Common Legal Questions

Family Law – Top 5 Frequently Asked Questions

I am having a dispute over custody with my ex, do I have to attend a parenting mediation?

It is an obligation on the parties to attend a family dispute resolution conference (or mediation) prior to the commencement of court proceedings. In exceptional circumstances the court can waive this requirement if the court is of the view that there is an urgency to the matter or if there are issues which may pertain to violence in the family or if one party is unable to participate effectively. Also, if there are already orders existing which have been made in the previous 12 months the court may dispense with the need to attend a parenting mediation.

My partner and I have separated and we wish to resolve our financial issues. Do we need to go to court?

The majority of property settlements occur outside the court system. It is indeed the preferable course. It is a much cheaper and quicker alternative to commencing proceedings in court. If the parties are able to resolve their differences and reach a resolution then the agreement can be formalised and lodged with the Family Court for appropriate orders to be made. No court attendance is required. An alternative is for the parties to enter into a binding financial agreement which does not need to be lodged with the court. There are however a number of specific legal requirements pertaining to a binding financial agreement which must be fully complied with in order to ensure that the agreement is valid.

My husband and I have separated. When can I apply for a divorce?

An application for a divorce can only be filed with the court after there has been a period of 12 months of separation. That is, the parties must be living separately and apart. This does not mean that one of the parties must leave the place of residence previously occupied by both. You can still reside within the house. You must however not cohabit as husband and wife but rather live separately and apart.

I have been separated for some time. Am I out of time to make a property settlement claim?

If you were engaged in a de facto relationship then there is a 2 year limitation period for the making of a property settlement claim which applies from the date of separation. This also applies to a claim for spousal maintenance. In the event that you were married there is a 12 month limitation period as from the date the divorce became effective, in which to make an application for a property settlement or spousal maintenance. There are however exceptional circumstances where a court may grant an extension to enable the parties to proceed outside these limitation periods.

 

I am a grandparent and I wish to spend time with my grandchild but my child will not allow this. Can I obtain an order allowing me to spend time with my grandchildren?

In any proceedings before the court involving children then the interests of the children are paramount. They take precedence over the interests of any other persons. The courts however have long recognised the rights of children to spend time with significant people in their lives. Accordingly any application before the court will be determined according to these principles. If the court is of the view that spending time with the grandparent is best for that child then the court may be inclined to make such an order. The parties will be required to attend a family dispute resolution conference prior to the commencement of any formal court proceedings.

 

Brydens Lawyers is the law firm specialising in family law.   Whether it be the preparation of an application for divorce or the most complicated property and custody dispute Brydens Lawyers will ensure that you are listened to, heard, treated with empathy and respect whilst working towards a fast and satisfying solution.

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