As a family lawyer in Melbourne and Dandenong, Victoria, with over 20 years of experience dealing with the Family Law Act 1975, I help couples going through divorce or separated parents make decisions that consider the interests of their children.
Feel free to contact me if you don’t find the answer to your question on this page.
Here are the most common questions about family law and divorce in Victoria that I get from people:
- What is the divorce procedure in Australia?
- How do I apply for a divorce in Australia?
- Is the divorce procedure in Victoria different?
- What is the process for property settlement after divorce?
- How is child custody determined in Australia?
- What is spousal maintenance and how do I apply for it?
- What are the grounds for divorce in Australia?
- Can I get a divorce without my partner’s consent?
- How long does a divorce in Australia take?
- What is the role of a family law mediator?
- Can grandparents apply for visitation rights in Australia?
- What happens if we can’t agree on a parenting plan?
- What happens to superannuation in a divorce?
- Can I change my child’s last name after divorce?
- What is a ‘binding financial agreement’ in family law?
- How does domestic violence affect family law proceedings?
- What should I do in case of domestic violence?
- How do I enforce a family court order?
- Is it important to have a lawyer in family disputes?
- What does Family Law Act 1975 Australia say?
- What Is Victoria Legal Aid?
- Am I eligible for Victoria Legal Aid?
- Am I eligible for Legal Aid in Melbourne?
- How does child support in Australia work?
- How much child support will I pay if I make 100k in Australia?
What is the divorce procedure in Australia?
In Australia, the divorce process is relatively straightforward and does not require assigning blame to either party. The legal system follows a “no-fault” approach, meaning that the only ground for divorce is the irretrievable breakdown of the marriage, demonstrated by at least 12 months of separation. The Family Court of Australia or the Federal Circuit and Family Court of Australia (FCFCOA) handles divorce applications. It is important to note that a divorce only legally ends the marriage; it does not resolve issues relating to children, property, or financial arrangements, which must be dealt with separately.
How do I apply for a divorce in Australia?
To apply for a divorce in Australia, you need to file an application with the Federal Circuit and Family Court of Australia (FCFCOA). You must meet certain eligibility criteria, including having been separated for at least 12 months. Applications can be submitted online via the Commonwealth Courts Portal.
Is the divorce procedure in Victoria different?
The divorce procedure in Victoria is generally the same as in the rest of Australia, as divorce laws are governed by the federal Family Law Act 1975. The Family Court of Australia and the Federal Circuit and Family Court of Australia (FCFCOA) handle divorce applications uniformly across all states and territories, including Victoria. Therefore, the steps for obtaining a divorce, such as meeting the eligibility criteria, completing the required separation period, filing the application, and attending a court hearing (if necessary), apply nationwide.
However, there may be some minor practical differences in how services are accessed locally in Victoria, such as specific support services available for families, regional court practices, or the way legal advice is provided through community legal centers. These differences do not affect the core divorce process but may influence the support options available to you throughout the procedure.
What is the process for property settlement after divorce?
Property settlement involves dividing assets and liabilities between former partners. It can be done by mutual agreement, through mediation, or by court order if parties cannot agree. The Family Law Act 1975 requires the division to be “just and equitable,” considering factors like financial contributions and future needs.
How is child custody determined in Australia?
Child custody, now referred to as “parental responsibility” or “parenting arrangements,” is determined based on the child’s best interests. Courts consider factors such as the child’s relationship with each parent, the child’s views (if appropriate), and the capacity of each parent to provide for the child’s needs.
What is spousal maintenance and how do I apply for it?
Spousal maintenance is financial support paid by one partner to the other after separation or divorce. You can apply for spousal maintenance through the FCFCOA, and eligibility is based on factors like the financial needs of the applicant and the ability of the other party to pay.
What are the grounds for divorce in Australia?
Australia has a “no-fault” divorce system, meaning that the only ground for divorce is the irretrievable breakdown of the marriage, demonstrated by 12 months of separation. There is no need to prove wrongdoing or fault by either party.
Can I get a divorce without my partner’s consent?
Yes, you can apply for a divorce even if your partner does not consent, as long as you meet the legal requirements, including the 12-month separation. If your partner does not participate in the proceedings, the court may grant a divorce in their absence.
