Family Law, Divorce & Separation

Western Sydney Family Lawyes

Bardo Lawyers is an Australian family law firm which employs experienced family lawyers in Melbourne who are equipped to provide you with assistance with a range of matters relating to family law and de facto relationships. We are an empathetic, down to earth, and efficient family law team with expertise in every area of family and relationship law, including property settlements, parenting and custody, divorce, maintenance, child support and international family law.

If you are looking for Divorce Lawyers in Melbourne, give us a call today or make an appointment online.

The Melbourne FAMILY LAW and SEPERATION Team

We have a wealth of experience in navigating complex family law related financial issues. Our family lawyers can help you achieve a financially sensible outcome that is cost effective and results driven.

With our proficient guidance, representation and advice, many of our clients are capable of achieving timely settlements through mediation, evading the stress, delay and expense of family law court proceedings. You will have the advantage of our firm’s all-encompassing experience and knowledge in understanding when it is effective to litigate in court and when is best to settle out of court.

Our Melbourne family lawyers understand that family law is both emotionally complex and challenging. If you want the best family lawyers in Melbourne, get in touch with our family law team. For the best possible legal advice, contact our team of family lawyers.

Our family law team have years of expertise to deal with any family law issue that may arise. In family law, each person’s situation is different. We tailor our advice to your needs, expectations and goals to ensure the best possible outcome for you. Our experience means we can solve most family law issues by agreement. When an agreement is not possible, we deliver strong and proficient representation in the Federal Circuit and Family Court of Australia.

AREAS OF FAMILY LAW WE COVER

Our Family Law team can assist you in the following areas:

Marriage, De Facto, Separation and Divorce Law

  • Property settlements
  • Binding Financial Agreements
  • Divorce
  • Spousal maintenance
  • Legal representation in the Federal Circuit and Family Court of Australia
  • Separation issues
  • Family violence and intervention violence orders (IVOs)
  • Superannuation division
  • Prenuptial agreements (prenup’s)
  • Taxation issues arising from separation

Parenting, Children and Custody issues

  • Child support
  • Binding Child Support Agreements
  • Parenting plans for child custody and visitation
  • Parental rights
  • Guardianship of children
  • International child abduction
  • Adoption
  • Children’s Court
  • Mediation
  • Same-sex parenting
  • Relocation and unlawful removal of children

DIVORCE LAWYERS MELBOURNE

There are numerous reasons why people want to divorce. While each scenario is different and possesses its own collection of circumstances, there are reasons that are more common than others, such as:

  • Not marrying for the right reasons
  • No commitment
  • Not being faithful
  • Behaviour is abusive/violent
  • Money

You can apply for a divorce 12 months from the date you and your partner separate. Only one party needs to want the divorce and you can apply either jointly or separately. Your ex-partner cannot oppose a request for divorce, except under specific circumstances.

Some married couples choose to continue living together under the same roof. You can still apply for a divorce while you are still living together with your former spouse.

On the other hand, you do not have to wait until you are divorced to settle financial matters and arrange custody and support for your children. If you want to file for divorce, we can assist you.

DIVORCE WITHIN TWO YEARS OF MARRIAGE

If you wish to file a divorce within two years of being married, there are two avenues available under section 44(1B) of the Family Law Act.

The Court will not grant you a divorce order unless you have filed a certificate with your application for divorce to the effect that you and your spouse have considered reconciliation with the assistance of a specified person.

The filed certificate must be signed on behalf of the organisation or individual that has assisted you with reconciliation. An exception to the above certificate pathway is that you obtain the leave of the court under section 44(1C) of the Family Law Act if there are special circumstances.

DIVORCE AFTER TWO YEARS OF MARRIAGE

Under section 48 of the Family Law Act, the court will make an order for a divorce if the marriage has broken down irretrievably and the parties have separated such that they have lived separately and apart for a period of 12 months before filing an application for divorce.

It should be noted that parties may nevertheless be deemed to have separated despite living in the same residence or a party has rendered some household service to the other. In this scenario, to determine whether the parties have separated, the Court will usually examine the marital relationship before and after separation. If the parties’ martial relationship before and after separation remains substantially the same, for instance the wife continues to cook for the husband, the husband continues to clean the house and or the parties have maintained a sexual relationship, it is unlikely that the court will be satisfied that separation has in fact occurred.

