Family Law

Going through a divorce can be a difficult time for all involved with emotions and stress often running high. Understanding the process of divorce and the required initial steps can be overwhelming.

At Johnstone Crouse Lawyers we have an in-depth understanding of the process and challenges involved, and can help guide you through your divorce.

What is the divorce process in Western Australia?

The Family Law Act 1975 (Cth) is the relevant legislation that applies to marriages relationships throughout Australia.

Divorce only deals with the ending of a marriage. Parenting arrangements and property matters are dealt with by the Family Court separately. Please see Child Custody and Parenting Arrangements and Property Settlement for more information on these areas.

In Australia we have a no-fault divorce jurisdiction. This means that the Family Court does not consider why the marriage ended.

In brief terms, the main steps to obtaining a divorce are:

Step 1 – Separation

• you must be separated from your partner for at least 12 months; and
• you can be separated under the same roof.

Step 2 – Prepare your Documents

• copy of marriage certificate;
• if you were married overseas and your marriage certificate is not in English, you must obtain an English translation;
• if you were married for less than 2 years, you must attend counselling and obtain a counselling certificate; and
• if you were separated but continued living together (i.e., separation under one roof) you must submit evidence of your separation.

Step 3 – Complete and File your Application for Divorce

• the Application for Divorce can be completed on the eCourts Portal of Western Australia either jointly or solely;
• if you have children under the age of 18, you must inform the Family Court that there are arrangements in place for their care;
• you must sign you application and the Affidavit of eFiling before a Justice of the Peace or Lawyer; and
• you must select a date and time for the divorce hearing.

Step 4 – Serve the Application on your partner

• if you have filed a sole application, and your partner is in Australia, you must serve a copy of your application, the Marriage and Families and Separation brochure at least 28 days before the hearing;
• if you have filed a sole application, and your partner is overseas, you must serve a copy of your application, the Marriage and Families and Separation brochure at least 42 days before the hearing;
• you must file an Affidavit of Service to prove that your partner has received your application; and
• if you have filed a joint application, you do not need to serve the application.

Step 5 – Divorce Hearing

• at the divorce hearing the Registrar determines if your marriage has irrevocably broken down and if the parties have been separated for at least 12 months prior to the application;
• if you have children under the age of 18 or made a sole application, you must attend the hearing; and
• if you have children under the age of 18 and made a joint application, you do not need to attend the hearing.

Step 6 – Divorce Granted

• if your divorce is granted at the divorce hearing, it will become official one month and one day after the divorce hearing;
• your Divorce Order will be made available on the eCourts Portal; and
• between your divorce hearing and your divorce becoming official, you are not permitted to legally marry another person.

Contact us to discuss your divorce application with one of our highly qualified lawyers.

Can I oppose or contest my divorce?

There are two primary ways to oppose a divorce. You can oppose a divorce if:

• the separation date is in dispute and is less than 12-months; or
• the Court does not have jurisdiction.

Outside of this, there are limited circumstances in which you can challenge a divorce application.

To oppose a divorce, you will need to complete a Response to Divorce within 28 days of the application being served on you. You will also need to attend the divorce hearing. If you do not attend the hearing, the Family Court may decide to grant the divorce in your absence.

Are there time limitations?

For married couples the time limitation to finalise property proceedings is within 12 months of the date of the Divorce Order becoming final. If property settlement has not taken place by that time (or proceedings commenced at the Family Court) then you will need to seek the leave of the Family Court to make an application out of time.

A property settlement is the process of splitting the property and financial affairs of parties to a marriage or de facto relationship after separation.

There are two main ways of severing all financial ties with your partner:

Form 11 – Application for Consent Orders

• if you and your partner have reached an agreement about property settlement, Johnstone Crouse Lawyers can assist you in solidifying your agreement by filing a ‘Form 11 – Application for Consent Orders’ and a ‘Minute of Final Orders Sought’.

Form 1 – Initiating Application

• if you and your partner are not able to reach an agreement about property settlement, Johnstone Crouse Lawyers can assist you in commencing proceedings in the Family Court by filing a ‘Form 1 – Initiating Application’.

In determining the division of property and financial matters, the Family Court considers the following:

Step 1 – Asset Pool

• both parties’ assets and liabilities are considered; and
• the net asset pool can include joint and separately owned assets, including:
  • real estate properties;
  • motor vehicles;
  • businesses;
  • Trusts; and
  • funds in bank accounts.

Step 2 – Contributions

• both parties’ contributions are considered; and
• there are three types of contributions:
  • financial contributions;
  • non-financial contributions; and
  • homemaker and caretaker contributions.

Step 3 – Future Needs

• both parties’ future needs are considered; and
• future needs include both parties’:
  • age;
  • health;
  • income;
  • earning capacity;
  • financial resources; and
  • care of children under the age of 18.

