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Family & Matrimonial Disputes


To assist you in understanding the process involved in achieving a successful result for you, we set out a brief summary of the principles and procedures involved for your information. The details set out will of necessity be brief and set out in general terms and may contain areas that are not relevant to your matter.  


Separation and divorce are steps of great significance. If you believe your relationship has fundamental and insoluble problems, and you wish to discuss the best way forward with someone else, remember that there are a wide range of non-Government marriage guidance and relationship counselling services available to you.

Separation is a stressful time for individuals and families. When and if you separate, you and your former partner may need to make some immediate decisions on practical issues, such as the welfare of your children or the division of some of your assets.  


The Family Court of Australia runs a counselling service designed to provide separating parents with an opportunity to talk about the needs of their children and arrange for their ongoing care. This service has qualified social workers and psychologists and is available to you before or after Court, proceedings have commenced. In addition, the Family Court runs information sessions with a range of issues relating to separation and its impact on your family.  


When you apply for a divorce, the Family Court follows these principles:

a)    The Family Law Act does not take account of the causes of marriage breakdown.

b)    It only requires that the marriage has broken down irretrievably.

c)    If you are married and separated for at least twelve months, you can apply to the Family Court for a divorce.

d)    If you have been married for less than two years, you will require a counselling certificate before applying to the Court for a divorce.

e)    If you have children, the Court has to be satisfied that you have made proper arrangements for your children’s welfare before granting divorce.

Divorce marks the legal end of your marriage. However, your divorce will not resolve issues such as:

a)    Orders for the parenting of your children;

b)    Child support; and

c)    The division of property and financial matters  

These require separate proceedings.

Accordingly, when you separate, you will usually need to sort out all these issues. It is important that attempts to resolve issues by negotiation in the first instance. This is less costly and is less strain on you. If our negotiations lead to an agreement, we can ask the Court to make consent orders.

There are a number of advantages in coming to an agreement. It saves you time and money and you know exactly what each party will get as opposed to the uncertainty of having to wait for a judge to decide the issues. Lengthy court proceedings can increase stress and add to the pressure that you and your family are under. Your legal fees will also be higher if you proceed to a hearing – the earlier the parties can reach agreement, the lower your costs.

If the issues do not resolve by negotiation, the Court will hear and decide the matter. An application is possible any time after separation and even before, you are divorced. However if you do divorce, your property application should be made within 12 months of your divorce becoming final. After this time, you will need the Court’s permission to begin proceedings. This will require an application and evidence explaining why you have not done so within the time limit. The Court may refuse the application.

If you begin proceedings in the Family Court concerning the former matrimonial home or money matters, you will normally be required to attend a conciliation conference. This conference offers you a valuable opportunity to work out an agreement about your property and finances. Its aim is to help you discuss matters and, if possible, reach an agreement on the financial issues arising from the breakdown of your marriage.  


Financial matters include applications about:

  • Property – to say how your property, income, financial resources, and liabilities should be shared between you
  • Spousal maintenance – to provide financial support for a husband or wife, or former husband or wife


The general principles in settling financial disputes in the Family Court arising from the breakdown of a marriage and the rules governing the division of assets are complex, and you have to consider several issues before making a final decision.

The Family Court takes three steps to decide which property orders to make.  


The Court ascertains the net assets of the parties. The general rule is that all assets are considered whether they are acquired before, during the marriage, or after the separation.

The definition of “property” is very wide. It includes almost everything of value. “Property” includes assets of either or both the parties, such as real estate, shares, cars, jewellery, savings, furniture and effects.

The Court must also consider the parties financial resources. These are funds or assets over which a party has influence or control. They include future superannuation entitlements, interests in trusts, long service leave entitlements, and personal injury claims.  


The Family Court will assess each party’s contribution during the marriage, both financial and non-financial, and allow the contribution made as homemaker or parent. Initial contributions such as what you bring into a marriage are relevant as are gifts and inheritances received during the marriage.  