Further, it is strongly emphasised that even if the parties have been separated for twelve months and have satisfied the above mentioned requirements, should the court believe that there is a reasonable likelihood of the parties resuming cohabitation, the court will not grant a divorce.

DIVORCE AND CHILDREN

A divorce order does not take effect unless the court has declared that it is satisfied that either:

  1. There are no children of the marriage under the age of 18; or
  2. The children of the marriage under the age of 18 have been specified in the divorce order and proper arrangements have been made for their care, welfare or development; or
  3. Even though arrangements have not been made for the care, welfare or development of the children aged under 18, there are circumstances present that justify a divorce order being made.
 
Notwithstanding the above, if the court is not satisfied that proper arrangements have been made for the care, welfare and development of children under the age of 18, the court may adjourn proceedings until a family consultant has provided the court with a report addressing the arrangements.

 

THE DIVORCE ORDER

A divorce order usually takes is made one month and one day after the order has been made by the Court. This means that it is made one month and one day after the Application for Divorce is heard by the Court.

TIME LIMITS ON PROPERTY OR MAINTENANCE APPLICATIONS

After a divorce order has been made by the Court, there is a one (1) year time limit for bringing property proceedings. This one-year time limit does not apply where both parties have consented that it should not apply or when the court has granted leave for proceedings to be brought after the expiration of the time limit, because of hardship or the court not exercising its discretion would be unjust.

The type of hardship recognised is hardship caused to a party to the marriage or a child if leave of the court was not granted, or, in maintenance proceedings, the circumstances of the applicant are such that he or she would not be able to support him or herself without an income tested pension, allowance or benefit.

While you can manage your divorce procedures with the aid of online kits and online resource information, using a DIY divorce kit can be complicated. Australian divorce laws can get perplexing, and if things get confusing, it is more difficult to go back and hire a divorce lawyer to assist than not engaging a family lawyer one from the beginning.

Some useful links on divorce are as follows:
https://www.fcfcoa.gov.au/fl/hdi/apply-for-divorce

 

CHILD CUSTODY LAWYERS MELBOURNE

At Bardo Lawyers, our child custody lawyers possess the resources, knowledge, and expertise to advise on the best way to protect the children and your time with the children.

If you separate and you have children, the first priority is to set up living arrangements for your children. The parenting arrangements should be in the best interest of the children. Our family law team can assist you in reaching an agreement with the other parent about parenting issues.

There is no typical child custody arrangement. Usually, a child lives primarily with one parent and then spends time with the other parent. There are arrangements in which a child spends the same amount of time with each parent. Various arrangements work for various families.

If you and your partner come to an agreement, we can formalise the arrangements by making an application to the Federal Circuit and Family Court of Australia without you ever going to court. Court orders are not needed for every couple.
Grandparents, or others who are important people in the lives of your children, may want to be sure that they can continue to visit or see their grandchildren after a separation or divorce.

If you and the other parent are unable to come to an agreement about parenting arrangements, or if there are crucial issues that have to be addressed, court proceedings may be necessary. We can appear for you at court and guide you during the whole, sometimes complex, process.

When it comes to parenting arrangements, the Family Law Act sets down the following principles:

(a) All children have a right to know both parents and to have a meaningful relationship with both parents.
(b) All children have a right to be protected from harm (from physical, psychological abuse harm and being subjected to family violence).
(c) Parenting is a responsibility that should be shared equally provided this does not put children at risk.
(d) Parents should be able to work out together what is best for children rather than fighting in a courtroom.
(e) The best interests of the child are the paramount consideration when making a parenting order.

When the Court is required to make Orders for children, the Court will take into account the followings:

  1. The aim of the Family Law Act (Section 60B);
  2. The children’s best interests (Section 60CA); and
  3. A number of specified factors set out in (Section 60CC).

Some useful links as follows:
https://www.fcfcoa.gov.au/fl/children/overview

https://www.fcfcoa.gov.au/fl/children/relocation-travel

CHILD SUPPORT

Post separation, you are entitled to apply to the Child Support Agency which is within the Department of Human and Health Services. You can do so by going to your local Centrelink office or by calling 131 272. The Agency will undergo your assessment and will inform you of the outcome. From there you will either be required to pay child support or receive child support payments. It is recommended that you open a myGov account to monitor child support payments.

