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What is family law? When a marriage or de facto relationship breaks down often there is a need for the parties to sort out:
The area of law, which relates to these issues, is what is known as "family law". Such a relationship breakdown can be traumatic and upsetting. O'Farrell Robertson McMahon can assist you at this difficult time by providing the right information and advice to you to enable you to understand the matters that need to be attended to and the best way to achieve a fair result. The following information is provided as initial information to answer many of the usual questions about Family Law. The information should not be seen as advice specific to your situation – you should see a Family Lawyer at O’Farrell Robertson McMahon to discuss your circumstances specifically and obtain advice tailored to your individual situation. Separation is when a relationship ends by the parties no longer living together as partners (husband and wife or de facto partners). In some circumstances, separation can even occur with both parties still living in the same house. There are no formal legal documents that need to be signed in order to be separated, but it is essential that you obtain legal advice as soon as you separate, or preferably beforehand. By having this advice you will be more certain of what will be likely to happen in the future. You will also be able to plan for the future and protect your interests in the meantime. There are a number of matters which may need to be considered upon separation including:
Since 1979 the Family Law Act has provided that in Australia a divorce can be granted by the Family Court as long as a party to a marriage can prove to the satisfaction of the court that the marriage has broken down irretrievably. This is established by proving that the parties have lived separately and apart for 12 months. A divorce is the final ending of a marriage and must be obtained before you remarry. If there are children of the marriage aged under 18 then the court must be satisfied that appropriate arrangements have been made regarding the children before a divorce is granted. This does not require a parenting order to be made but is addressed through specific information requested on the divorce application. However it is possible to sort out matters regarding children and the division of property before the divorce, as they are distinct from the divorce. The only time limit that applies is that any application for a property settlement or spousal maintenance must be made within 12 months of a divorce being granted. A divorce becomes final or “absolute” one month after the decree has been made in court. At O'Farrell Robertson McMahon we can provide you with advice regarding what steps you should take at what time to ensure that your Family Law matters are resolved as quickly and with the least distress. We can also take all the steps necessary to obtain a divorce for you. The Family Law Act provides methods by which an order can be made by the court regarding children and/or property matters by both parties agreeing (consent orders). If you and your partner are able to come to an agreement regarding such matters, either on your own or with the assistance of counselling or negotiations conducted by solicitors, then orders can be made in this manner. This may not even require you to attend court. If you and your former partner are unable to reach an agreement on these matters, or there is some urgency or a need to obtain interim orders to protect the stability of current arrangements then it will be necessary to make an application to the court for a magistrate or judge to make an order. At O'Farrell Robertson McMahon our advice to you will include whether it is necessary to make any application to the court or whether you would be best to attempt to resolve the matter by negotiation. Which court will my case go to?
With our office located in Bendigo there are three options we utilise as to which court an application should be made in. The Magistrates Court here in Bendigo has jurisdiction can hear some Family Law matters and is usually quicker and cheaper. Often the Magistrates Court is used to obtain interim (in the meantime orders) until the matter is referred to another case. The Federal Magistrates Court visits Bendigo regularly hear and make decisions in Family Law cases. The Federal Magistrates Court has power to decide Family Law cases where the gross value of the property is less than $600,000 or disputes regarding children where the court hearing time is likely to be less than 2 days. The Federal Magistrates Court is designed to make hearing of Family Law matters quicker and cheaper than in the Family Court. The third option is to have your case heard in either the Federal Magistrates Court or the Family Court in Melbourne. Which court is right for your case depends upon how urgent it is to obtain orders, what is the delay in that court at the time, how much you wish to spend on your case and the nature of the matters involved in the case. We will discuss these matters in with you before issuing any proceedings. FOR FURTHER INFORMATION ABOUT FAMILY LAW PLEASE CONTACT ACCREDITED FAMILY LAW SPECIALIST MARIKA McMAHON OR EXPERIENCED FAMILY LAW PRACTITIONER LAURIE O’FARRELL.
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