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by Ruth Whisker

Unlike what you see on television or read about in gossip magazines about celebrities separating in the United States of America, in Australia divorce, property settlement and arrangements for children involve completely different court applications. An application for divorce in Australia won’t resolve any questions about who gets to keep the matrimonial home or who the children will live with.

Applying for a divorce after 12 months of separation
An application for divorce is an application to formally end the marriage. You must be divorced before you can get remarried and some registries require you to provide a Divorce Certificate if you want to change your name back to a previous name.

You cannot apply to the Federal Circuit Court for a divorce until you have been separated from your husband or wife for a period of 12 months. If you have separated but have been living together separately in the same house for 12 months, you can still apply for a divorce, but you will need separate and independent evidence that you have been “separated under one roof”.

However, if you have not been married for more than two years before the date of the Application for Divorce, you need to attend mediation with your husband/wife before you can apply for a divorce.

If there are no children or if it is a joint application, you don’t even need to attend court. However, if there are children under 18 years and it is not a joint application, you will need to attend court for your divorce hearing.

Negotiated property settlement can be finalised by Consent Orders
An application for property orders can be made as soon as separation occurs.

Ideally you should try to negotiate with your estranged spouse or partner to come to an agreement on what is going to happen with any property belonging to both of you separately and jointly and formalise the agreement by Consent Orders.

With Consent Orders, your agreement will have the force and finality of orders of the Family Court, but you will not have to attend court and the costs and time before finalisation (usually between six to eight weeks after filing the application) will be substantially less than in contested court proceedings.

What happens if you can’t negotiate a property settlement?
However, if you can’t negotiate a resolution or if there are circumstances of urgency, for example, if the other party is planning on selling an asset not in joint names, you can apply to the Federal Circuit Court as soon as you can get the forms completed.

When you actually go to court for the first time will depend on whether the matter is urgent and given an urgent listing, in which case it could be within days of filing your application. If it is not considered urgent, it will usually be listed for a first court date around six to eight weeks after you file the application.

Children’s matters best determined by negotiation with your ex
As with property matters, you can apply to the Federal Circuit Court for children’s matters at any time after separation. However, usually you will be required to prove to the court that you have attempted family dispute resolution (mediation) before filing your application for your application to be accepted by the court.

There are some limited exceptions to the requirement to provide evidence of mediation. If you find yourself needing to commence court proceedings for children’s matters, you should check with your lawyer to see if your circumstances qualify you for an exemption.

Again, depending on whether your matter is considered urgent or not, the time between filing your application and the court date could be a couple of days or up to eight weeks.

However, for children’s matters, as with property matters, it is always best to try to resolve the matter with the other parent and come to an arrangement you can both live with, even if neither of you is 100% happy with it, as the alternative is incurring costs of a protracted and expensive court case and putting yourself into a situation where an independent judge has the decision-making power and the matter is out of your control. Bear in mind that you may be even more unhappy with the judge’s decision than the arrangement you could have agreed on.

A special thank you to Contributing Author
Ruth Whisker
Divorce and Separation
Stacks Law Firm

Myth #1: “We were married so we should split everything 50/50”?

This is probably the most common family law myth we hear. There is no rule or requirement that any
separation, any married or de-facto, has to result in a 50/50 division. In determining any split, the
Family Court will consider:

  • the financial contributions each party made to the acquisition of property;
  • the contributions each party made as parent and homemaker;
  • any non-financial contributions made by either party; and
  • the future needs of both parties.

Myth #2: “They cheated on me so I should be entitled to more”

Australia is a “no-fault divorce” jurisdiction. This means that moral issues such as infidelity will not
impact the overall property settlement or determine who children of the relationship are to live with.

Myth #3: “They need me to agree to get a divorce”.

Both parties do not need to consent to get a divorce. You can object to a divorce application by filing
a Response to Divorce Application however the objection will only be upheld if:

  • you and your spouse have not been separated for a period of 12 months;
  • there was not a valid marriage; or
  • the court does not have the jurisdiction to hear the application.

If the procedural and legislative requirements have been met, it is virtually impossible to object to a
divorce application. Whilst you and your spouse can file a joint application for divorce one party can
file the application solely as well.