Finally, the Court will assess both parties’ future needs taking into account a range of things, including age, health, income earning capacity, the property each party has, whether they have the care or support of children from the marriage and the financial circumstances of any new relationship. The Court can make a further financial adjustment because of weighing these matters.

It is important to realise that the way your assets will be shared between you will depend on the individual circumstances of your family. Your settlement will probably be different from others you may have heard about.  


There is no formula used to divide assets. No one can tell exactly what orders a judge will make. The decision is made after all the evidence is heard and the judge decides what is just and equitable based on the unique facts of the case.  


The introduction of the Family Law Reform Act in June 1996 changed the way that the Family Court decides any problems that separating or divorced parents making necessary arrangements for children. The Act makes it clear that, unless a Court orders otherwise, each parent has full parental responsibility for each of his or her children until 18.

Parental responsibility is not affected by any change in the parents’ relationship, for example, if they separate or remarry. This means that each parent has the responsibility for the children’s welfare, either in the long-term or on a day-to-day basis. This includes where the children will live and with whom they will have contact.

It will only be when the parties cannot decide these matters themselves that the Court will make orders that change these responsibilities and stipulate which parent has what responsibilities. These orders are called parenting orders.

There are four types of parenting orders:

1    Residence

An order to set out with whom a child will live including any shared arrangements

2     Contact

An order to set out the times that a child may have contact with a parent with whom they are not living, or anyone else who plays an important part in their life, such as a grandparent (contact can be either face to face, or by phone or letters)

3    Child maintenance

An order that provides for financial support of a child (for children not covered by the Child Support (Assessment) Act

4    Specific issues

An order about any other aspect of parental responsibility (this may include the day-to-day care, welfare, and development of a child, issues relating to religion, education, sport, or other specific issues)

These orders replace those under the previous law about guardianship, custody, and access. A parenting order may be applied for by:

a)    The parents of the child;

b)    The child itself;

c)    Any other person concerned with the care, welfare, and development of the child – this may include grandparents or other members of the child’s extended family.

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The orders required concerning children would depend on the particular circumstances of the family. Some examples are given below as a general guide. If both parents wish to retain full parental responsibility for the child, they may apply for an order that says the child live with one for a specific period of time and with the other parent for a specific period of time. This is a residence order for both parents – both parents will retain full parental responsibility for the child.

If it is believed it is in the best interest of the child that the child lives with one parent and that that parent have the sole responsibility for the child’s care, welfare and development, an order that “the child live with such party and that that party have sole responsibility for the child’s care, welfare and development” may be sought. This is a residence order and a specific issues order and would usually be made with a contact order for the other parent.

If it is believed, it is in the child’s best interests that the child live with one parent and have contact with the other parent for specified times order that “the child live with such parent and have contact with the other parent for (clearly specified periods of contact)”may be sought.

This is a residence order and a contact order. Both parents will retain full parental responsibility for the child but the parent with whom the child lives will retain the day-to-day responsibility for the child’s care, welfare, and development.

If one parent wishes to have orders made about any specific areas of parental responsibility for the child such as schooling, religion, health care and other matters that parent will need to apply by seeking an order, for example, that they “be responsible for all the decisions relating to the child’s education and health care”, and so on. Such orders are specific issues orders.

The Court encourages parents to agree about what arrangements should be made for children after separation. Agreements can be worked out with our guidance and the help of counsellors, and mediators.

It is going to cost you less, in time, money, and emotional distress, and be easier on your children, if you both agree on the arrangements you wish to make for your children after you separate. There are a number of ways of formalising these agreements, although you are not obliged to do so. You can both ask the Family Court to make parenting orders by consent – you will not actually have to go to court to do this. This is currently the usual way of making the arrangement binding. You can enter into a Parenting Plan, which deals with all significant issues relating to the child’s care, welfare, and development, and then ask to have the Family Court register it.

