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Here are some questions that are frequently asked by our clients. If you don’t see the question you want answered, you can set up an appointment to discuss it with us. With over 90+ years experience shared between our family law attorneys, they are sure to be able to provide the answer.

Q: I was recently served with an Intervention Order against me and I am not allowed to go back home. All of my business equipment is at the house and I am worried that without access to this that my business will suffer. Is there anything I can do?

This will depend on the wording of the Order. We can assist by negotiating a mutually convenient time for the items to be collected. It may be beneficial for the police to be present when this occurs. If you require regular access to the property for your equipment, we may need to make an Application to the Court to vary the Intervention Order to seek that you can attend the property at certain times for the purpose of accessing your equipment. There are serious consequences of breaching an Intervention Order. We suggest that you immediately obtain legal advice about your options. We are always willing to assist in such matters.

Q: Can a child be included in an Intervention Order?

A child can be included on an Intervention Order if they are a victim of Family Violence. If you have been served with an Application for an Intervention Order, it is important that you check to see if your child have been included as this may affect your ability to spend time with your child. Contact us for assistance on this family law issue.

Q: I provided my nephew and his wife with a substantial loan so that they could purchase a house. They have now separated and are in protracted court proceedings. The house is currently on the market. One of them is refusing to return the money, arguing that it was a gift and therefore should not be returned. Is there anything I can do to have my funds returned?

It is important that you protect your interests quickly. One option is to seek to formally participate in the Court proceedings. Think about what evidence will assist you in demonstrating that the funds were a loan and not a gift. Our divorce lawyers in Melbourne have extensive experience in helping to protect a third parties rights in a divorce. Contact us today to start protecting your interests.

Q: I want to contribute towards my child’s school fees and other expenses directly to the relevant providers but I can’t afford to do this in addition to paying Child Support as per the Child Support Assessment. What are my options?

Certain expenses that you pay which relate to your child’s welfare can be categorised paying as Child Support. Alternately, you may want to consider entering into a private Child Support Agreement with your ex-spouse about the specific payments you will make. This can include school fees and also periodic sums. Please contact our office to discuss this issue further.

Q: My Ex-spouse’s reported income for child support is not a true reflection of her salary package. Is there anything I can do?

You can make an application for a review of your Child Support Assessment. Alternatively, it may be more appropriate to enter into a private agreement with your ex-spouse known as a Binding Child Support Agreement.

Q: My ex-partner is not paying any Child Support for our children. Does that mean that my ex-partner cannot spend time with the children?

If a parent refuses to pay child support, it does not preclude them from spending time with the children. Likewise, if a parent chooses not to spend time with their children, they are still required to pay child support as assessed. For more detailed advice, contact our family lawyers in Melbourne.

Q: I separated from my spouse 5 years ago. I need to get a formal divorce now as I’m marrying my current partner in a few months. My Divorce Court date has been set for next month. Will my divorce take effect straight away?

Provided that your Application meets the required criteria, and you can prove that your spouse has been served with the relevant documents. Your divorce will be granted however it will not come into effect until one month and one day after the court hearing. If your wedding date is prior to this, you will need to apply for the divorce to come into effect earlier. You cannot remarry until your divorce is formalised. Contact us to get started on this process now.

Q: My fiancé’s finances are tied up in very a complicated company/ trust structure. Does this affect my ability to include these assets in a Binding Financial Agreement, even though I know that in practical terms my fiancé ‘owns’ all of these assets?

These assets can still be considered and included. Depending on a number of factors including the formal role your fiancé has in the relevant entities, it may be necessary to include the Company as a party to the Agreement. Contact our family lawyers for more advice on pre-nuptial agreements.

Q: I have agreed to enter into a Binding Financial Agreement with my partner. She has downloaded a form she found on the internet and has told me to sign it in the presence of a lawyer. Will this Agreement be valid?

There are specific requirements that must be met in order for a Binding Financial Agreement to be enforceable. This includes specific wording and a requirement for each party to obtain their own independent legal advice about the advantages and disadvantages of the Agreement. The legal practitioner, usually a family / divorce lawyer, who provides that advice must give you a statement confirming that such advice has been provided. We would strongly advise against using a ‘template document’ , which will likely be unenforceable. Contact us to get a valid agreement drawn up that safeguards your interests in the future.

Q: My property settlement with my first partner was stressful, bitter and overwhelming. I’ve since moved on and intend to marry my current partner. Whilst I do not foresee us separating, in the event that we do, I do not want to go through the same painful process that I did with my first partner. What can I do to mitigate this from occurring?

Entering into a Binding Financial Agreement (a ‘pre nup’) can assist in protecting certain assets and cam provide you with the opportunity to reach an agreement with your partner about the finalisation of financial issues, in the event of the relationship breaking down. Given the uncertainty of life, we can prepare a Binding Financial Agreements which takes into account various possible life events such as the arrival of children, health issues, inheritances from family members etc.
If you intend to enter into a Binding Financial Agreement prior to your marriage, we suggest that you do this well prior to your marriage date.