Please note that you can apply to have an administrative assessment that considers retrospective child support payment. You may claim up to 18 months of retrospective child support payment. A Court, on the other hand can extend the maximum period of the retrospective operation of any variation of any departure order to a period of 7 years.

It is imperative that you read very carefully all correspondence that you receive from the Child Support Agency. As soon as you receive an administrative assessment or decision, contact our office immediately to obtain legal advice as there are strict timelines in place in the event we need to make an application to either the Social Security Appeals Tribunal or a Court.

Please note Section 159 of the Child Support Act states that it is an offence punishable by fine or imprisonment to provide the Child Support Agency with false or misleading or incomplete financial information.

Seeking Further Child Support Payments

There are times though when the child support assessment does not reflect a child’s unusual and additional needs. In these circumstances the first step is to make an application to the Child Support Agency for an administrative assessment. This must be done regardless of which of the options below are employed.

Option 1:

After the administrative assessment, if either parent objects to the assessment, they then need to use the administrative departure process under Part 6A of the Child Support (Assessment) Act 1989. The form to be used for the administrative departure process is the Application to Change Your Assessment – Special Circumstances form. Once the Department of Human Services decides on that application, either party may then seek a review of that decision from the Social Security Appeals Tribunal (SSAT). Appeals from the SSAT decision are then directed to the Court on a question of law.

Option 2:

If the parties already have proceedings on foot in the Family Court of Australia or the Federal Circuit Court of Australia for property, parenting, or spousal maintenance, then either party may be able to apply to the court to make a departure order. The court needs to be satisfied that it would be in the interests of the payer and payee to consider the matters together. This option may only be used if there are proceedings before a Court.

Child Support Agreements
Parties may come to an agreement between themselves in relation to child support payments. Agreements can include provision for payment of periodic amounts, lump sum payments and non-periodic payments such as school fees and health insurance.

Binding Child Support Agreements
A binding child support agreement can be made whether or not a child support assessment is in place and can be for any amount that you and the other parent agree upon. The payment can include periodic and non-periodic items. Both you and your former partner will need to obtain independent legal advice before entering into a binding child support agreement or a termination agreement terminating a binding child support agreement.

If you wish to terminate the agreement early and your former partner does not consent then an application can be made to the court to have the agreement set aside, however these applications can be costly and complex.

Limited Child Support Agreements

In Order to have a limited child support agreement, there must be a child support assessment in place and the child support payment under the agreement must be the same or more than the amount payable under the assessment. The payment can include periodic and non-periodic items. The parties do not require independent legal advice to enter into a limited child support agreement.

Some useful links on child support are as follows:

Child Support Calculatorhttps://processing.csa.gov.au/estimator/About.aspx

https://childsupportaustralia.com/how-calculated/

https://www.servicesaustralia.gov.au/individuals/child-support

PROPERTY SETTLEMENT, PROPERTY DIVISION and FINAL PROPERTY ORDERS

 In all property settlements, the Court takes a 4 step approach in dividing the assets of the parties. These assets include:

  • Real property
  • Real estate
  • Investment properties
  • Savings
  • Inheritance
  • Companies
  • Cars
  • Shares
  • Superannuation
  • Caravans
  • Boats
  • Jetskis
  • Tools
  • Any other asset defined as property

Step 1- INDENTIFYING THE ASSET POOL

The first step is to identify the net asset pool that you shared in your relationship. This includes personal assets and liabilities that may have been brought in prior or during the relationship. It is essential that you disclose all of your assets and liabilities to us as a failure to do so may result in finding you in contempt of court. If you unsure whether something is an asset or liability, disclose it anyway and we will make a determination for you.

Special contributions are also included in the calculation of the asset pool. These include:

  • Inheritances;
  • Gifts; and
  • Compensation payments.

Liabilities include, but are not limited to:

  • Mortgages
  • Loans (including loans from friends or family)
  • Credit card payments

Once the total value of liabilities has been deducted from the total asset pool, the net asset pool is determined. If both parties cannot agree on the value of a particular asset, a third party expert will be brought in to assess and provide a value for a particular asset.

