Family Law

The Family Law Department of Stuart Lawyers has a great deal of experience in all aspects of Family Law including:

• Applications for Divorce;
• Defacto relationship matters;
• Children’s issues and parenting arrangements;
• The drafting and negotiation of Financial Agreements (Pre-Nuptial Agreements);
• Spouse maintenance disputes;
• Family violence disputes; and
• International child abduction matters.

We are passionate about our work and are committed to the prompt and efficient resolution of Family Law disputes. One of our great strengths is our personal approach to our clients. We pride ourselves on the fact that we always promote the resolution of a Family Law matter which focuses on the best interests of the children as the paramount consideration. We are client focused and believe in achieving the best possible outcome whilst minimising the associated legal costs that our clients incur.

Our personal and discrete services have attracted a diverse range of clients from different socio-economic backgrounds. Our past cases have ranged from legal aid matters to acting on behalf of high profile celebrities. We genuinely care about our clients and are focused on achieving the best possible outcome for them.

By offering a free initial half hour conference in either our Sydney or Parramatta offices, we are prepared to let you assess for yourself, at no obligation, if you would like one of our lawyers to act on your behalf. It is important you choose a lawyer you are comfortable with. Therefore, by meeting with one of our lawyers you can make your own judgment prior to making any financial commitment.

At Stuart Lawyers, we understand that separation is a stressful time for individuals and families. We also understand decisions that need to be made at this time are important and can have long term consequences. Accordingly, we recommend that parties who separate obtain independent legal advice as soon as possible to ensure that their entitlements are not endangered and so that an informed decision can be made.

We are aware of the difficulties encountered by people once a relationship breaks down. Therefore, if you wish to consult a lawyer, it is important to choose a lawyer you are comfortable with. As such, we offer a free initial half hour conference in all Family Law matters in either our Sydney or Parramatta offices. By attending at this free initial conference, you can assess for yourself at no obligation if you would like one of our lawyers to act on your behalf.

The first and most important step is for you to make contact with us.

After you have contacted us and provided some preliminary information, it is likely we will give you an outline of your legal rights over the phone and then make arrangements to see you in conference.

After you have conferred with us, it will then be necessary for you to decide if you want to instruct our firm to act on your behalf. If you want this to happen, it will be necessary for you to enter into a formal written costs agreement with our firm as required by the Legal Profession Act.

After we have been formally retained by you, we will take the required steps in accordance with your instructions. Different Court processes apply for different types of family law issues. We will provide specific advice to you after we know your individual circumstances. We can however say that in our experience, most matters settle out of Court.

Steps taken in a divorce

Identify the Date of Separation

In order to obtain a Divorce Order, it must be established that there has been an "irretrievable breakdown" of a marriage. To do this, the husband and wife must have lived separately and apart for a period of at least 12 months prior to filing the Application. In some circumstances, the husband and wife may "separate" but continue to reside under the one roof. In order to establish an irretrievable breakdown of the marriage, evidence will need to be produced to the Court to the extent that the marital relationship has broken down and that the parties have lived separate and independent lives during the relevant period.

An Application for Divorce is then filed in the Family Court of Australia or the Federal Magistrates Court of Australia

An Application for Divorce can be filed with the Family Court of Australia or the Federal Magistrates Court of Australia. At the time of lodging the Application, a filing fee is payable to the Court. In some cases, a filing fee does not have to be paid, for example if the Applicant holds certain concession cards, can demonstrate hardship, or is in receipt of a grant of Legal Aid.

The Application for Divorce then needs to be served upon your Estranged Spouse

Once the Application for Divorce has been filed with the Court, a copy of this filed document needs to be served upon the Respondent spouse. At the time of filing the Application for Divorce, the Court allocates a hearing date, which is normally around 6-10 weeks after the date of filing.

Hearing of Application for Divorce

The parties do not need to attend Court at the Hearing of the Application for Divorce unless there are children of the marriage who are under 18 years of age. If there are children under the age of 18, prior to granting the Divorce Order, the Court will want to be satisfied that proper and adequate arrangements have been made for the welfare of such children including as to their housing, education, health, contact and financial support arrangements. Upon being satisfied that all necessary requirements have been met, the Court will then grant a Divorce Order (known as a Decree Nisi) with such an Order becoming absolute and final (Decree Absolute) one month and one day later. A party cannot remarry until a Divorce Order becomes absolute.

One month after the Divorce Order is granted, the Marriage is Dissolved (known as Decree Absolute)

Once the Divorce Order becomes absolute, each party then has 12 months within which to bring an Application for property division and/or spouse maintenance before the Court. Thereafter, the parties will become statutorily barred from commencing such proceedings without the leave of the Court.

