Frequently Asked Questions
Firstly, you and your (ex) partner would need to arrange a property settlement, in terms of orders by consent, or a Financial Agreement. This is the document that the bank needs to see, to show them that you have binding and enforceable terms relating to the transfer of title and payment of money, and also so they can see that you will qualify for the exemption of stamp duty.
It is not a ‘letter from a lawyer’, but documents that both parties have signed off on, and made in final and binding terms. The stamp duty exemption on transfers of property between separated couples only applies if there is evidence of family court orders made, or a Financial Agreement entered into between the parties.
Secondly, you take the finalised consent orders or Financial Agreement to the bank, and arrange for the settlement of the transfer of title and payment in exchange. That part is basically a conveyancing process, just as if you were selling a house, except that the parties are you and your ex partner, and the ‘contract’ is the family law agreement reached between you.
To start the process, we suggest you start with an consultation where we can review the details of your settlement, and explain these procedures in more detail. Then we are able to advise you about the costs and steps involved in drawing up terms of settlement, which would be sent to your ex partner, for them to review with their own solicitor. If agreed, they then would then have to sign the terms and return them for you to sign.
This is a difficult question to answer, as legal matters vary in their complexity and the scope of the dispute, and of course this changes as the case progresses. Sometimes matters become more complex, sometimes (hopefully) they settle early and the cost of the case is limited because of sensible decisions and cooperation between the parties. These factors are hard to predict.
You will be charged for the solicitor’s legal services, at an hourly rate, and non-legal services (such as paralegal and clerical work) will be charged at a lower rate. You may also incur specific costs, such as filing fees, agent’s fees (for example – process servers), and search costs.
Your costs will be detailed in invoices, which will be issued regularly as the matter progresses, so that you can keep track of costs, and be fully informed about what work is done and how it is charged. We do not want you kept in the dark, or take you by surprise with unexpected costs or large bills at the end of the matter. Your legal costs can be expensive, and your concerns about costs are a factor in your decision-making. We encourage an open dialogue with our clients on costs, as well as all other aspects of your case.
We will provide you with a regular summary of costs incurred, and explain in detail the future anticipated costs, at each stage of the process, and before new steps are taken.
We encourage you to review your invoices in detail, and to raise any queries at any time.
Your understanding of your legal costs is an important aspect of your satisfaction in legal matters, and you need this information to make cost-effective decisions about the running of your case, and to maintain confidence in our services.
At Galloway Family Law, we can assure you that we will assist you to consider cost effective options for finalising your case, and to take all reasonable opportunities to settle matters by consent. This includes using alternative dispute resolution processes, and ‘thinking outside the box’ about settlement options.
In general, if a dispute is resolved quickly and through negotiation, costs will be less than if the matter proceeds to a hearing in court. Our aim is to give clients regular accurate advice about the process, the likely outcomes, the consequences of litigating and what each step is likely to cost them. Clients can then make their own decision about how they want to run their case.
The first consultation is very important. It enables us to talk to you to understand what it is important to you, and how far along you have gone through the separation process.
We can obtain complete details regarding your circumstances, which will assist us to give you specific and tailored advice about things such as likely outcomes, assessing your priorities, timeframes, the legal process, whether any urgent action is required and estimated costs.
It will assist us if you are able to bring with you:
- your own summary of the history and your thoughts about what you want out of the legal process
- a copy of any agreements or orders that have already been made
- in financial matters, a summary of your assets, liabilities, and superannuation of you and your spouse (being a description of these assets/debts/super, and the current value).
No. In many cases, parties reach an agreement without the assistance of the court. There are alternatives to commencing proceedings in court and these include mediation, conciliation, counselling and conferencing.
However, it is important that any agreement is properly formalised, and that you give thought to what details should be included in the agreement, and what areas are likely to give rise to possible conflict in the future, so we can include provisions about all these matters.