The issues involved in the care, welfare and development of your children can be complex, and any decisions you make now can have significant implications for the future. You should talk to us to ensure that any agreement reached will be binding, even if your former partner has a change of attitude in the future.

If the parties cannot agree even with the Court’s counselling and mediation services or other relationship guidance organizations, an application to the Court for court orders can be made. Any arrangements must be in the best interests of the children.  


Children of all relationships that have broken up since October 1989 are covered by the Child Support Scheme. The Scheme applies a formula for the purposes of working out how much a liable parent needs to pay to the carer for the support of children. Once a carer applies for child, support from the Child Support Agency an assessment is issued using the formula.

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In its simplest form that formula is:

a-b x c


a = gross taxable income from 2 years prior to the year of calculation with an inflation factor applied to it. For the purposes of negotiation, parties often use the current taxable income when working out how much to pay

b = single rate of pension (currently approximately $9,000.00)

c = child support percentage

The Child Support percentage varies depending on how many children you have:











5 or more



The Child Support Agency encourages people to reach their own agreements. Agreements can include such things as payment of school fees or mortgage as well as cash payments. Lodging an agreement can change a child support assessment.

Care needs to be taken in drawing up agreements if a carer is on a pension, if payments other than periodic payments are to be credited or if a lump sum or property is being transferred in lieu of future child support.

It is always best to check with us before finalising an agreement particularly if it is being done as part of an overall resolution of financial matters between separating couples.

If couples agree, they can change the terms of an agreement at any time by making a further agreement. If they cannot agree, then the terms of the agreement remain binding until a Court changes the terms of the agreement.  


The Child Support formula gives most parents an assessment that is just and equitable. There are however cases where it does not.

In those cases, an application can be made to a Child Support Review Officer for an independent review of the assessment. The Child Support Review Officer will make some determination as to whether or not there are special circumstances that would enable a change from the assessment. Those special circumstances are things like having a legal duty to maintain another child or necessary commitments to support you. Sometimes, the taxable income upon which the formula relates does not bear a realistic relationship to the actual package that the liable parent is receiving from an employer or the income of a self-employed person is receiving.

In these types of circumstances, the Review Officer will make a determination as to whether or not the formula should be varied. Although a Lawyer cannot be present at the review hearing, a Lawyer can assist in the preparation of material and submissions for that hearing.

If a party is not happy with the result received from a Review Officer then a party is entitled to a rehearing by the Court. We can assist in that rehearing. If there are other matters already before the Court, it may not be necessary to go to a Review Officer in the first place as there is a provision that allows all outstanding issues between two parties to be determined at the one time by a Court.  


The Family Court is very different from other Courts; because it aims to help, you settle your differences, instead of slugging it out. The Court is also unique in its overall responsibility towards your children, who are innocent parties to your divorce. As a result, the Court does far more than adjudicate disputes. It has a strong focus on providing you with information, counselling, and conciliation services. The Court, like us, wants you to understand your rights and duties and to help you settle your differences with your former partner. In the process, the Court aims to minimise the harm suffered by your children and the costs involved.

If you cannot agree on property orders with your former partner, one of you may issue proceedings seeking property orders. Afterwards, you will attend a “directions hearing” at the Court where a Registrar may make orders regarding the future management of your case and the valuations required.

You and your former partner will have to place values on all your assets and quantify your financial resources as part of this process. You will already have been required to exchange detailed statements of your financial circumstances (Form 17). You and your former partner must make a full and frank disclosure about your respective financial circumstances.

At all stages, the Court will encourage you to settle your difficulties by providing opportunities to meet and negotiate. These opportunities are provided at the Directions Hearing, the Conciliation Conference,and the Pre Hearing Conference. The most important of these is the Conciliation Conference. If no agreement is reached, your case will go to trial. You and your former partner will have your day in Court before a judge who will make a decision as to the ultimate division of your property.