Step 2 – Determining each party’s contributions

The second stage is where the court determines how much each party has contributed to the net asset pool found in stage 1 and any additional contributions made by each party. Financial, non-financial and homemaker contributions are assessed in determining how much of a contribution each party has made.

It is important to note that the longer the marriage, the more likely a court will find equal contributions have been made regardless of actual contributions. This is in contrast to short marriages (less than 5 years) which are more likely to give weight to actual contributions made.

Financial contributions are inclusive of all monetary contributions to the relationship. These are things such as your salary and wages, contributions to mortgages and loans and paying bills.

Non-financial contributions are contributions which have been made by a party which has increased the value to something or of monetary worth. For example, increasing the value of something may have been renovations you made to your family home, which in turn, increased the value of your home. Something of monetary worth may include things like working in the family business without pay.

Homemaker contributions are contributions made by either party to the family home and/or parenting contributions. Contributions to the family home include but not limited to cleaning and cooking. Parenting contributions include the caring of any children of the relationship by taking them to school, helping with homework, taking them to sporting activities etc. This is a significant factor particularly where one party has sacrificed working to take up the full time caring and maintenance of the home and children. 

The court will then make a determination as to how much each party has contributed to the relationship in a percentage value.

Note: prospects of inheritance are not usually relevant.

Step 3 – Future Needs

In the third stage, the court will assess any future needs a party may have which would mean one party will be granted more of the assets to compensate for any future need.

For example, a party who has made significant homemaker contributions and therefore is unable to find immediate work as a result of being out of the workforce may see greater loading awarded to them.

The primary caregiver of any children will also determine how much each party receives. A parent with sole or majority of the care of a child under the age of 18 may see greater loadings awarded to them as they are unable to work as much as the other parent.

Factors such as age, health and disabilities of either party will also be considered when making an assessment for future need. A court will then divide the net asset pool in a percentage figure to reflect both the contributions and any future needs of each party.

Step 4 – Just and equitable.

Finally, once the percentages have been determined, a court will holistically assess whether the finding is one that is just and equitable to both parties. A court will, however, assess whether the finding is just and equitable at the end of each step in the process.

The division of asset is divided by way of a percentage split rather than dollar figures. We will endeavour to provide you with a range of the likely division of your assets and might need to amend our advice from time to time. Nonetheless, we will keep you well informed throughout the process.

Some useful links on property settlement are as follows:

Do it yourself Kit – property settlement

https://www.fcfcoa.gov.au/resources/forms

https://www.fcfcoa.gov.au/fl/hdi/apply-property-and-financial-orders 

SPOUSAL MAINTENANCE

Depending on your circumstances, you may be able to apply to the Court for Spousal Maintenance.

When Can You Apply

The court has power to make a spousal maintenance order that it considers proper. There is a one (1) year time limit on applying for a spousal maintenance order. There are exceptions in which you can apply for spousal maintenance outside of the time limit.

Types of Orders

After separation, there will be two avenues available to you, depending on your circumstances. You may be able to apply for an urgent maintenance order, if you are in immediate need of financial assistance. Although the Family Law Act does not define ‘immediate need for financial assistance’ urgent maintenance orders are designed to deal with ‘urgent situations’. They are normally relevant for a defined period of time and they are in the nature of stop-gap orders. The benefit of this avenue is that orders can be made ex parte, namely without the presence of your ex-partner.

Under section 80(1)(h) of the Family Law Act, you may be able to apply for an interim maintenance order until a further order has been made by the court.

Criteria for Spousal Maintenance

To be eligible for spousal maintenance, you must demonstrate that:

(1) you are unable to adequately support yourself; and

(2) your ex-partner has capacity to pay, such that he or she can support you.

In determining whether you are unable to support yourself adequately, the court will have regard to the following:

  1. Whether you care for and have in your control a child of the marriage under the age of 18;
  2. Your age and your physical or mental capacity for gainful employment; or
  3. Any other adequate reason.
 