Regardless of whether the relationship in question is a marriage or one which is of a defacto nature, should that relationship break down, issues such as the following may arise:

• How property is to be divided between the couple who were in the defacto relationship;
• Arrangements in respect to any children of the relationship;
• Defacto spouse maintenance.

In determining appropriate parenting arrangements for children of a defacto relationship, the Court takes into consideration very similar principles to those considered by the Court for children of a marriage. Most importantly, the Court considers the child's best interests and welfare as the paramount consideration.

Pre-Action Procedures

Prior to the commencement of Court proceedings, each party is required under the Family Law Rules 2004 to exchange all relevant financial materials with their Estranged Spouse, a sworn Financial Statement, as well as Notices of Intention to Claim. The purpose of the Pre-Action Procedures is to ensure that parties attempt to resolve any financial dispute on an informed basis and through the early dispute resolution processes such as negotiation, counselling, Mediation or Arbitration, rather than embarking upon lengthy and costly Court proceedings.

Application to Court

Should the parties be unable to resolve the matter through the early dispute resolution process, either party can then commence Court proceedings seeking Orders for property division and/or spouse maintenance. An Application is filed with the Family Court of Australia or the Federal Magistrates Court of Australia together with a Financial Statement and a copy of the parties' Marriage Certificate. A filing fee is payable to the Court at that time. Upon the filing of the Application, the Court will list the matter for its first Court date approximately one month later (unless urgent Orders are necessary). Copies of the filed documents are then served upon the Respondent spouse.

Case Assessment Conference

On the first Court date, the matter is listed for a Case Assessment Conference which is conducted by a Registrar of the Court. At this Conference, the Registrar will note the issues in dispute between the parties, attempt to facilitate a settlement, and if there are no prospects of an early resolution, make Orders for the future conduct of the matter.

Conciliation Conference

The Registrar of the Court conducts the Conciliation Conference in his or her office. The parties are usually legally represented at this Conference, during which time the Registrar attempts to assist the parties reach an agreement as to all relevant issues. If an agreement is not reached, the Registrar will issue a Trial Notice setting out the further Orders necessary to prepare the matter for a Final Hearing. At that time, the Registrar will also allocate a date for a Pre-Trial Conference.

Pre-Trial Conference

Each party and their respective legal representatives attend the Pre-Trial Conference which is conducted by a Registrar of the Court. At that time, the Registrar will check if all previous Court Orders have been complied with by the parties and ensure that the matter is in a position to proceed to a Final Court Hearing. If so, the Registrar will allocate a date for Hearing of the case before a Judge or Federal Magistrate.

Final Hearing

The parties and their witnesses attend the Final Hearing to give evidence. At this stage of the proceedings the parties are usually represented by a Solicitor who instructs a Barrister. The Barrister for each party may cross-examine witnesses and make submissions to the Court on behalf of their respective clients. At the conclusion of the Hearing, the Judge will provide a Judgment and Orders as to division of property and/or the provision of spouse maintenance. It should be noted that at any stage of the Court proceedings up until the final Judgment, the parties can settle the matter if agreement is reached.

Pre-Action Procedures

Prior to the commencement of Court proceedings, the Family Law Rules 2004 require each party to provide full disclosure of all relevant issues and documentation concerning the care and welfare of the children of the relationship. Furthermore, the Rules require that the parties attend Family Dispute Resolution, incorporating counselling, Mediation and community education.

Application to the Court

Should the parties be unable to resolve all issues in dispute in relation to the care of the children, an Application is filed by either party with the Family Court of Australia or the Federal Magistrates Court of Australia. Should it be necessary to obtain urgent Orders from the Court, either party may file an Application seeking Interim Orders together with the Application seeking Final Orders. It is necessary for the party commencing the proceedings to file an Affidavit (which is akin to a formal statement) in support of the Application.

Case Assessment Conference

At this stage of the Court proceedings, the parties attend a Case Assessment Conference with a counsellor of the Family Court of Australia who discusses with the parties and their legal representatives the issues in dispute. The counsellor attempts to assist the parties in reaching agreement or at least narrowing the issues in dispute. Should they be unable to do so, the parties then confer with a Registrar of the Court who notes on the Court file the issues in dispute and enters Directions with respect to the further preparation of the matter.

Hearing of Interim Application (eg. to obtain urgent Orders)

Should it be necessary to obtain urgent Orders from the Court, for example if urgent access to a child is required, or with respect to the financial support one parent receives from the other, an Application seeking Interim Orders will be heard by the Court. At the conclusion of this Hearing, the Court will determine the Application brought and enter appropriate Interim Orders. These Orders will continue to be in effect until either fresh Interim Orders are entered or the Court has had the opportunity to hear the substantive matter in full and enter Final Orders. In most circumstances, the parties are represented by a Barrister at the Hearing of the Interim Application who is instructed by the Solicitor for each party.

