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.

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;
• you must pay $940.00 for the filing fee ($310.00 if you have an eligible concession card); 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 enables a couple to decide between themselves the division of assets if the relationship ends.

You may decide to enter into a Binding Financial Agreement if you:

• have children from a previous relationship;
• have valuable assets you want to protect such as property and shares;
• own your own business;
• will receive a significant inheritance;
• have relatives who are dependent on you; and/or
• are the beneficiary of a trust.

You can enter into a Binding Financial Agreement before, during or after the breakdown of a marriage or de facto 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.
• a Binding Financial Agreement can suggest a lack of trust or a lack of confidence in the relationship. Raising it with your partner may be difficult but in the long run will ensure your future financial security.

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; 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.

Applying for a restraining order

An application for a restraining order can be made by the person seeking protection or in some cases by a person on behalf of that person.

Once an application for a restraining order is made, the Magistrates Court will list the matter for an ex-parte hearing at the next available date.

Objecting to a restraining order

When an interim restraining order is made, the person bound by the interim restraining order has 21 days to object to the interim restraining order. Failure to do so will result in the interim restraining order being made final.

If the person bound has objected to the interim restraining order, the Magistrates Court will list the matter for a Mention or Final Order Hearing.

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.

The process in obtaining a recovery order is:

• Step 1 – Complete a ‘Form 1 – Initiating Application’ or ‘Form 2 – Application in a Case’
  • if there are parenting orders already in place, you must file a ‘Form 2 – Application in a Case’ and Affidavit in support;
  • if there are no parenting orders in place, you must file a ‘Form 1 – Initiating Application’ and ‘Case Information Affidavit’;
  • there are specific orders required to be sought in the application, such as involvement of the police to collect the child/ren;
  • you must write a covering letter with your application and inform the court about urgency of the application; and
  • you do not need to attempt mediation or obtain a 60i Certificate because of the urgency of the application.

• Step 2 – Service
  • you are required to serve the application on the other party, however, sometimes the nature of the recovery order makes it impossible to do so; and
  • this depends on the urgency of the matter and the Family Court sometimes will notify you once they have considered your application.

• Step 3 – Hearing
  •  the Family Court will allocate a hearing date at the next available date;
  • the Family Court may make an order for the child/ren to be returned to your care at a specific time and place; and
  • the Family Court may authorise or direct the police to collect the child/ren and return him/her to your care.

My ex-partner has taken my children overseas, can I get them back?

Australia has an agreement with some countries to return abducted children to their country of residence.

See a full list of the countries that are part of the agreement with Australia here.

If you ex-partner has taken your child/ren to a country that forms part of the agreement with Australia, then it is possible to obtain an order in an Australian Court that can be enforced in that country.

Johnstone Crouse Lawyers understand the urgency of these situations. We can assist you in making or responding to an application for a recovery order. Time is often critical, and our team has the resources and capability to work 24/7 if necessary to ensure you get the legal support and advice you need.

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.

Can I move away with my child after separation?

Relocating after separation will depend on various factors, such as:

• whether the relocation will be intrastate, interstate or international/overseas;
• the reason for relocating, for example:
  • financial improvement;
  • greater professional opportunities;
  • career advancement;
  • improved lifestyle;
  • stronger family support base; and
  • re-partnering or future marriage.
• the age of the child or children;
• the needs of the child or children; and
• whether there a possibility for both parents to relocate.

How far can I move away with my child?

There is not necessarily a limit on where a parent can relocate to.

In some cases relocating from one suburb to another my be an issue and in other cases relocation overseas have been permitted.

Relocation cases are heavily dependent on the circumstances of each case.

Do I need permission to move interstate or overseas with my child?

You do not need permission from your ex-partner to relocate, but requesting their permission is the starting point.

If your ex-partner does not give permission to relocate, you will need to make an application to the Family Court to relocate.

Regardless whether the relocation will be intrastate, interstate or international/overseas, the Family Court will:

• look at what is in the best interests of the child as the most important (but not the only) consideration;
• examine the options or proposals each person has made for the arrangements for the child; and
• consider the reason for the proposed move.

I don’t know where my children are, what can I do?

If you are unable to find out where your ex-partner relocated to with your child/ren from your own searches such as your family and friends, an urgent application can be made to the Family Court for a location order or a Commonwealth Information order. This will involve a notice being sent out to various government departments to locate your ex partner and child/ren.

If your child/ren have passports and you are concerned that your ex-partner might be in the process of relocating overseas, an urgent application can be made to the Family Court to place your children on an airport watchlist to prevent your child/ren from leaving Australia.

If your ex-partner has relocated with the child/ren without your permission or an order form the Family Court, then you can make an application for a recovery order.

A recovery order is an order made by the court requiring the return of a child.

How can Johnstone Crouse Lawyers help with relocation issues?

Johnstone Crouse Lawyers can help assess your situation and work with you to negotiate a satisfactory relocation outcome for you and your child/ren. If necessary, we can assist you in making or responding to a relocation application to the Family Court.

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.