make an “alternate declaration”. An alternate declaration means that although the Court has found the arrangements for the care of the children are not proper, in all the circumstances of the case there are grounds still to proceed with the divorce. However, this will not always necessarily be the case and as such you should seek advice from a divorce lawyer.

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How a Divorce Lawyer can assist when you have been married for less than two years but seek a divorce

A divorce lawyer will be unable to lodge your application for divorce orders if you have been married for less than two years unless you satisfy the counselling requirement. Parties married for less than two years must provide a counselling certificate with their divorce application in order for it to be considered by the Court.

What is a counselling certificate?

A counselling certificate must be signed by an approved counsellor. This certificate sets out that the parties with the counsellor’s help have considered reconciliation without success.

Exceptions to the counselling requirement

The requirement for a counselling certificate can be waived if the Court is satisfied that special circumstances exist that warrant the divorce application to continue regardless.

It is not clear what scenarios will fall into the category of special circumstances affording dispensation. In the case of Nuell and Nuewll (1976), Justice Fogarty held that it was enough that both parties were not interested in attempting counselling. Contrastingly, in other cases such as Philippe and Philippe (1978) and Malyszko and Malyszko (1979), the Judges have held that special circumstances are facts that are peculiar and depart from the norm.

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Divorce Lawyer Explains Resumption of Cohabitation

Once a divorce lawyer has proved that you and your former partner have separated, your divorce lawyer must then prove to the court that there is no likelihood that your cohabitation will resume. Resumption of cohabitation involves the re-establishment of the relationship to the point that it reverses the separation.

What happens to the 12 months separation if you and your ex-partner try to make things work again?

The Family Law Act promotes reconciliation where possible. For this reason, Section 50 of the Family Law Act permit couples to resume cohabitation during their 12 months separation however it must only be for one intervening period of less than 3 months for it not to “re-start” the 12 month separation period.

For example, a couple who  have been separated for 2 months, then attempt to reconcile for a period of less than 3 months. After the 2 months of reconciliation, one or both of the spouses decides that the marriage is still not working out. In this case, the original date of separation will stand and the parties will be able to continue the remaining months left to satisfy the required 12 month separation with it only being extended by the attempted reconciliation period of 2 months.

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Reaching a Property Settlement Agreement through Family Law Arbitration

There are numerous methods aside from traditional Court determinations which parties can utilise when seeking to reach a property settlement agreement. Section 10L of the Family Law Act 1975 defines arbitration as “a process (other than the judicial process) in which parties to a dispute present arguments and evidence to an arbitrator, who makes a determination to resolve the dispute.”

How do Arbitrations operate?

Arbitrations are available for property and financial matters and are voluntary. A matter may also be referred by a court order. They can take place before, during or after proceedings have commenced.

Arbitrations may either determine entire financial or property disputes, or alternatively they can focus on specific aspects of the dispute.

The parties have flexibility in preparing a written arbitration agreement before the arbitration commences to determine the constraints and process of the arbitration.

Are Arbitral determinations final?

Once arbitration has finalised, the arbitrator will make an arbitral award. An arbitral award is final and upon registration, it has the same impact and enforceability as an order of the Court.

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