How long does a divorce in Australia take?
The process generally takes about four months from the date of filing the application to the granting of the divorce order. If there are complications, such as disputes over children or property, the process may take longer.
What is the role of a family law mediator?
A family law mediator helps separated couples resolve disputes regarding parenting arrangements, property settlement, or other issues outside of court. Mediation is often required before proceeding to court, and the mediator facilitates communication to help parties reach an agreement.
Can grandparents apply for visitation rights in Australia?
Yes, grandparents can apply to the Family Court for visitation rights if they are being denied contact with their grandchildren. The court will consider the best interests of the child, including the benefit of having a meaningful relationship with extended family members.
What happens if we can’t agree on a parenting plan?
If you and your ex-partner cannot agree on a parenting plan, you may need to go to court for a “parenting order.” The court will decide based on the child’s best interests, considering factors such as the child’s needs, wishes, and the ability of both parents to care for the child.
What happens to superannuation in a divorce?
Superannuation is considered property under Australian family law and can be divided between separating spouses. The division is based on the total assets of the couple, and the court may issue a “superannuation splitting order” to ensure a fair distribution. Both parties’ contributions to the superannuation are considered in the overall property settlement.
Can I change my child’s last name after divorce?
To change a child’s last name after divorce, both parents typically need to agree. If one parent does not consent, the other can apply to the Family Court for permission. The court will decide based on what is in the best interests of the child, considering factors such as the child’s relationship with each parent and the impact of the name change.
What is a ‘binding financial agreement’ in family law?
A binding financial agreement (BFA) is a legal document outlining how assets, finances, and property will be divided after separation or divorce. It can be made before, during, or after a relationship. To be legally binding, both parties must have independent legal advice before signing. A BFA helps avoid court intervention in property settlements.
How does domestic violence affect family law proceedings?
Domestic violence can significantly impact family law proceedings, especially in parenting matters. The court prioritizes the safety and well-being of children and will consider any history of violence when making decisions about custody and visitation. Domestic violence orders (such as AVOs) may also restrict a party’s contact with the other parent or children.
What should I do in case of domestic violence?
If you are experiencing domestic violence in Australia, your safety is the top priority. In an emergency, call 000 for immediate police assistance. You can also reach out to support services such as 1800RESPECT (1800 737 732) for confidential counseling and advice. It’s crucial to consider creating a safety plan, which may involve having a packed bag with essentials and identifying safe places you can go. You can apply for a Family Violence Intervention Order (FVIO) through the local magistrates’ court to protect yourself from the perpetrator. Seeking legal advice and support from domestic violence services can also help guide you through the available legal protections and support systems to ensure your safety and well-being.
How do I enforce a family court order?
If a party is not complying with a family court order, such as one related to parenting arrangements or property division, you can apply to the court to enforce the order. The court has various enforcement mechanisms, including fines, community service, or even imprisonment, depending on the severity of the breach.
Is it important to have a lawyer in family disputes?
Family lawyers in Melbourne play a crucial role in helping individuals navigate the complexities of family disputes, such as divorce, child custody, property settlements, and spousal maintenance. Family law can be intricate and emotionally charged, requiring specialized knowledge to ensure fair and equitable outcomes.
A family lawyer can offer guidance on the legal rights and obligations of each party, help mediate disputes, and, if necessary, represent their clients in court. Their expertise ensures that clients make informed decisions and that the legal processes are handled efficiently, reducing stress and confusion during what is often a difficult time.
Having a family lawyer is particularly important in disputes involving children. Issues such as child custody, visitation rights, and child support require careful consideration of the child’s best interests. A lawyer can help negotiate parenting agreements, or if an agreement cannot be reached, they can advocate for their client’s interests in court.
Melbourne family lawyers are well-versed in the Family Law Act 1975 and understand how to build strong cases that ensure the safety and well-being of children, while also aiming to maintain relationships with both parents when appropriate.
In property settlements and financial matters, family lawyers are essential for ensuring a fair division of assets. Melbourne family lawyers can provide critical advice on property settlement agreements, ensuring that both financial and non-financial contributions are adequately recognized.