Yes, you can apply to the Court for both Interim and Final Parenting Orders following separation and if you both agree, the Court can make Orders by consent to formalise the situation.
A common question that arises is – ‘do I have to apply for parenting orders?’ Often people have an outdated understanding of family law, as in years gone by, a custody order would be made as a matter of course, typically at the time of divorce, giving all parental rights to one parent (often the mother) over the other parent. The law has changed substantially over the years, and the current Family Law Act is a long way from these attitudes.
These days, family law does not require parents to apply for orders, and actively discourages legal proceedings, except in cases of risk to a child, or urgency if a child has been removed. The law directs parties into mediation before applying to the court.
If you are worried that a parent may try to abduct a child, you need advice on how to prevent this, and what legal action you can take for recovery if that occurs.
Yes. You can resolve your family property matters after separation by agreement, either in the form of Consent Orders or a Financial Agreement.
This can, and commonly does, occur before a divorce application is made. Divorce only arises for married couples. You can apply for a divorce after 12 months of separation, but you do not need to apply. Many separated couples never obtain a divorce.
If you can resolve matters by consent, you do not need to apply to the court. However, if you cannot reach an agreement, your time for filing an application to the court for property adjustment orders will expire – in the case of married couples, 12 months after a final divorce order is made, and in the case of de facto couples, 2 years after the relationship broke down.
Each case is different and is determined by its own facts. The Court will determine the property division based on contributions (financial and non-financial, including homemaking contributions), across the whole relationship (before, during and post-separation). The court will then also consider the future financial resources and future needs of both parties, and also the overall justice and fairness of a property adjustment in all the circumstances.
The court then gives weight to these contributions and the particular facts and circumstances of the relationship, and decides on a fair proportion of property adjustment between the parties, in light of these factors.
However, the court may not necessarily make an adjustment at all – for example, in cases of a short relationship, or where contributions were significant on one side and minimal on the other side.
Disputes can arise on specific aspects of each case, or there can be a wide number of issues in dispute. Your lawyer can assist by identifying the issues in dispute, and prioritising these issues, and how they fit into settlement options.
Some issues in dispute can be factual – for example, the value of an asset (which can be resolved by obtaining an independent expert valuation), or whether an asset exists (which can be resolved by ‘discovery’ and financial disclosure procedures, with or without court action).
Some aspects of the dispute can be legal issues – for example, as to the weight that would be given to certain contributions in the particular facts of the case, or whether an asset should be included or excluded from the asset pool (and here the parties will need to be guided by legal advice as to likely court outcomes, based on earlier court judgements).
While the Principal Solicitor, Lee Galloway, has an extensive background in legal aid work for many years (as former head of the Family Law Section of the Legal Aid Office ACT, and former Executive Officer for National Legal Aid), in private practice, we do not do legal aid, as we are a private law firm.
Yes, and more.
We can assist you with a range of legal services relating to your property, your estate and “later in life” situations – including wills, powers of attorney, enduring powers of attorney, and Assisted Care Decisions.
We also provide specialist help in increasingly complex matters affecting the elderly, such as residential care agreements and lump sum accommodation payments.
You do not have to take any specific legal steps.
However, we find that people find reassurance by discussing their concerns with a solicitor, to learn about options for settlement and ways through the typical issues that arise on separation.
You are in a better position to make decisions and to keep conflict under control, if you understand your rights, obligations and entitlements.
If there is a fear that one party may remove the child from the other, or if the child has actually been removed, an urgent kind of parenting order (called a ‘recovery order’) can be obtained from the Court to prevent the child from being taken away, to have the child returned or to locate the child. This is important if there is a possibility that the child may be taken overseas.
At Galloway Family Law we are highly skilled and can respond quickly in these situations, due to our familiarity and specialization in these court procedures.
Under the Family Law Act 1975, both parents automatically have rights and obligations to make major decisions affecting a child’s long-term care, welfare and development. This is called ‘parental responsibility’.