The conciliation conference will help you both focus on the issues in dispute (with the help of the Registrar) and expand the common ground. The deal may not be done on the day of the conference, but it often takes place soon afterwards.

The General Steps chart attached to this letter shows how a case is likely to proceed. Mediation, although not shown in the chart, can also be used when appropriate to help couples avoid going to court.


These are held in the registry of the Court to help people understand the effects of separation, court procedures, and court services. Most people who file an application in the Court are asked to attend an Information Session however; you can also attend before any court action has started.  


Mediation is a co-operative problem solving process, which can help couples reach their own agreements, and offers a real alternative to traditional disputes resolution techniques. The Family Court runs a mediation service at some of its registries. While its mediators have training and experience in family law, they will not give legal advice, offer counselling, make decisions for you, or take sides.  


To begin any legal action in the Family Court it is necessary to first file (lodge) an application. The form used will depend upon the issues to be resolved.  


If you need the Court’s help to settle arrangements in relation to children, you will usually be asked to attend conciliation counselling. Counsellors can guide you through discussions on separation issues and your children’s needs. Conciliation counselling is held with a counsellor and usually only you and your former partner attend. However sometimes it may be appropriate for other significant people to be involved in these sessions. Children can also be involved when appropriate.  


This is usually the first time your matter will come before the Court. The date for this hearing is set when the application is filed. This will not be the final hearing date. Directions hearings are held with a registrar and we attend the Hearing with you. At this hearing, the court encourages parties, through their solicitors, to negotiate and even settle the matter there and then if possible.

Many people do resolve the matter at this stage and the Registrar is able to make orders reflecting the agreement reached provided that it is fair to each party. If you don’t reach agreement on all the matters the registrar will make orders about what other steps may need to be taken, including any papers that may need to be filed to allow the case to move on to the next step.

Exactly what course is taken from here will be determined by the nature of your case. We will discuss the facts of the situation and the differing views about the facts by the other party. This may involve looking at the needs of your children and obtaining various valuations on property.

Throughout this process, we use the Family Law Act as a framework. The Act provides the principles that a judge will apply in your case if you do not reach agreement and a final hearing is required.

If your case relates to children and if you have not been to conciliation counselling or further Counselling is required, the court will make an order for you to attend counselling.

If your case is of a financial nature and it is appropriate to do so, the registrar will order you to attend aConciliation conference.  


This is a conference with a registrar, which you and we, as your solicitors attend in an attempt to resolve disputes in financial matters, and offers you an opportunity to reach a settlement about your property and finances without going to a final hearing. We attend this conference with you and negotiate with the other party.

This service is only available after an application has been filed and the conference is ordered by the Court. The registrar talks with you about the options available in light of the provisions of relevant legislation and pervious decisions of the Court. Attendance at a conciliation conference is usually compulsory for anyone involved in property proceedings in the Family Court. If there are any family violence concerns, you can be seen separately.  


If you are still unable to resolve your dispute after conciliation, you case will move on to a pre-hearing conference. This conference is held with a registrar who will try to resolve any dispute involving financial matters. Sometimes a counsellor will also be present if children’s matters are involved. This conference has three objectives:

a)    To determine if your case can be resolved by agreement:

b)    If not, to set a hearing date and make decisions for the filing of evidence, and

c)    To consider the steps that must be taken to ensure your case will be ready on the day fixed for hearing.  


This is the trial, or the final hearing of your dispute, before a judge or judicial registrar who, after hearing all arguments and from all witnesses, will make a decision and orders that will finalise the matter... If you are unable to settle all your differences either by agreement, through mediation or at the conferences, your dispute will proceed to a hearing before a Judge or a Judicial Registrar of the Family Court.

Judges hear defended final cases about children and the larger property disputes. Judicial Registrars have power to hear cases involving interim issues about property where the gross value of the property is less than $300,000.

While the proceedings are formal by their nature, and are governed by the rules of evidence, proceedings before the Family Court are not designed to intimidate you – they will be as informal as the circumstances will allow.