Step 4 – Just and Equitable

• with the above 3 steps in mind, the Family Court considers whether the proposed percentage split is just and equitable to both parties.

At Johnstone Crouse Lawyer we have the expertise and skills to assist you with your property and financial issues. We are focused on getting the best outcome for you and aim to resolve disputes as amicably and cost-effectively as possible.

A Binding Financial Agreement is essentially a private contract that determine your property interests in the event of a separation during a marriage or de facto relationship, which can be entered into before, during or after the relationship.

Advantages

• saving time and expense associated with Family Court proceedings, including trial;
• providing certainty and security as to what will happen if the relationship ends;
• protecting certain assets from future claims by a partner, such as inheritance; and
• preserving certain assets, for example the family home by keeping the property separate from any joint property so children can continue to live in the home.

Disadvantages

When signing a Binding Financial Agreement, you should be aware of the following:

• there are technical requirements to ensure an agreement is valid and getting it wrong could invalidate it;
• the Family Court has the power to set aside a Binding Financial Agreement in certain circumstances including:
  • fraud;
  • if the agreement doesn’t meet the legal requirements and is unenforceable;
  • a change in circumstances makes the agreement irrelevant; or
  • financial hardship in certain circumstances.

If you are still unsure of whether a Binding Financial Agreement is right for you, contact us to discuss your options.

Johnstone Crouse Lawyers can assist you if you have a child/ren under the age of 18 and you cannot reach agreement about his/her care arrangements with your ex-partner.

There are two main ways you can deal with parenting matters:

• Form 11 – Application for Consent Orders:
  • if you and your ex-partner have reached an agreement about parenting matter, Johnstone Crouse Lawyers can assist you in solidifying your agreement by filing a ‘Form 11 – Application for Consent Orders’ and a ‘Minute of Final Orders Sought’.

• Form 1 – Initiating Application
  • if you and your ex-partner are not able to reach an agreement about parenting matter, Johnstone Crouse Lawyers can assist you in commencing proceedings in the Family Court by filing a ‘Form 1 – Initiating Application’;
  • you must attempt mediation and obtain a 60i Certificate before commencing proceedings, unless you seek an exemption; and
  • if you cannot obtain a 60i Certificate, contact us to discuss your options.

When dealing with parenting matters the best interest of the child/ren must be regarded as the paramount consideration.

The presumption is that it is the best interest of the child/ren for his/her parents to have equal shared parental responsibility. This presumption does not apply if there are reasonable grounds to believe that the child/ren have been or are at risk of child abuse or family violence.

If you have concerns for your child/ren’s safety while in your ex-partner’s care, contact us to discuss your options.

The purpose of a restraining order is to protect a person form certain behaviour, such as threats, intimidation, violence or the threat of violence, emotional abuse or stalking.

It is a criminal offence for the person bound to breach the restraining order by contacting or approaching the person protected.

Types of restraining orders

• Family Violence Restraining Orders (“FVRO“);
• Violence Restraining Order (“VRO“); and
• Misconduct Restraining Order (“MRO“).

FVROs apply in circumstances where the parties are in a family relationship and are designed to stop future acts of family violence by one person against another person.

VROs and MROs apply in circumstances where the parties are not in a family relationship. VROs are designed to stop future acts of personal violence by one person against another person. MROs are designed to stop a person behaving in a way that is intimidating or offensive towards another person.

At Johnstone Crouse Lawyer we have the expertise and skills to assist you with your restraining order matter.

Recovery Orders require a child/ren to be returned to into the care of:

• one of the child/ren’s parents; or
• a person who has parental responsibility for the child/ren or parenting orders.

If you are one of the above people and the child/ren have been taken away from your care and it is in the best interest of the child/ren to be returned, you can contact us to assist you with making an application for recovery orders.

Contact us to discuss your options and how we can assist you.

Child Relocation Issues Perth

There are many reasons a parent may want to relocate after separation or divorce.

However, there are a number of considerations that must be taken into account when relocating if children are involved.

While the interests and desires of the parent seeking to relocate with a child will not be ignored by the Family Court, the main consideration for the Family Court will be the child’s best interests. This includes the child’s “right” to maintain a relationship with both parents.

Johnstone Crouse Lawyers are highly experienced in all aspects of relocation and understand the importance of both having the freedom to relocate and having a relationship with your children.

Johnstone Crouse Lawyers understand the rights of grandparents and can assist you in maintaining a strong and continuous relationship with your grandchild/ren.

What are grandparent’s rights?

The Family Law Act 1975 (“Act“) acknowledges the importance of child/ren having a relationship with grandparents whether the parents have separated or still remain as one family unit. This does not mean the grandparents have an automatic right to the child/ren as the “best interests of the child” is a paramount decision for the Family Court to reach.

Johnstone Crouse Lawyers can work with you to find out which application to the Family Court best suits your situation and the likelihood of a successful outcome for you and your grandchild/ren.