Do’s and Don’ts in Family Law
Going through a separation may not be easy. But it can be made easier if you arm yourself with the do’s and don’ts in family law.
Many family law solicitors will often recommend an extensive yet indispensable list you should follow.
Think of it as your first-steps practical guide to avoiding simple pitfalls anyone could make. And protecting you, your children and your assets in a clear practical way.
Knowing what to expect and understanding what’s really likely to be decided can be more than half the battle during family mediation. And help achieve a desired positive outcome in the divorce court.
In this article … we’ll go through the important do’s and don’ts to get you started with real confidence in navigating your way through the separation process.
Speak directly now to Dianne Grace.
Our experienced, compassionate family law and divorce lawyer will listen and advise on your specific circumstances and personal needs.
DO this first …
Stay calm
The number of Australians deciding to separate or divorce is not uncommon, especially over the last decade or more.
Separation and Divorce in Doncaster, Victoria
Census 2011 figures (latest available) show:
Doncaster % Victoria % Australia %
Separated 798 1.9 125,441 2.9 529,280 3.0
Divorced 2,527 6.1 339,497 7.8 1,460,899 8.4
(Source: Australian Bureau of Statistics)
Latest figures from the Australian Institute of Family Studies indicate there were 2.2 divorces per 1,000 Australians in 2021, up from 1.9 in 2020.
Nevertheless, going through a separation or divorce, especially when you have a child or children, can be a time of heightened emotions for all concerned.
Staying calm may not always be easy during family mediation sessions when claims and accusations may start to fly.
But it’s essential to always:
- Think first about what you say, or
- Action you take, including any communications, such as texts, emails or other online messages.
It’s always possible that an impulsive reaction could be used as negative evidence during the separation process or in a divorce court.
Now you must DO this …
Practical action
Change the door locks (front and rear) – if you are to remain living where you and your ex-partner previously resided together. It’s considered standard practice and will safeguard against your ex-partner freely entering and removing items.
Change your online access – by creating new passwords and PIN numbers for logging into all personal and private facilities, which you may have previously shared with your ex-partner. These would typically be for:
- All your devices (desktop PC, laptop, tablet and smartphone).
- All your personal emails.
- Banking and banking apps.
*MOST IMPORTANT*
Until your ex-partner’s access and use of a joint account card is stopped, keep a constant check on all transactions.
Contact your bank to ensure that all joint account transactions require both you and your ex-partners authority to withdraw for regular payments, such as savings and the mortgage.
Change/replace all previous “joint” account credit / debit cards
Open a new personal account in your own name with your own cards.
- Utilities ( electricity, gas, water, etc).
- Social platforms/ messaging apps.
At the same time …
Seek in-depth, professional advice of an experienced family law and divorce lawyer. Ideally a local practice you feel understands your circumstances, and you can trust to fight your corner every step of the way.
It’s crucial they also listen to you, as well as advise, and clearly explain what you need to do, right from the first consultation.
Next actions TO DO
Take photographs of all items of monetary value – which your ex-partner might easily remove, such as jewellery, watches or technical equipment. You may want to include other items of personal value such as gifts, music collections,
Collect together and securely store important documents, including:
- Personal – Passports, marriage certificates, birth certificates.
- Financial – Credit card and bank statements (min. last 3 years), income tax returns and assessments, insurance policies, trust deeds, wills and powers of attorney
- Vehicle – including registration, ownership, current insurance, roadworthy certificates, etc
Create and keep records of:
- Gifts, loans or other financial help from family or friends.
- Statements showing money leaving their account and entering your account.
- Proof of how money was used.
Talks and agreements with your ex-partner
DO try and agree:
Living arrangements – for both you, your ex-partner and your children – who should in their best interests, remain in the family home with the primary carer.
Mortgage payments – amount each party pays.
*IMPORTANT*
Write down every detail and safely keep everything you have agreed as your recorded notes can be referenced as evidence in the divorce court.
Separating? But worried about what your ex-partner might do?
Get practical legal advice now with our specialist family mediation and divorce lawyer services.
The big Don’ts
Do not – settle any financial matters without providing a clear and complete picture of all assets, most importantly, income and property. Hidden assets will eventually come to light, and a fair settlement can only be agreed when all assets are known.
Do not – attempt to sell, transfer or dispose of assets – business as well as personal – without your ex-partner giving their formal agreement.
Do not – attempt to use any current joint assets as security for loans without your ex-partner’s agreement.