Proceedings are open to the public but usually the only persons present are those involved in the hearing. Children under 18 are not admitted.


The following list provides the definition of some legal terms you may come across.  


We may, on no more than 2 occasions, adjourn (postpone) a directions hearing date with the written consent of all involved. We may need to ask for an adjournment to allow you to comply with the Family Law Rules, to allow settlement options to be fully explored, to allow time for proper service of documents or due to other special circumstances.  


The address nominated by a person involved in a matter before the Court for documents to be left at or posted.  


Your formal statement (evidence) in writing setting out the facts of the case your view of things. It must be sworn or affirmed, usually before a solicitor, as a true record. Affidavits may also be sworn by other people in support of your case (witnesses).  


The person who seeks to have the Court makes orders.  


Putting off a hearing to another time. Generally, hearings will not be adjourned unless unforseen or exceptional circumstances arise. If an adjournment is granted, the person who asked for it may be ordered to pay the other person’s costs.  


A procedure, which enables a person to challenge the decision, made about their case by the Court.  


A solicitor appointed by the Court to represent the child (sometimes also called a Separate Representative). The appointment is made either before or at the pre hearing conference. They will attend all hearings and conduct the case in a way, which promotes the child’s best interests.  


This means to do as directed, as ordered by the Court or required by the Act, Rules, and Case Management Guidelines. {parties must confirm with the contested list clerk that all matters have been attended to. If anyone has not done what is required the matter may be referred to the judge or judicial registrar for consideration of further orders or costs orders.  


These may be made where both of you come to an agreement and lodge that agreement in writing (usually called “Terms of Settlement”) for approval by the Court. These orders are as binding as any other order made by the Court.  


Word used to describe with whom and for how long a child will see a parent or other person who is important to them. Contact arrangements can be made by agreement or by an order of the Court.  


Qualified social workers and psychologists with specialist experience in working with families who are experiencing separation.  


Conciliation Counselling: This involves discussing the difficulties experienced (as an individual or as parents) regarding the arrangements for children during or after separation. The goal is to achieve an agreement, which is in the best interests of the children. Parties can arrange to talk to a Family Court counsellor at any stage of separation, before, after, or during any legal action. Counselling: Can be ordered by the Court under section 63F of the Family Law Act at any time after an application has been filed where there is a dispute about children. It is privileges and nothing said can be used later in trial. However, the Counsellor is obliged by the Act to notify the State Welfare Authority if an allegation of child abuse is made.  


Deputy registrars are qualified in law and have extensive family law experience. They usually run conciliation and pre hearing conferences.  


This is the date a matter first comes before the Court. The date is set when the application is filed. This will not be the final hearing date. Parties should attend and use the time to negotiate. Directions as to the way the matter will proceed (documents to be filed, counselling, and so on) are usually made here if parties do not reach settlement.  


This is a process, which requires a person to list and make available for inspection by others involved in the case all documents that are or have been in their possession, custody or control that relate to any of the matters in question in the proceedings. You may all agree to informal discovery, or one person may serve a discovery request on the other party. Alternatively, the Court may make an order for discovery. “Possession, custody or control” is a legal term, which refers to more than those documents, which a person may physically have in their possession.  


This may be ordered by a judge or judicial registrar to give them information about the family, particularly the children. Reports are prepared by Court counsellors and the counsellor can be cross-examined about it. Not all hearings involving children’s issues will involve a report.  


Lodging a document in a registry of the Court and having it stamped with the seal of the Court.  


The final hearing of a matter before a judge (or judicial registrar). Evidence will be heard by the judge who at the end of the hearing will make a decision and orders which will finalise the matter.  


This is the office of the judge, Judicial Registrar or Registrar. It means a matter is not being decided in open court.  


A person or company who has come into the proceedings with the permission of the Court. They must also comply with all orders and directions.  


Applications for an order other than a final order.  