The court has generally held that a party does not need to ‘exhaust his or her modest capital before applying for maintenance’. This means that you may apply for spousal maintenance orders even though you have assets or income available. If property orders have been made and you have been provided with assets from the property pool, you may nevertheless be eligible for spousal maintenance, depending on the factors in section 75(2) of the Family Law Act. It should also be noted there is no requirement that the party’s pre-separation living standard be maintained after separation.

In addition to the factors under section 75(2) of the Family Law Act, in determining whether the other party (ex-partner) is able to support you, the court will take into consideration the other party’s income and his or her reasonable living expenses.

The court is also required to consider whether any of the factors under section 75(2) are applicable to your case. Some of the considerations are as follows:

  • s 75(2)(a): The age and state of health of each of the parties;
  • s 75(2)(b): The income property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
  • 75(2)(c): Whether either party has the care or control of a child of the marriage who has not attained the age of 18;
  • s 75(2)(j): The extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
  • s 75(2)(k): The duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
  • s 75(2)(o): Any fact or circumstance, which, in the opinion of the court, the justice of the case requires to be taken into account;

 

Orders

The court has power under section 80 of the Family Law Act to make orders such as ordering a lump sum payment[1] or requiring payment of a weekly, monthly, yearly or other periodic sum. The full list of orders available to the Court are under section 80(1).

Your Duty of Disclosure

People involved in family law or de facto matters have a duty to disclose all information and documents that are relevant to their case, and which are (or have been) in their possession or which they have the authority or ability to obtain.

The duty of disclosure starts from the time that you first commence negotiations until your family law matter is finalised, regardless of whether there are court proceedings on foot.

The Duty of disclosure brochure gives information about what documents are relevant. If you are not sure if a document is or is not relevant, contact us and we can advise you if a document is relevant. When you provide us with the relevant documents, we will provide a copy to the other party or their lawyer.

In summary:

  1. You have a duty to provide full and frank disclosure of all information relevant to your financial circumstances and the matrimonial property

  1. This duty commences immediately and continues until the matter is resolved on a final basis;
  1. This means you are required to disclose to the other party (via solicitors) information including but not limited to any changes to your income, disposal of assets by way of sale, gift, transfer or other means, increases in liabilities and any other changes, for example, receipt of inheritances, receipt of lottery or other windfalls, losses of significant sums of money;
  1. In addition to disclosing information, you need to provide copies of documents relating to your financial circumstances. The Federal Circuit Court Rules 2001 and the Family Law Rules 2004 both provide obligations for discovery in financial and parenting matters. There are both general provisions for discovery and specific discovery required prior to court dates. Initially, we ask that you provide us with the following documents:
 
    1. Copies of your tax returns and notices of assessment for the past three financial years;
    2. Copies of superannuation member statements for each superannuation interest in your name;
    3. If you have an interest in a self-managed superannuation fund, a copy of the trust deed for that fund and copies of the financial statements and tax returns for the funds for the past three years;
    4. If you have an interest in a partnership, a copy of that partnership deed and financial statements and tax returns for that partnership for the past three years;
    5. If you have an interest in a publicly listed company, copies of the share statements relating to each of those interests for the past 12 months;
    6. If you have an interest in a company which is not publicly listed, a copy of the company’s constitution, and a copy of the financial statements and tax returns for that company for the past three financial years;
    7. If you have an interest in a trust by way of beneficiary entitlement or are a trustee or appointor, a copy of the trust deed and a copies of the financial statements and tax returns for that trust for the past 12 months;
    8. If you have disposed of property in the 12 months preceding separation or since separation, documents evidencing that disposal;
    9. If you receive a wage or salary payment, copies of your three most recent payslips;
    10. If you otherwise own or control a business, copies of the business activity statements for that business for the past 12 months;
    11. Copies of bank statements for each bank account held in your name or in which you have an interest for the past 12 months; and
    12. Copies of the bank statements for any loans held on properties for the past 12 months (if you have the capacity to obtain or hold these documents).

If you fail to comply with your obligation to provide disclosure, there are potential consequences of this non-disclosure:

A.   Any final court order or agreement can later be set aside or overturned; and
B.   The court has the power to exclude the evidence that has not been disclosed, dismiss your case, make a costs order against you or find you guilty of contempt of court and impose further penalties.

If you have any questions or concerns in relation to this duty of disclosure you should contact us so that we can discuss the issue and provide you with specific advice.