It deals with issues such as the child’s long-term education (such as decisions about school enrolment), and health (such as having a surgical procedure).
Both parents are obligated under the Act to consult with each other about these matters and to make decisions jointly. This obligation does not need a court order, and the court is not necessarily involved in these matters unless specific orders are sought about parental responsibility or aspects of it.
The court’s primary objective is to make parenting orders that are in the best interests of the children, despite the apparent conflict with the wishes or the interests of either of the parents or children.
The court can make a wide range of parenting orders, including orders about ‘parental responsibility’, or whom a child lives with, or what time they spend with a parent.
If a court makes a ‘live with’ or ‘time spent’ order, it does not affect other responsibilities that parents have in making decisions about children including medical, dental and educational matters.
On the other hand, if an order is made for a child to live with or spend time with a parent, that parent can make all day to day decisions concerning the child that are necessary for their care of the child, without needing to consult with the other parent (for example, decisions about the child’s bedtime, and food, or how they spend their day). Also, the family law act provides that no one can interfere with a parent’s time with a child, or prevent the child from living with or spending time with that parent under the terms of a court order.
Parenting laws state that the welfare of the child is of paramount importance. If both parties cannot agree, a Judge will make a decision after considering all the relevant factors. In some cases the Court can require that the children be separately represented by their own solicitor.
In most cases, even after a court case has commenced, parents will reach consent and finalise the case by way of consent orders. This will often occur based on recommendations of court experts, including family consultants following the issue of a report or memorandum. In those cases, the court will still consider if the proposed consent orders are in the child’s interests, but will usually make the orders sought by consent. Orders made by consent are legally binding and enforceable, just as if the case had been decided by a Judge following a defended hearing.
By law, both parents are required to support their child financially. In some cases this may involve one parent paying a child support payment to the other, to help with the costs of raising a child.
Child support laws in Australia allow for children with separated parents to be covered by the Child Support scheme, administered by the Child Support Agency. The scheme uses a formula, based on the income of both parents, the costs of raising children, the number of dependent children that each parent has, the number of children covered by the assessment, and the proportion of care that each parent provides for the children.
There are a number of steps that can be taken to dispute child support payments.
In some cases, the proper remedy is to lodge an objection to the Agency. There are time limits applying to objections, which you should note carefully in the letter setting out the Agency’s decision or assessment.
In other cases, if a parent believes the current child support payments are unfair, he or she can apply to the Child Support Agency (or in some limited cases, directly to the court) for a change of assessment review in ‘special circumstances’.
There are a number of specific and limited grounds for seeking a change of assessment – including:
- that the parent has significant personal expenses or commitments (such as loan repayments) which affect their capacity to pay child support at the assessed rate, or
- the child has significant costs of their care or training or education (such as private school fees), or
- the parent has high costs of child care, or
- the parent has high costs of contact travel, or
- the parent has a commitment to maintain a step-child
- the other parent has income or assets or financial resources that are not properly reflected in the child support assessment.
If the Agency makes a decision which again is not favourable to the parent, further steps can be taken to have that decision reviewed.
Changing child support decisions can be complex. We have significant experience in child support matters, both through court action and CSA procedures, and can assist you to navigate these matters.
Parents can make their own arrangements, either informally, or in a written agreement called a Child Support Agreement.
A Child Support Agreement, which is properly prepared and signed, is able to be enforced if one parent does not comply with it.
There are two types of Child Support Agreement:
- a limited child support agreement will only be given effect for a limited time and does not require a certificate of independent legal advice. The Agreement can be overturned if a parent applies for a provisional assessment, and the rate under the agreement varies widely from the provisional assessment.
- A Binding Child Support Agreement is final and binding and can only be set aside by court order in very limited circumstances (or unless the parties agree to set it aside). This Agreement also requires parties to obtain and provide a certificate of independent legal advice as to the terms of the Agreement. This Agreement may not be approved if the payee is a government pension benefit recipient.