For Family Law, the type of orders you have in place will determine what options you have in relation to enforcement.
Contravention Applications apply to parenting orders and can be made when one party alleges that the other has failed to comply with the orders. This is most frequent when one party does not allow the other to spend time with the child.
Parenting orders are a set of orders finalised by the court which detail the parenting arrangements for a child or children. They can be made either by consent or after a court hearing/trial.
The arrangements that parenting orders deal with include where the child is to live, the time the child will spend with each parent or other people (grandparents etc.), the responsibility of the parents and any other important aspect of their welfare, care and development.
If you and your partner have come to an agreement on division of property and now need to finalise the agreement, it is important to consider which option is most appropriate for your circumstances.
Financial Agreements are a good option to finalise the division of property without having to go to court as they do not require the court’s approval to become binding. The downfall of this option however is that they do not offer the same protection for further claims as would filing Consent Orders with the court.
A Parenting Plan is an informal written agreement between the parents of a child, setting out the parenting arrangements. Parenting Plans are designed to be a less formal process than court to document a parenting agreement.
For a Parenting Plan to be considered effective, it must be signed and dated by the parents of the child. This can include grandparents, step-parents or other legal guardians.
If a Parenting Plan details information on child support, a copy should be provided to the Department of Human Services (DHS). This can assist with a determination of how much child support is payable where it details the amount of time spent with each parent. If the plan specifies amounts payable for child support, this cannot be enforced by DHS unless a separate child support agreement is in place and has been accepted by them.
Parenting Plans are not legally enforceable as they cannot be registered with the court. For an agreement to be enforceable, proper Parenting Orders are required to be made with the court. You should seek legal advice if you are unsure whether you require Parenting Orders.
Although the statistics for divorce suggest it is becoming more common nowadays, it is nevertheless a difficult time for those going through it. What follows is a (very) brief overview of what happens after a married couple separates and wants to divorce.
Have you been separated long enough?
Before a divorce application can be made, the parties are required to have been separated and living apart for a period of not less than 12 months. It is possible for an application to be made if the parties have separated but continued living together however there must be proof that there has been a breakdown of the marital relationship.
We meet the preconditions. What now?
Divorce applications can be completed by a solicitor or by yourself if you choose to self-represent. A filing fee is payable when lodging the divorce application with the court however applicants with a grant of legal aid or holder of a Centrelink card can apply for a reduction of this fee. If both parties are agreeable to the divorce, a joint application can be made.
Once the application has been lodged, it is required to be served on the other party either by post, process server or electronically and must be accompanied by a form called “Acknowledgment of Service”. It is also a requirement to show proof of service usually via an Affidavit.
Is there a fight? How is it resolved?
A divorce application can only be opposed on the basis that there has not been a period of 12 months of separation of the court does not have jurisdiction.
A hearing will be set down whereby it is required to be proved that a marriage existed (this is usually already done at the filing stage by way of marriage certificate), there has been an irretrievable breakdown of marriage, service of the application has been effected and that proper arrangements have been made for any children under the age of 18. Your lawyer will usually attend the hearing on your behalf unless there are children under 18 in which case you will also be required to attend.
The divorce order will be made at the hearing if the court is satisfied of the above and will take effect 1 month and 1 day after the hearing at which time both parties are free to re-marry.
What about the house? What about the children?
These need to be dealt with separately by a Court or by Consent, and a Divorce application will not resolve these issues. A Divorce application being finalised will also not automatically revoke your Will – if you don’t want your worldly possessions to be passed to your former partner should you pass away, ensuring you have a new Will prepared is essential. If you instruct a lawyer, they should advise you on all of these issues and how to resolve them.
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