Family Law

Relationship breakdown is stressful. It can also be confusing, traumatic and financially crippling if you don’t get the right advice. Sound legal advice will ensure you know your rights, entitlements and obligations.

Hall Payne’s family lawyers have been helping clients achieve good outcomes promptly and cost-effectively for decades. We give trustworthy and practical advice after couples or families part ways.

We can help with:

  • Divorce
  • Mediation
  • Parenting matters and child support
  • De facto and same sex relationships
  • Domestic Violence
  • Property settlements
  • Consent orders
  • Financial agreements
  • Spousal Maintenance
  • All other family law matters

Our Expert

Vanessa Brown

Solicitor

Vanessa Brown has built a strong reputation in family law, succession law, and wills and estates across more than 20 years of practice. Vanessa is an expert in helping people regain confidence and control a family or relationship breakdown.

Common Questions

How do I get a divorce?

A divorce is the dissolution of your marriage. It is a separate event from parenting and/or property issues and will often take place at a different time.

You can only divorce if:

  • your relationship has irretrievably broken down; and
  • you’ve been separated for twelve months or longer (that can be under the same roof).

If you make a sole application for divorce, and have children under 18-years-old, you’ll need to appear in court. If you make a joint application, as long as the court is satisfied that there are arrangement in place for the children, you will not have to appear in court.

Where matters are resolved at hearing, the divorce will be finalised one day and one month after hearing.

If your marriage has come to an end the best thing you can do is seek legal advice so that you can determine what the best steps are for you and your family.

After you divorce you have 12 months to file an application for property matters in court. If you are nearing this date, please contact Hall Payne to discuss your options.

Do I really need legal advice?

A lawyer will tell you you need legal advice for almost everything, but this is one area of life where legal advice will help you no matter what your situation. The impact a relationship has on your life is significant and legal advice means that you’re fully informed when it comes to making important decisions as to what that impact may be. On a practical level, legal advice will also help you to navigate the multiple deadlines and obligations you face, and will help free you from these administrative concerns so you can focus on the well being of your family and yourself.

While we recommend legal advice regardless of your situation, there are a number of situations where legal advice is essential, and seeking urgent advice will have an enormous impact on your life moving forward:

1. When there are children involved, or money, legal advice will support you in making any decisions – even if they are made amicably – enforceable.
2. Where you are seeking a court order or are required to appear before the court for other reasons.
3. If your partner is selling, using or removing joint assets or has left you with no money or access to joint funds.

I don’t want to go to court - what are my options?

Avoiding court is often at the top of everyone’s list when after a relationship has broken down. The best way to do this is with a consent order – an agreement that is then registered with the court and become a binding and valid legal document. Alternatively, but less frequently, a Binding Financial Agreement (after separation) may be appropriate.

Consent orders are reached by amicable agreement between you and you partner. They can include parenting and property orders and are a good option if you and your partner agree on arrangements for your children, or the distribution of your assets.

As consent orders are binding legal documents there are consequences if they are breached. This means they offer protection and certainty that you would otherwise get with a court order, without the stress or costs of formalising your agreement through court proceedings.

Hall Payne can prepare a consent order for you.

Do we really need to register our agreement with the court?

You may have reached agreement with your partner and are wondering if it’s really necessary to register it with the court. Strictly it’s not, but it’s definitely in your best interest to consider registering the agreement. While things might be fine between you and your partner, they might not remain that way forever.

Oral agreements, or ones not written up formally, are often not enforceable. This means if someone changes their mind there is little recourse. While you might agree now that neither of you will make a claim on the other person’s assets, people change their minds. Without a properly documented agreement a court may not recognise that agreement, meaning you have to start all over again to reach a new agreement.

It’s not just the court who mightn’t recognise the agreement. Third parties, like lenders or superannuation trustees, will require binding Consent Orders or Agreements when refinancing debts or splitting funds. The costs of getting an order are often off-set by savings in stamp duty that would otherwise be payable on transfers, so not only can it save you personal and logistics headaches, it can end up saving you money, too.

What about the kids?

The starting point with kids will always be to ask what is in their best interests.

From there, the courts will consider a number of factors to determine how best to meet the needs of each child. Within this, both parents have:

• equal shared responsibility for their children’s care, welfare and development;
• rights to make decisions about their children, regardless of where they live;
• and an obligation to consult each other about religion, education, health, and other similarly important areas.

Equal shared responsibility does not mean that there is a requirement for children to live in an equal time arrangement with each parent. The children might live primarily with one parent and see the other parent on weekends, holidays, special occasions, or under some other arrangement.