Orders, which are made while awaiting the final decision in the matter.  


A conference with a registrar and counsellor to help resolve disputes about children or finances when other forms of conciliation have been unsuccessful. They are only held as a result of a recommendation by a registrar or counsellor or by order of the Court.  


Final decision of a judge, judicial registrar, or registrar. Sometimes you might get a judgement on an interim matter while you are waiting for the final hearing.


List of cases heard by judges and judicial registrars when decisions on urgent or interim procedural matters are sought about issues, which are outside the power of a registrar.  


Similar to a judge but has fewer powers.  


Covers all the formal legal steps you must make to get a hearing and a decision from the Court. The words “case,” “action” and “litigation” have similar meanings to “proceedings.”  


Financial support.  


One of the services offered by the Court to help settle disputes by agreement rather than a hearing. Mediators are trained in law, social work, or psychology. Sessions deal with children’s issues or combined children’s and financial issues. Mediation is available in the larger registries of the Court before an application is made and in some instances may be ordered by the Court if you both agree to take part. Mediators do not offer advice but help formulate options that are acceptable to you both.  


A term used to describe signed terms of agreement, which are to be made into court orders.  


The process where you each set out what you want and try to reach agreement. This can be done in writing or by discussions between solicitors.  


The Court has the power to order a person to do certain things. Judicial registrars and registrars can only make certain types of orders. This work can also refer to a certain part of the Family Law Rules, which are divided into Orders, for example Order 22 rule 2.  


All courts list more than one case before a judge for hearing at the one time. This ensures as many cases as possible are heard as some settle and some do not go ahead for other reasons. If a judge cannot hear your matter on the set day you will be given, another starting dates as soon as possible.  


All the duties, powers, responsibilities, and authority, which, by law, parents have in relation to their children. Each partner has parental responsibility for each of their children who is under 18 unless they have agreed otherwise or the Court has made an order, which changes this responsibility in some way. Parental responsibility is not affected by any changes in the parent’s relationship, such as separation, divorce, or remarriage.  


A plan agreed between parents about arrangements for the ongoing care, welfare, and development of their children after separation or divorce. This could include with whom the children will live, with whom they will have contact, and specific issues such as schooling, healthcare, and so on.  


A case, which has already been, decided which might serve as an example for other cases.  


Held by a registrar often with a Court counsellor before the matter is listed for a final hearing. It is another opportunity to settle your case. If that is not possible the registrar will determine if the matter is ready for final hearing and will set both the date for the final hearing and a timetable for the filing of final court documents.  


These are services offered by the Court to help you settle your dispute by agreement rather than a hearing. These services include Information Sessions, group programs for parents and children, voluntary conciliation counselling, mediation, Court ordered conciliation counselling, conciliation conferences with registrars and joint conciliation conferences with registrars and counsellors.  


Orders that are sought or made in a case to prepare it for hearing or negotiation.  


The person who conducts directions hearings and pre hearing conferences and determines most divorce applications. Registrars have the power to make directions to ensure the case is made ready for a hearing and to hear some cases including maintenance matters.  


Word used to describe with whom a child would live. This can be by agreement or Court order.  


The person who responds to the application by agreeing to or opposing the orders sought by the applicant.  


The provision of documents by one party to another. This can be done by personal delivery (not by you, but by a friend or professional process server), by post and, in some instances, by fax.  


An agreement or court order about any aspect of parental responsibility other than contact or residence. Specific issues could include a child’s education, religion, sporting activities and so on.  


A husband or wife  


Financial support for a husband or wife, or former husband or wife as the case may be.  


A document issued by the Court which requires a person to go to Court to give evidence or bring documents, books or things to the Court which are in their possession, custody or control.  


Record of evidence in court proceedings.  


A person who gives evidence to the Court about his or her knowledge of a case.  


Behan Legal advises and assists clients on these important issues. For an appointment, call 03 9646 0344 .

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