Myth #4: “We haven’t divorced so I don’t have to sort out finances yet”.

Property settlement orders can be made at any time after separation. It is important to remember
that there is a 12 month time limit for you to commence proceedings in the Family Court which
starts from the day your divorce order comes into effect.

We usually recommend that your property settlement matters are finalised either before or at the
same time as your divorce to ensure that you remain within this time limit.

Myth #5: “Kids should live equally with each parent”.

The paramount consideration in all parenting matters is to determine what is in the best interests of
the child. Whilst the court may consider whether an equal shared arrangement is in the best
interests of the child or children, this may not always necessarily be the case.

These myths often arise from relying on the internet, friends or family members for information
relating to your family law matters. It is always best to be informed and get your facts from an
experienced family lawyer.

The content of this article is intended to provide a general guide to the subject matter. Specialist
advice should be sought about your specific circumstances. Contact Bayside Mediation for more information and a 30 minute free phone consultation!

1/  We have our own consulting rooms, purpose-built for mediation. This means we don’t charge extra to hire rooms that don’t always accommodate mediation needs.  We also have the additional convenience of a coffee shop downstairs.

2/  Between us, George Filipowicz and myself, we have over 30 years of experience working as Mediators; We have also undertaken extensive extra training in areas such as ‘Dealing with Difficult Personalities’ and ‘Child Focused’ practice principles to better assist our clients.

3/ Bayside Mediation offers ‘Child Inclusive Mediation’, we are one of only a handful of private practitioners that can offer this service.  Child Inclusive Mediation is considered to be the ‘Best Practice’ when working with parents whose children are old enough to have a voice in their parents’ separation.

4/ Bayside Mediation offers after hours appointments to assist busy working couples to resolve their disputes quickly.

5/ We guarantee to see a client within 7-14 days of their initial inquiry.

6/  We offer joint mediation sessions of up to 4 hours in duration. Many of our clients are time poor and want their disputed resolved quickly and efficiently. We find offering extended mediation sessions where appropriate, enables that outcome.

7/ We offer continuity of service; Our mediators work exclusively with clients from their personal intake interviews to the resolution of their issues through the joint mediation sessions.

8/ Bayside Mediation specialise in all Family Law Disputes, Financial, Property, Children, Access, Wills, and Estates. We also offer Lawyer Assisted Mediation to firms across Melbourne.

9/ We will assess and where appropriate, we will work with clients with IVO’s in place.

10/ We pride ourselves in offering clients a safe and impartial space in which to have the conversations they need to have. But if clients need separate rooms to feel safe, we can provide  shuttle mediation. We also accommodate interstate and overseas clients with mediation services via telephone, Skype or Facetime.

Why would a solicitor recommend a client use a not-for-profit Family Law Mediation service instead of a private mediation service?

It is a question that causes me to wonder at the motives of some members in our legal profession.

  • Your solicitor knows it will take several weeks for both parties to progress through the not-for-profits intake process, often entrenching the dispute and adding to the animosity of both parties. Whereas private mediation can take as little as one or two weeks for clients to proceed through the same intake process.
  • Your solicitor knows that private mediation services have significantly higher agreement rates than the not-for-profit providers. Private providers don’t shy away from working with difficult cases.
  • Your solicitor knows that a private mediation services will work much harder to get both parties to the negotiating table. Private providers will work harder to get a result.
  • Your solicitor knows that many private mediation services offer longer mediation sessions which brings a matter to conclusion much more quickly, and ultimately at less expense to the parties involved; with both Children’s and Financial disputes.
  • And then there is the question of cost. The bond a client is asked to pay a solicitor to commence proceedings, will often be far more than is needed to fund an entire mediation process through a private provider; Child Access and Finances!
    So, who stands to benefit from you using a not-for-profit provider to mediate your family law matter when you can afford a private family law mediation service?  Your solicitor.

You are significantly more likely to end up in solicitor lead negotiations and ultimately in court, if you start your mediation experience using a not-for-profit mediation service, and that is money in the pocket of your solicitor!

Private Family Law Mediation or Family Dispute Resolution facilitated by a qualified and experienced FDRP, is the quickest and most cost-effective way to resolve your family law disputes.