Do not – agree to divide property without obtaining formal documentation and a Binding Financial Agreement (BFA). Verbal agreement alone is insufficient to protect against any future financial claim by an ex-partner.
Do not – sign any settlement documents without legal advice.
Do not – take legal advice from family or friends, ask them to negotiate on your behalf, or involve your children in separation talks and negotiations.
What you must do is to engage the services of a lawyer to help advise / negotiate on your behalf. Their professional knowledge and experience will safeguard you from demanding unrealistic expectations or making promises you cannot keep.
What To DO when seeking advice from top divorce lawyers
Whether you seek legal advice from a local top divorce lawyer in Doncaster, Melbourne or elsewhere, here’s what you should always do:
Do – provide honest and complete answers to all questions they ask. Withholding any information is unlikely to be in your best interests.
Do – ask any questions, no matter how small or trivial you may think they are. It may be important!
Do – listen carefully to all the advice your lawyer provides each step of the way. It will be what they know you need to hear to help you move forward.
Do – allocate a realistic amount of time and money that you really are prepared to spend on discussions, mediation and negotiating your separation.
Do – try to negotiate fairly and reasonably, and try to reach an agreement as promptly as you can.
Summary
- Staying calm and focused throughout the process of separation is essential.
- First, take practical action such as changing door locks and your online logins / passwords.
- Change all your banking / financial arrangements, such as cancelling joint credit/debit cards and opening a new account in only your name.
- Ensure all utility bills, mortgage /rental payments continue to be made.
- Photograph, record and itemise all your personal and household effects, including valuables, such as jewellery.
- Do not sell, dispose or agree to any financial, property or other material assets without seeking qualified family law advice.
- It’s all-important to engage an experienced family divorce lawyer to help advise / negotiate you on your behalf.
FAQs
Q: What’s the very first action to take when separating in Australia?
A: Agree the date you and your partner will separate. Writing down the date of separation is important because of likely time limits imposed on making a property settlement claim or a divorce application.
Q: Who stays in the family home when separating in Australia?
A: There’s no legal requirement on either partner to move out after separation.
Regardless of being married, living together or “in a relationship”, both partners have a right to “stay under the same roof” until all property matters have been finalised.
Q: Is a husband legally required to support his wife during separation in Australia?
A: Under the Family Law Act 1975, the husband is responsible for providing financial support to their spouse or partner if they are unable to do so from their personal income or assets.
Decisions over child custody, future care and wellbeing need to be handled sensitively every step of the way.
Who is more likely to get custody of a child in Australia?
Who gets custody of a child in Australia and what rights does the father have?
These are two of the most sensitive issues a family law solicitor can be asked when counselling before divorce takes place.
Australian child custody laws are often complex and difficult to navigate. Under the Federal Circuit and Family Court of Australia, priority in family law cases is always to protect the best interests of the child.
However, provision made by a court’s ruling (or orders) can sometimes follow prolonged and demanding negotiations.
In this article – we’ll give you a simple, easy to understand explanation of:
- How child custody arrangements may be decided
and how you might be advised to consider the main issues of:
- Mother versus father’s parental rights
- Parental Plans versus Parental Orders and individual responsibilities
Speak directly now to Dianne Grace.
Our experienced, compassionate family law and divorce lawyer will listen and advise on your specific child custody needs and concerns.
Australia’s Child Custody Laws – what you need to know
Following a divorce or separation it’s often assumed an Australian court will always give custody of a child to the mother.
However, under the Australian Family Law Act 1975, and its amendment in 2024, the court takes the view that it’s in the best interests of the child to:
- Maintain a meaningful relationship with both mother and father
This is most important if the child is a minor – under 18 years age.
Parental Responsibility – what this means in practice
Parental responsibility basically refers to the obligations, and duty of care both parents have in bringing up their children.
The responsibility is regardless of whether parents are married, simply living together or, otherwise, in a relationship. It also means that both parents are able to make decisions about looking after their child independently of one another.
However, a family court will also hold it has a greater concern to place:
- Protection of the child above shared parental responsibility
The court will remove shared parental responsibility in cases where a child is determined to be in need of protection from potential harm by one or both parents.
It’s IMPORTANT to know:
Most divorcing or separating couples will eventually reach an agreement. Particularly on issues involving:
- Which of the parents will make decisions for the child
- Whether the child will live with the mother or the father, and
- When and for how long the other parent spends time with the child
What happens if an agreement is not reached?
