What is family law?
The area of law known as family law is exclusively dealt with by the Federal Circuit and Family Court of Australia, in every State except for Western Australia. The Family Law Act 1975 (Cth) is the legislation governing family law proceedings.
Separation/divorce, parenting orders and property orders are the most common types of family law issues. These legal issues are the specialty of lawyers at Legalbit. The following will provide a brief overview of these three issues.
Some common issues arising with children include:
- How to make important decisions about children – for example the choice of school, medical treatment and religion;
- Who the children will live with and how much time they will spend with the other parent;
- Whether children may travel overseas;
- Whether issues such as family violence, sexual abuse, drug use or mental illness affect the wellbeing of the children;
- Whether the children should relocate to another town, city or country with one parent;
- Special medical procedures (such as ‘gender affirming surgery’) for children requiring permission from the Court;
The Court will always make orders which are in the best interests of the child. It is of vital importance to establish evidence that the order you seek is in the best interests of your child. Legalbit lawyers specialise in compiling evidence, and we have experts on hand to provide advice so you feel confident that you and your child will be attended to professionally and promptly.
Separation and Divorce
Separation and divorce are two distinct definitions signifying the end of a marriage. Separation is a factual issue over whether one party to a marriage has ended it. Divorce signifies the legal end to a marriage. Separated couples are still legally married until a divorce proceeding is finalised. It is important for separated couples to obtain legal advice with respect to obtaining a divorce, as the finalisation of a divorce will lead to finances and property being divided up between the two parties.
Separation is a purely factual issue. Factors such as the following may apply to determine whether one or both parties to a marriage have separated:
- Whether a sexual relationship persists despite claims of separation
- Whether a party to the marriage has moved out
- To what degree finances are shared between the parties and to what extent one party has attempted to remove themselves from the shared financial arrangement
- Whether any shared friends or other social contacts have recognised the separation of the couple.
Separation/divorce proceedings inevitably leads to property division orders.
Property settlement can be finalised in two ways:
- Consent Orders
- Contested Property Division
Orders by Consent
Consent proceedings is the easiest route of the two. It involves calculating all assets and liabilities of each party, along with the contributions the parties have made, and outlining how it is to be split. The Court will then give legal effect by ordering the property be divided in the manner sought. However, it is important to note that this does not give one party carte blanche to oppress the other; the Court will scrutinise the orders sought and may make changes where it is equitable and just to do so. For this reason, it is important to seek legal advice in the drafting of consent orders. At Legalbit, we specialise in drafting orders in a way that will minimise the risk of the Court making modifications.
Contested Property Division
The Court has wide discretion when deciding on a property division settlement. The Court will look at factors such as:
- Property pool: the value and nature of all assets, liabilities and superannuation entitlements that each party has an interest in
- Contributions: the different contributions each party has made throughout the entirety of the cohabitation/marriage period. Contributions include financial and non-financial contributions, and parenting duties (if applicable).
- Future needs: the difficulties each party may face in recovering from the property division
- Justice and equity: whether the property division orders sought (if by consent) or the contested division orders will be just and equitable to both parties in all the circumstances.
The discretion judges have in deciding cases is not easily appealed; therefore, it is important to obtain legal advice early on to ensure that all relevant factors and contributions are accurately calculated to obtain the most equitable result. We understand that these proceedings take an emotional toll on all involved. We provide an empathetic and understanding environment for those seeking our services, and we will guide you through the process with minimal fallout.