They also assist in negotiating complex arrangements such as dividing superannuation or handling shared businesses. Their experience is vital in protecting clients from unfair agreements, particularly in high-asset or complicated financial situations.
Additionally, family lawyers can help clients explore alternative dispute resolution methods, such as mediation or collaborative law, which can be less adversarial and more cost-effective than going to court.
This is especially beneficial in family law disputes, where ongoing relationships, particularly regarding co-parenting, may need to be preserved. By engaging a family lawyer in Melbourne, clients can better protect their interests and achieve more favorable outcomes, whether through negotiation or court proceedings.
What does Family Law Act 1975 Australia say?
The Family Law Act 1975 in Australia is a comprehensive legal framework that governs family law matters, including marriage, divorce, child custody, property settlements, and spousal maintenance.
It applies to all states and territories in Australia and emphasizes the principles of fairness, the best interests of children, and no-fault divorce. Below are the key aspects of what the Family Law Act 1975 covers:
No-Fault Divorce
The Family Law Act 1975 introduced the concept of no-fault divorce in Australia, meaning that couples can apply for a divorce without needing to prove wrongdoing (such as infidelity or abuse). Instead, they must demonstrate that the marriage has irretrievably broken down, which is evidenced by 12 months of separation.
The court does not consider reasons for the breakdown of the marriage in divorce proceedings.
Best Interests of the Child
One of the most important principles in the Family Law Act 1975 is that the best interests of the child must be the paramount consideration in any decision about parenting arrangements.
The court looks at various factors to ensure that the child’s physical, emotional, and psychological well-being is prioritized. These factors include:
- The child’s relationship with each parent.
- The capacity of each parent to provide for the child’s needs.
- The child’s views (depending on their age and maturity).
- Any history of family violence or abuse.
Parental Responsibility
The act promotes the idea of shared parental responsibility, meaning both parents should be involved in making major decisions about the child’s life (such as education, health, and religion). This does not necessarily mean equal time with each parent, but rather that both parents retain the legal right to make decisions unless the court orders otherwise, such as in cases involving family violence or abuse. The court can grant sole parental responsibility to one parent if it is in the child’s best interests.
Property Settlements
The Family Law Act provides a legal framework for dividing property between separating spouses. The division is based on what is “just and equitable” rather than an automatic 50/50 split. The court considers:
- Each party’s financial and non-financial contributions to the marriage or relationship (including homemaking and child-rearing).
- The future needs of each party (e.g., their age, health, and ability to earn an income).
- The care and support of any children.
Spousal Maintenance
The act allows for spousal maintenance, where one party may be required to provide financial support to the other after separation if that party cannot support themselves adequately.
The court considers factors like age, health, income-earning capacity, and whether the party seeking maintenance has the care of any children.
De Facto Relationships
The Family Law Act also covers de facto relationships (including same-sex couples) that have lasted for at least two years or involve children. De facto couples have the same rights and obligations as married couples regarding property settlements and spousal maintenance.
Family Violence and Child Protection
The act has provisions to address family violence and ensure the safety of children and other family members. In cases involving violence, the court can issue orders, such as Family Violence Orders, to protect victims.
The presence of family violence is a significant factor in determining parenting and custody arrangements.
Dispute Resolution and Mediation
Before proceeding to court, the Family Law Act 1975 encourages Family Dispute Resolution (FDR), which is a form of mediation to help parents resolve disputes about children and property without litigation.
FDR is mandatory in most cases before parents can apply for parenting orders, unless there is family violence or other urgent matters.
The Family Law Act 1975 aims to create a fair and equitable system for resolving family disputes in Australia, prioritizing the best interests of children and encouraging amicable resolutions where possible.
It provides clear guidelines on divorce, child custody, property settlements, and spousal support, while also addressing family violence and ensuring that the rights of both married and de facto couples are protected.
What is Victoria Legal Aid?
Victoria Legal Aid (VLA) is a government-funded organization in Victoria, Australia, that provides free or low-cost legal services to individuals who cannot afford private legal representation.
The primary goal of VLA is to ensure that all Victorians, particularly those who are socially or economically disadvantaged, have access to justice. VLA offers assistance in various areas of law, including family law, criminal law, civil law, and matters related to child protection, immigration, and mental health.