Q: I lived with my now ex-partner for numerous years but we never married. Can I seek Spousal Maintenance?

Despite being called Spousal Maintenance, this form of payment is also available in situations involving de-facto relationships.

Q: I obtained an inheritance from my Aunt. Can I keep this in its entirety?

This will depend on a number of factors, including when you received your inheritance and whether your ex-partner made any ‘contribution’ to it. Should this be an issue of concern, please contact our office to discuss your specific situation.

Q: I don’t want to go to court. Is there another way of documenting a financial settlement?

A Property settlement can be negotiated without the need of going to court. Any agreement can then be formally documented either by seeking consent Order from the Court or via what is called a Binding Financial Agreement.

Q: I’m worried that my Ex-partner is going to dispose of our property in order to reduce the asset pool. Is there anything I can do?

There are steps that we can take on your behalf in order to protect your assets, including obtaining an injunction preventing certain assets being disposed of. If you are concerned that any assets may be disposed of without your knowledge or consent, we suggest that you seek legal advice from our family law solicitors as a matter of urgency.

Q: Are assets that are part of a trust (and therefore not owned in name by either of us) able to be divided?

An asset cannot be excluded simply because of the existence of a trust. If however, others such as siblings etc also hold roles/rights in relation to the trust, it may be that only a portion of the assets belonging to the trust can be included in the asset pool. Trusts can involve complicated structures and it may be necessary to include other people associated with the trust in negotiations. Should you wish to obtain more information about the treatment of trusts, corporate entities and the like, please contact our office to speak with an experienced member of our team.

Q: Our house and business are registered in my sole name. Does this mean that my ex-partner can’t ‘claim’ this property?

Whilst the court will consider if it is just and equitable to leave assets ‘where they lie,’ assets that are held only in one person’s name are not excluded from the asset pool to be divided. For the best advice on your situation and property settlement contact our family law offices today.

Q: The children are going to live with me. Do I automatically retain the former family home?

You do not automatically retain the former family home if the children are living with you. However, this may be a relevant issue in the division of the assets as being the primary carer of the children may affect your earning capacity.

Q: How do I obtain financial support for my children from my ex-partner and will this continue once my child turns 18?

Parents have a legal obligation to financially support their children. This can be via regular cash payments to the resident parent, lump sums or payment of specific expenses including school fees, medical expenses etc. An Application can be made to the Child Support Agency for a child support assessment or parents can enter into a Binding Child Support Agreement which can remain in effect until the child turns 18. If you are seeking for Child Maintenance to continue after a child turns 18 and after they have completed their secondary education, a specific Application must be made to the Court. For more information, see Child Support and Child Maintenance.

Q: Can an Intervention Order prevent a parent from seeing the children?

Whether an Intervention Order prevents someone from seeing a child will depend on the specific terms of the Order, including whether the child is included in the Intervention Order and whether there is scope to negotiate arrangements. Since Intervention Orders and Family Law Children’s matters are dealt with in different Courts, there can be conflicting provisions between the two different Orders. It is advisable for you to obtain legal advice in relation to the specific Orders. For more information, see our section on Family Violence and Intervention (Restraining) Orders or contact our office to speak with a member of our team.

Q: Can Children’s Orders be made in favour of a non-biological parent?

Anyone who is concerned with the care, welfare or development of a child can apply for a parenting order to be made. This includes same sex couples, de facto couples separating, biological parents, relatives etc.

Q: At what age can my child decide who they live with? Does my child have a ‘say’?

There is no specific age in which a children are able to unanimously decide who they are to live with, though, bearing in mind the child’s maturity level, the court can consider any views expressed by each child. The children do not speak to the Judge directly. There are various methods used to include the children within the process.

Q: Will a 50/50 arrangement automatically be made?

This is a common misconception. A Court will not automatically make orders for children to live with each parent on an equal ‘50/50’ basis. The Court will consider what is practicable and in the children’s best interests when deciding who the children should live with (including whether this should be on an equal shared basis), and what time the children should spend with the ‘non resident’ parent, taking into account a number of factors. Every family is different so the considerations will vary. To discuss what issues may be relevant to your separation, please contact our office.

Q: Does having ‘equal shared parental responsibility’ mean that the children live with each parent on an equal 50/50 basis?

Equal shared parental responsibility refers to the people who are able to make long term decisions about the children. This can include decisions relating to the children’s education, health and religion. It does not mean that the children live with each parent on an equal 50/50 basis, though if Court Orders are made for equal shared parental responsibility, the Court is required to consider whether it is practicable and in the children’s best interests for a ‘50/50’ arrangement to be adopted. To understand more about this important aspect in children’s matters, please contact us to speak with a member of our experienced team.

Frequently Asked Questions

Our experts answer questions we are most frequently asked