If a separating couple are unable to reach an agreement, a more formal action will need to be taken, which consists of TWO options:
• Parenting plans
• Parenting orders
Parenting plans – a written and non-coercive agreement (signed and dated) between the parents, which sets out responsibilities and arrangements for a child or children. It may also involve other people if the child lives or spends time with grandparents.
Parenting orders – a legally enforceable arrangement that details very specific instructions, including:
- Who the child can live with
- Time spent with each parent
- Decision-making powers for the child, and
- Type of communication with each parent
Only around 1 in 25 (less than 5 per cent) will go to a family court to seek formal custody of their child*.
Around 1 in six (16 per cent) of couples, however, will need to seek assistance from legal counsel / family lawyers*.
*Source: The Australian Institute of Family Studies (AIFS)
The advice, counselling and mediation of an experienced family divorce lawyer is crucial at the outset, and at every stage.
Considering divorce? But worried about child custody and/or spousal maintenance?
Discover more about our specialist family mediation and divorce lawyer services.
The father’s rights to child custody – what the courts consider today
Family Law Amendment (Shared Parental Responsibility Act) 2006
There’s a traditional view in Australia that the father never gains custody of their child, and yet, always expected to pay child support. Plus, visiting rights are often strictly limited under parental orders.
This is no longer necessarily the case.
It’s a view likely to have formed from before the Family Law Amendment (Shared Parental Responsibility Act) was introduced in 2006.
The Act aimed to reverse a perceived bias, which usually did give child custody to the mother. Even if the father was the primary care-giver before separation and divorce.
Since the Act came into force, and as we highlighted earlier in this article, the Australian courts are today more focused upon:
- Establishing the equal sharing of parental responsibility in deciding future care and needs of the child after separation.
Changes to the traditional family unit
This is also because of the changes to the traditional family unit. People are now having children later, parenting alone or not at all.
Latest available figures from 2021* show:
- Over a quarter (26 per cent) of Australian households are one-parent families.
Of which:
- 80 per cent are single female parent households, and
- Male lone-parent families on fastest growth of 40 – 69 per cent by 2046
*Source: Australian Bureau of Statistics (ABS), June 2024
5 key factors courts consider for awarding child custody
When deciding child custody arrangements a family law court will consider:
- Child’s best interest
- A parent’s capacity to care
- Desire to co-parent
- History of abuse or harm
Child’s best interest
The No.1 concern, which considers a child’s age, individual relationship with mother and father, and each parent’s ability to provide a safe and stable environment.
A parent’s capacity to care
Which looks separately at the mother and father’s individual ability to meet the child’s emotional, physical, and developmental needs.
Key factors include:
- Home environment
- Financial stability
- Work commitments, and
- Family other support network
A court’s decision over which parent to award full custody will also take into account if either the father or the mother is shown to have a problem with:
- Substance abuse
- Mental health or
- History of neglect, abuse or violence
Desire to co-parent
There must be a genuine desire shown to co-parent. This means a real willingness to create a positive relationship between the child and the other parent.
Any attempt to cause the child to have harmful, negative thoughts about the other parent will count against a parent’s case at court.
History of abuse or harm
Evidence of abuse or violence by either parent towards the child can significantly increase the likelihood of the other parent obtaining full custody.
Summary
Today, shared parental responsibility for the care and well-being of a child is the general view held for a couple who seek to separate or divorce in Australia.
Most couples will try to reach their own agreement. A parental plan is drawn up over shared parental responsibility without resorting to the family courts for a parental order to be imposed.
A parental order is a legally enforceable arrangement of strict conditions which must be followed.
Australian family law courts will always place protection of the child above shared parental responsibility if there is a history of abuse or violence.
Awarding full child custody in a family law court will be determined by considering key factors of child’s best interest, a parent’s capacity to care, desire to co-parent and a history of one or both parent’s abuse or harm.
FAQs
Q: What’s the most common child custody arrangement in Australia today?
A: An arrangement known as “joint custody”, which is focused upon both parents making key decisions over their child’s upbringing, including time spent with each parent.
Q: How much access is a father entitled to in Australia?
A: Under The Family Law Act, May 2024, “a child has a right to be known and cared for by both parents.” This means a father has equal parental rights to see his child, unless there are concerns over safety.
Q: Can a mother stop a father from seeing a child?
A: In Australia, a mother cannot, by herself, stop a father from seeing their child. If there are concerns over potential harm – both physical and psychological – the mother must obtain a court order.
Q: At what age in Australia can a child decide which parent they want to live with?