VLA provides a range of services depending on the needs and eligibility of the individual. These services include legal advice, information, duty lawyer services, and, in some cases, legal representation in court.
VLA also offers assistance through family dispute resolution (FDR), helping parties resolve family law disputes, such as child custody or property settlements, outside of court. For those facing more complex legal matters, such as criminal charges or family violence, VLA may provide ongoing legal representation, subject to eligibility criteria like income and case merit.
One of VLA’s key roles is to help vulnerable groups, such as victims of family violence, people with disabilities, children in protection cases, and individuals facing criminal charges who are at risk of imprisonment.
Victoria Legal Aid prioritizes cases where individuals face significant disadvantages or where legal assistance can make a substantial difference in their lives. Additionally, VLA also provides community legal education to help the general public understand their legal rights and responsibilities.
Overall, Victoria Legal Aid is a critical resource for ensuring equitable access to the legal system, particularly for those who may otherwise be unable to afford legal assistance. By offering both preventative and responsive legal services, VLA contributes to a fairer and more just society in Victoria.
Am I eligible for Victoria Legal Aid?
Eligibility for Victoria Legal Aid (VLA) depends on several factors, including your financial situation, the type of legal issue you are facing, and the merits of your case. VLA prioritizes helping individuals who are socially or economically disadvantaged and ensures that those most in need of legal assistance receive support. Below are the key factors that determine eligibility:
1. Means Test (Financial Eligibility)
VLA uses a means test to assess your financial situation. This test looks at:
Income:
Your weekly or monthly income, including wages, government benefits, or other forms of income.
Assets:
The value of your assets, such as property, savings, and vehicles (with some exceptions like the family home or basic personal items).
If your income and assets fall below a certain threshold, you may qualify for free or low-cost legal aid. In some cases, if you are on Centrelink benefits, you are more likely to meet the financial eligibility criteria.
2. Type of Legal Issue
Not all legal matters are covered by VLA. Priority is given to cases involving:
Criminal law:
Particularly if you are facing serious charges that may result in imprisonment.
Family law:
Issues such as child custody, family violence, child protection, and divorce.
Civil law:
Cases involving mental health, tenancy disputes, social security, or discrimination.
Certain areas of law, such as business disputes or minor civil claims, may not be covered.
3. Merit Test (Likelihood of Success)
In some cases, VLA will also consider the merits of your case, meaning they will assess whether providing legal aid would likely result in a positive legal outcome for you. If there is little chance of success, you may not qualify for legal aid.
4. Other Considerations
In addition to financial and case-specific factors, VLA gives priority to vulnerable individuals, such as:
- Victims of family violence.
- Children in need of protection.
- People with mental health issues or disabilities.
- Indigenous Australians.
If you meet these criteria and have a legal matter that VLA covers, you are more likely to be eligible for assistance. Please feel free to contact us for legal advice.
Am I eligible for Legal Aid in Melbourne?
Eligibility for Victoria Legal Aid (VLA) in Melbourne, as in the rest of Victoria, depends on a few key factors, including your financial situation, the type of legal issue you are dealing with, and the merits of your case. Below are the criteria to determine if you might be eligible:
1. Means Test (Financial Eligibility)
To qualify for VLA’s services, you need to pass a means test, which examines:
Income:
Your income level, including wages, pensions, or government benefits.
Assets:
Your savings, property, or other financial assets (excluding essential items like your family home or vehicle).
If you receive Centrelink benefits or have a low income and limited assets, you are more likely to meet the financial eligibility requirements. People with higher incomes or substantial assets may be required to contribute toward the cost of legal services.
2. Type of Legal Issue
VLA gives priority to certain types of legal issues. You are more likely to receive assistance if your case involves:
Family law:
Including child custody, family violence, divorce, and child protection.
Criminal law:
Particularly if you are facing serious charges or imprisonment.
Civil law:
Including mental health, tenancy, social security disputes, or discrimination.
VLA does not typically cover matters like business disputes, personal injury claims, or minor civil cases.
3. Merit Test (Likelihood of Success)
In some cases, Victoria Legal Aid will consider the merits of your case, meaning they will assess whether your case has a reasonable chance of success. This test is often applied to more complex cases to ensure that legal aid resources are used effectively.