Directions Hearing

At this stage of the proceedings, a Registrar of the Court will enter Orders for the preparation of the matter for Final Hearing, including as to the service of each party's up-to-date Affidavit evidence. Any other necessary Orders will be made by the Court at this time.

Counselling

Should the Court determine the parties would benefit from attending counselling in order to discuss the issues in dispute, the Court has the power to make such an Order. In such circumstances, the parties are obligated to attend counselling with a view to attempting to resolve their dispute. Should one party fail to attend counselling in accordance with a Court Order, the Court may take such conduct into account when determining the issue of costs (who is to pay some or all of the other party's legal costs).

Conciliation Conference - Notice Issued

At this stage of the proceedings, the parties attend the Court for a Conciliation Conference, during which time a Registrar of the Court discusses the issues in dispute with the parties and their legal representatives. The Registrar attempts to facilitate a resolution of the issues in dispute between the parties, failing which the Registrar will issue a Notice which contains the further Orders and Directions necessary to prepare the matter for Final Hearing, including Orders for the service of each party's Affidavit evidence and expert reports.

Pre-Trial Conference

At this stage of the proceedings, the Court will ascertain whether the parties have complied with previous Court Orders with respect to the preparation of the matter for Final Hearing. If they have, the Court will list the matter for Final Hearing, with the length of time allocated for the Hearing determined by the nature and extent of the issues in dispute, the number of witnesses to attend and give evidence, and all other relevant factors. If either party to the proceedings has failed to comply with past Court Orders, and is therefore not in a position to proceed to the Final Hearing, the Court will make further Orders about the matter and may enter a costs Order against the party in default.

Final Hearing

The matter is listed before a Judge or Federal Magistrate for Final Hearing. At this stage of the proceedings, the parties and their respective witnesses attend the Court and give evidence. Each party is usually represented by a Barrister who is instructed by a Solicitor. At the conclusion of the Hearing, the Court will enter Orders as to all relevant parenting and/or maintenance issues. The Court will also enter an Order for payment of costs (in most circumstances each party is ordered to pay his or her own costs of the proceedings).

Since the amendments to the Family Law Act 1975 introduced in the year 2000, appropriate recognition has been given to Binding Financial Agreements. However the Court continues to have ultimate jurisdiction to determine whether or not the terms of such Agreements should be binding. Financial Agreements can be entered into before marriage, during marriage or after divorce.

Binding Financial Agreements provide for how assets, resources and liabilities will be divided between the parties if a marriage or defacto relationship subsequently breaks down. Financial Agreements can deal with property, financial resources and/or spouse maintenance of the parties or matters incidental to those issues.

Parties enter into Financial Agreements with different intentions, including the following:

• To protect assets which may be inherited during a relationship;
• To protect the assets of one party where there is a significant difference in the wealth of the parties;
• For subsequent marriages, such an Agreement can protect prior assets and ensure that children of previous relationships inherit those prior assets;
• To protect the rights of a party who wants the certainty afforded in a formal agreement rather than face the discretion available to the Courts under the Family Law Act 1975 (subject of course to the Court's ultimate discretion);
• To protect assets which have been in a family for generations.

The Court may make an Order setting aside a Financial Agreement if the Court is satisfied that:

• The Agreement was obtained by fraud (including non-disclosure of a material matter); or
• Either party to the Agreement entered into the Agreement for the purpose of defrauding or defeating a creditor or creditors of the party; or
• Either party to the Agreement entered into the Agreement with reckless disregard to the interest of a creditor or creditors of the party; or
• The Agreement is void, voidable or unenforceable; or
• In the circumstances that have arisen since the Agreement was made it is impracticable for the Agreement or a part of the Agreement to be carried out; or
• Since the making of the Agreement, a material change in circumstances has occurred (being circumstances relating to the care, welfare and development of a child of the relationship) and, as a result of the change, the child or if the Applicant has caring responsibility for the child, a party to the Agreement will suffer hardship if the Court does not set the Agreement aside; or
• A party to the Agreement engaged in conduct that was, in all the circumstances, unconscionable; or
• The Agreement covers at least one superannuation interest that is an unsplittable interest.

The Financial Agreement must include a statement to the effect that before the Agreement was signed by both parties, they each received independent legal advice by separate legal practitioners, including as to the effect of the Agreement on the rights of that party and if it was to the advantage or disadvantage of that party to enter into the Agreement at that time. The Financial Agreement must contain Certificates signed by the solicitor for each party providing that the solicitors gave independent legal advice to each respective party.