A: No specific age, although a child aged 12 years and above may be given greater consideration. Much will depend on their ability to properly understand what’s actually taking place.
Decisions over child custody, future care and wellbeing need to be handled sensitively every step of the way.
Family Law Amendment Act 2024
On 6th May 2024 the Family Law Amendment Act 2024 (Cth) (FLAA) came into effect. Its objective, to improve the outcomes for Australians that are separating, by making the process simpler, safer and more accessible.
Please refer to our updated page for more information. https://dgfl.com.au/services-2/#custody
Family Law Amendment Bill 2023
In October 2023 two pieces of legislation were passed in Parliament to improve the outcomes for Australians that are separating, by making the process simpler, safer and more accessible.
What the Bill means for children
This proposed amendment to the Family Law Act 1975 via the Family Law Amendment Bill 2023, is largely intended to further facilitate the best interests of children. The desired outcome is that it should be easier to navigate and implement parenting decisions whether they be in or out of the court. The focus is on children’s welfare.
In order to prioritise the safety of children, courts will under the the new information sharing orders have direct and more timely access to information from police, child protection and firearms agencies on matters that could place children at risk.
The presumption from the provisions of the Family Law Act of 1975 of “equal shared parental responsibility” do not necessarily follow, as they improperly exposed the children to risk and compromised safety.
These changes have set out after much consultation and consensus and address a range of concerns and considerations surrounding the family unit and the courts. To find out more, you may contact us and arrange an appointment or should you like to explore this further on your own we have listed some resources below.
List of references
Dreyfuss, Mark. Attorney-General’s Portfolio, Attorney-General’s Department, 19 Oct. 2023,
<consultations.ag.gov.au/families-and-marriage/family-law-amendment-bill/>
“Feedback Updated 8 Nov 2023.” Family Law Amendment Bill 2023, Attorney-General’s Department, 8 Nov. 2023,
<consultations.ag.gov.au/families-and-marriage/family-law-amendment-bill/>
“Updates on Family Law Amendment Bill 2023.” Law Council of Australia, 8 Sept. 2023,
<lawcouncil.au/media/news/updates-on-family-law-amendment-bill-2023>
Father’s rights under Family Law in Australia
Whether you are thinking of a separation, already in the process of divorce or seeking clarification on your situation or simply want to know about maintenance obligations, this guide is designed to dispel the myths about unpaid spousal maintenance and father’s rights under Australian Family Law.
Along with alimony, we will briefly address some of the most critical problems in family law that fathers face. In a system that may often appear to be skewed in favour of mothers. We will discuss the key role of attorneys in assuring the fathers’ right to a fair and just resolution of their cases. As everyone’s circumstances vary and there are so many factors that require evaluation this is simply a guide which should be followed up with the consultation of a professional. In this article we will touch on the support and claim issues, unpaid spousal maintenance and the legal representation of fathers.
My Ex Has Stopped Paying Spousal Maintenance
Divorce is a complicated process, and one area that often needs to be looked at closely is the matter of spousal maintenance. This monetary aid is supposed to assist one spouse in maintaining a minimum level of living after the divorce.
Nevertheless, one may get into a situation where the spouse no longer adheres to the spousal maintenance payments, which inevitably falls upon an individual to shoulder all the expenses. Those that are required to pay the other party often ask, “Why should I pay?” “Is this fair?” “How are these obligations determined? Or “What if I don’t pay?”
Let’s begin by reviewing spousal maintenance alimony, the criteria for eligibility, and what one should do if maintenance payments are not received on time.
What is Spousal Maintenance?
The Family Law Act governs spousal support, a financial mechanism where one ex-spouse supports the other ex-spouse following separation or divorce. It discusses the economic apportionment that could result when one partner becomes financially dependent during a marriage. Spousal maintenance can be in the form of periodic payouts or lump-sum amounts, and this supports a fair outcome that is intended to address the circumstances and contributions of both parties after divorce.
In deciding on the type and amount of maintenance the spouses may be entitled to, the court considers various factors to achieve a fair and just financial arrangement that would contribute to both parties’ economic well-being. These factors include:
- Marriage duration
Longer marriages could need a longer term of domestic support. The court considers that a divorcing couple tends to become more economically dependent over time. Therefore, such a long-term marriage may require a longer-term spousal maintenance order.
- Financial disparities
Potential financial differences between partners are important in setting spousal maintenance payments. The court considers the monetary demand of a spouse requesting maintenance and the ability of the other spouse to meet such needs. Higher maintenance payments are more likely if the ex-spouses have considerable income differences.