4. Special Circumstances
VLA also prioritizes individuals in vulnerable situations, such as:
- Victims of family violence.
- Children needing protection.
- People with disabilities or mental health issues.
- Indigenous Australians and individuals from other marginalized groups.
You can check your eligibility by using VLA’s online eligibility checker or contact us for advice.
How does child support in Australia work?
Child support in Australia is designed to ensure that both parents contribute financially to the upbringing of their children after separation or divorce. The system is managed by Services Australia (formerly the Department of Human Services) through the Child Support Scheme, which calculates, collects, and distributes payments between parents.
The system aims to ensure that children continue to receive the financial support they need, regardless of their parents’ relationship status.
How is child support calculated?
Child support payments in Australia are calculated using a specific formula that takes into account:
Both parents’ incomes:
The formula uses each parent’s gross income, taking into account a self-support amount to ensure each parent can meet their own basic living expenses.
Care arrangements:
The amount of time each parent cares for the child (measured in nights) is factored into the payment calculation. The more time a parent cares for the child, the less they may need to pay in child support.
Costs of raising children:
The formula is based on the estimated costs of raising children in Australia, which increases with the number of children and their age.
The formula generates a child support amount, ensuring that the parent with the higher income or lower care burden pays more, reflecting the actual costs of raising the children.
How much child support will I pay if I make 100k in Australia?
The amount of child support you will pay if you earn $100,000 in Australia depends on several factors, including both parents’ incomes, the number of children, and the amount of time each parent cares for the children.
The Child Support Agency (CSA) uses a formula to calculate the payment amount, taking into account these factors. Below is an outline of how the child support calculation works.
Basic Formula for Child Support
The child support formula takes the following steps:
1. Determine both parents’ incomes:
Your income and the other parent’s income are combined to get a total combined income. A “self-support” amount (currently about $27,508) is deducted from each parent’s income to ensure basic living expenses are covered.
2. Determine the income percentage:
Your income is divided by the combined income to determine your share of the financial responsibility.
3. Adjust for care percentage:
The amount of care you provide for your children is factored in. The more care you provide, the less child support you will pay.
4. Apply the cost of raising children: The estimated cost of raising children (based on their age and number) is then applied. The cost is shared between the parents according to their respective income percentages.
How Does Care Percentage Affect Child Support Amount?
The amount of child support you pay decreases based on how much time you care for your children. If you share care equally (50/50), child support payments may be lower, or you may not need to pay at all. Here’s how care levels impact support payments:
0-14% care:
Full child support payable.
35-65% care:
Shared care, so child support payments are reduced based on care provided.
More than 65% care:
Payments may be significantly reduced or eliminated, depending on your income and the other parent’s situation.
Example Calculation for $100,000 Income
Let’s assume:
- You earn $100,000 gross per year.
- The other parent earns $50,000.
- You have 2 children, aged under 13.
- You have 35% care (approx. 128 nights per year).
Based on this situation, here’s a general estimation of how much child support you might pay:
- After deducting the self-support amount ($27,508), your income for child support purposes would be approximately $72,492.
- The other parent’s income after deduction would be approximately $22,492.
- Combined income: $72,492 + $22,492 = $94,984.
- Your share of the combined income would be around 76%.
- The estimated cost of raising 2 children under 13 is about $24,000 annually, according to CSA estimates.
- Since you provide 35% care, the formula reduces the amount payable based on that care level.
Roughly, you could expect to pay about $14,000 – $18,000 per year, depending on the care arrangements and other factors.
Reassessments and Adjustments
Child support calculations are not static and may be adjusted if:
- Either parent’s income changes significantly.
- Care arrangements change.
- Additional expenses, such as private schooling or medical needs, are factored in.
The exact amount of child support you will pay on a $100,000 income will vary based on the other parent’s income, the amount of care you provide, and the specific costs related to raising your children. You can use the Child Support Estimator on the Services Australia website to get a more accurate calculation based on your specific situation.
For specific advice and up-to-date information, it’s advisable to consult a legal professional or a family lawyer in Dandenong or where you live.
Your Family Lawyer in Dandenong