This can be a complex and highly emotive area of the law, and can have a huge impact on your life and the lives of everyone in your family. It’s important you get the right advice so the right decisions are made for both your children and you. Hall Payne’s experts have decades of experience in the area and can help you, and your family, reach the best outcome for everyone.

We can’t agree on the children – how do we resolve it?

If you can’t agree on a parenting arrangement, you will need to attend family dispute resolution (FDR). A genuine attempt at FDR is a compulsory step before your matter can go to court. (Situations involving family violence, child abuse or extreme urgency are exempt.)

FDR involves qualified expert mediators helping you determine what’s best for the children. It’s a good way to reach agreement in a calm and stress-free environment.

If FDR is unsuccessful, you will be advised on how to progress the matter to court.

If you do reach an agreement at FDR a parenting plan will document that agreement. While it is a useful document, a parenting plan is not legally binding. Hall Payne can help you to formalise a parenting plan after FDR into a binding Consent Order.

What is a parenting plan?

A parenting plan is a voluntary agreement that sets out parenting arrangements for children. It can cover day to day responsibilities, the practical considerations of a child’s life and how parents will consult on important issues. It is not binding, nor is it enforceable.

If you have a parenting plan, you should consider converting it into a ‘parenting order by consent’ (see consent orders) to formalise your agreement. As with other consent orders, Hall Payne can help to make your plan binding.

What should I know about child support?

Child support can be a complicated area, with the laws constantly changing and their application being specific to each family’s situation..

You can find the basics on the Child Support Agency website (www.csa.gov.au), and while this site is incredibly useful, the information can be overwhelming and you may find it difficult to determine what is appropriate given your circumstances.

If you need help navigating child support arrangements or wish to review or dispute an arrangement that is currently in place, Hall Payne can help. Our team of family law experts can assist you in reaching, challenging or enforcing a child support agreement.

Can I apply for spousal maintenance?

If you have separated from your partner and can’t support yourself reasonably and adequately you can apply for spousal maintenance. What this means is that your former partner provides support – either as a lump sum or as ongoing payments – to help with your costs of living.

It can be difficult to demonstrate a need for spousal maintenance as well as the level that you should receive, both of which must be demonstrated to a court. For example, variables may include the past or current care of children or one’s ability to work, among other reasons. The financial circumstances of the person requested to pay will be considered too. Whether you are seeking or responding to a claim for spousal maintenance we recommend you obtain legal advice so you’re able to make your case by giving all components complete consideration.

What rights do I have as a de facto?

De facto property rights are now dealt with in the same court and under the same law as married couples. You can make an application if you have lived with your partner for two years, had a child together, or either partner has made a significant contribution that would result in an injustice if it were not recognised. This includes same sex couples.

If a de facto couple separates, a property settlement application must be filed within two years.

Do we need a pre-nuptial agreement?

Colloquially known as a pre-nup, this is a binding financial agreement that describes how all or some of a couple’s property or financial resources will be dealt with if they separate.
A pre-nup can be done before or during a partnership. They can also be completed by de facto, including same sex couples.

If drafted correctly, pre-nups can be very valuable documents in a relationship break down. They can save you extensive negotiation or costly court appearances, and help you avoid difficult conversations or disputes.

What is a binding financial agreement?

A legally Binding Financial Agreement is an agreement between couples who want to make a formal agreement about their finances and property.  It can be made at any stage in a relationship i.e. at the outset, during, or after separation in which latter case it is an alternative method of formalising and making a binding post-separation property settlement.  Again it absolves the burden of stamp duty on transfer of property interests and allows a superannuation fund to be split.

A binding financial agreement details how the property, maintenance or financial resources of each partner are to be dealt with if the relationship breaks down. Your agreement will guide these decisions rather than needing to negotiate who gets what when emotions are high at the end of a relationship, or leaving that decision to a Judge.

I’ve been in a same sex relationship – does this impact my rights as a de facto?

Not at all. As a partner in a same sex relationship you have the same rights as all de facto partners.

I’m worried about my safety at home – what can I do?

Domestic violence isn’t limited to physical assault or injury and may include damage to property, intimidation, harassment, stalking or indecent behaviour. It includes deliberate action as well as the threat of these things. If you feel unsafe around your partner, you should seek help and consult police immediately.

If police are called to an incident at home or work they may file a “domestic violence protection order” application.

If the police aren’t involved, you can fill out an application for protection at a lawyer’s office or at the local Magistrate’s Court. You may be granted a temporary protection order until the matter is heard.

Hall Payne can help you with this as well as provide legal representation for you

1800 659 114

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