- Contributions to the marriage
The court weighs both financial and non-financial contributions to the marriage.
Therefore, non financial contributions, like homemaking, child-rearing, or spousal career support, are also appraised. This acknowledges that contributions go beyond financial aspects and gives the recognition that plays of different roles require value within the marriage.
How Do I Know If I’m Entitled to Spousal Maintenance?
Factoring spousal maintenance is a significant step in post-divorce financial planning and should take into account the entire surrounding situation. Although laws vary by jurisdiction, some principles are considered when making an assessment.
The main issue would be if the other spouse needs financial support. If a partner cannot continue living to the same standard as that of the marriage because of economic differences, then they may be entitled to spousal maintenance.
The court typically scrutinises the standard of living set in the marriage. If divorce severely affects one spouse’s standards of life, it may be necessary for spousal maintenance to be granted to fill the gap and provide reasonable financial support.
The ability of each spouse to support themselves is a crucial factor in the decision to the weighting of spousal maintenance amounts. In case one spouse earned notably less than the other or didn’t manage to support themselves enough, the court may take these factors into consideration when deciding upon spousal maintenance.
Legal Advice and Application Procedure
Coping with the complicated requirements for spousal maintenance can be difficult, and it’s better to get advice from a family law attorney. In Australia, the Family Law Act is the legislation that oversees spousal support. Knowing the subtleties of this law is fundamental to not only whether or not a person qualifies but the amounts and period of maintenance can be impacted by the level of exploration and expertise of legal counsel.
Consulting a spousal maintenance lawyer lets you evaluate your circumstances according to the criteria specified in the Act. It not only allows you to find out whether you are eligible for spousal maintenance but a shrewd practitioner may help you uncover hidden assets.
Lawyers for Dads
Fathers have distinct legal challenges during divorce, child custody, and support proceedings that require specialists. The statistics may seem to suggest that family law disputes favoured mothers, which can be a drawback for fathers. Lawyers for dads are focused on overcoming these difficulties to achieve the best and fairest results often irrespective of gender, role or financial status.
Why Is A Specialised Lawyer For Dads A Necessity?
Navigating family law cases, specifically, those involving custody of children and parental rights, is complicated by traditional male stereotypes that fathers often find themselves to be slotted into and therefore requires deeper investigations into the nuances of the relationships and contributions involved. Specialised legal representation for dads becomes essential for several reasons:
- Pushing for equal shared parenting
Lawyers for fathers occupy a critical position in the struggle for equal shared parenting rights. An important part of the family law is that both parents are involved in the child’s life. - Navigating parental rights challenges
Fathers may be at odds with enforcing their parental rights, especially if there are misconceptions concerning their involvement or ability. Experienced representation will help facilitate fair and just outcomes. - Promoting fair custody arrangements
Fathers advocating for custody may encounter obstacles in attaining an equitable and fair custody arrangement. Lawyers for dads strive to set a custody program that places the child`s best interests above all else and, at the same time, acknowledges the father’s rights.
Finding the Right Legal Support
Family Lawyers Near Me
Finding a family attorney in your area is a necessary first step. Proximity guarantees the convenience of communication and accessibility during case litigation. Additionally, when looking for the best family lawyer, one needs to account for expertise, experience, and client reviews. An attorney with much experience handling family law cases can positively affect your case’s outcome.
Good family lawyers, especially father-rights-oriented ones, distinguish themselves with their legal knowledge, empathy, and caring hearts. They enforce positive co-parenting outcomes whilst safeguarding the father’s rights.
For fathers lacking financial resources, the legal aid office can be an essential support. Legal aid makes it possible for fathers to have access to specialised legal representatives regardless of their financial situation.
What can fathers expect from the Family Law?
The family law landscape, particularly in matters of unpaid spousal maintenance and a father’s legal position, must be examined in terms of individual circumstances. We seek to clarify entitlements and ways of resolving issues by simplifying the basic legal terms so those facing these challenges can confidently approach the process. Turning the lens on how fathers are represented in a court of law, the guide recognizes that there are some particular challenges that fathers have to deal with in the Family Court. It recognises but is not necessarily reminded of the importance of fathers in ensuring custody fairness, combating parental rights problems, and arguing for joint shared parenting. At Dianne Grace Family Law, no matter what the gender or role of the partner or parent may be, we strive to achieve fair and equitable conflict resolution for the parties so that they may move on to new chapters in their lives with equanimity.