Separation & Divorce
Separation & Divorce
Unfortunately, and sometimes unexpectedly, relationships come to an end. Separation of a de facto or married couple can be a very difficult and strenuous time, especially when children or property are involved.
Separation specifically occurs (generally) when one party decides they no longer wish to be in a relationship with the other, communicates that to the other party and then begins to live as if the relationship were over. This commonly takes the form of one party moving out of the former family home. However, sometimes this is not possible for one reason or another, so you may find you and your former partner separated under the one roof.
Once separated, your mind may begin to turn to what happens next. As you might imagine, there are a number of steps that need to be taken to divide your property, arrange for the care of your children and (as it applies to you) end your marriage. If you have any questions about what to do next, there are a wealth of resources available (see our “Useful Links” tab for more) or you might consider obtaining legal advice from our family law solicitors in Perth.
For de facto couples, separation marks the end of the relationship. Generally, the parties have 24 months to finalise their property matters in the Court. For married couples, again generally, the parties have 12 months from the date of their divorce to finalise their property matters.
A married couple may apply in the Family Court of Western Australia for a divorce after 12 months of separation. A divorce is a straight-forward application, though may have complications and involve Court dates in circumstances where the parties have underage children, were separated under the one roof for a period of time or if one party won’t take part in the divorce process. It is in those circumstances that you might consider reaching out for legal advice.
The family law solicitors team at D’Angelo Legal in Perth are happy to guide and assist you through the separation and divorce process and it is our continued privilege to support our clients as they navigate through this stage of their lives. If you are interested in learning more, head to our Contact Us page to find out how you can speak with one of our Family Law team.
Managing the care and welfare of children after the end of a relationship can often be challenging. You and your former spouse may not agree on what might be the best care arrangements for your children and how to go about bridging that gap.
Any care arrangement for a child must be in their best interests. The law and the Family Court of Western Australia considers a great number of things in this respect, with the primary interests being that children have a meaningful relationship with both of their parents and, above all else, that they are kept safe from neglect, abuse or harm.
In circumstances where neglect, abuse or harm is in issue, special care must be taken around decisions that affect a child’s care arrangements. As far as possible, children should live free of exposure to drug and alcohol abuse, family violence and neglect. If you fear that your child or children would be exposed to such harm following your separation, you might consider obtaining urgent legal advice from our family law solicitors in Perth or reaching out to one of the support networks listed under our “Family Violence” or “Useful Links” tabs.
There are many other complicating factors to children and parenting matters and the law applies to each family’s circumstances differently. You might consider seeking legal advice if:
- You are a grandparent who wishes to have access to or care of a grandchild;
- A step-parent who wishes to have access to or care of a step-child;
- You are considering relocating to another part of Australia, or internationally, post-separation;
- You are considering adoption, foster-care or surrogacy of a child, at any stage in your life.
Parents must also consider how they might continue to make the important, long-term care and welfare decisions for their children, post-separation. Parental responsibility is, generally, vested with both parents equally (regardless of a child’s care arrangements), unless there are risk factors for a parent or child, or one parent is (for any reason) unable to exercise their parental responsibility.
Naturally, the way forward for your parenting relationship and children will be paramount in your thoughts following a break-up. It is important that you equip yourself with as much information as you can as you make decisions about their care and welfare moving forwards. It is for this reason that you might consider obtaining legal advice on any difference in the position you and your former partner may have and what the law might consider as being in your children’s best interests.
The family law solicitors team at D’Angelo Legal in Perth are committed to serving your children’s needs along with your own and it is our continued privilege to assist parents and families as they navigate through this stage of their lives. If you are interested in learning more, head to our Contact Us page to find out how you can speak with one of our Family Law team.
Following separation, it is natural that your mind might turn to the question of “what happens with our house, our money, our debt, our superannuation?…”. Most commonly, those going through a separation simply want to know what is “fair” in their circumstances.
The division of a de facto or matrimonial asset pool is based on a number of considerations, with the principal one being that any potential division is just and equitable. In considering whether a division of de facto or matrimonial assets is just and equitable, attention must be paid to:
- The asset pool available for division. Subject to exceptions, this extends to all assets in your name, your former partner’s name and assets in your joint names;
- The contributions that you and your former-partner made during the relationship. Contributions are characterised as being both financial and non-financial (including parenting and homemaker contributions);
- What the future needs are of each party as they depart the relationship (as it relates to things like income, earning capacity and care of children); and
- The individual circumstances of each party.
In addition to those points, there are other factors which may affect what a just and equitable separation of your de facto and matrimonial assets might look like. No two relationships are the same and there isn’t any definitive formula to equate these things by. It all depends on your circumstances.
Additionally to a division of your property, you might also be thinking about how you might be able to afford to get by without the financial assistance of your former-partner, especially if you are unable to work or have children in your primary care. It is in these circumstances that you may wish to get legal advice from family law specialists on your spousal maintenance, child maintenance and adult child maintenance entitlements.
It is very common for former-partners to start having conversations about these things from the date of separation, especially as you start to think about what your finances will need to look like following the end of your relationship. Healthy discussion between former-partners is encouraged by the Family Court of Western Australia and reaching what agreements you can is encouraged.
If an agreement is reached, it can most often be easily ratified with formal documentation. What type of documentation largely depends on the nature of the agreement reached and what your needs are. The benefit of having agreements finalised is felt most when those agreements involve the transfer of houses or property; without these documents, you could find yourself paying stamp duty on the transfer of that property. Formal Family Law documentation can get you around that.
If agreements are not reached, then you may have to consider alternative dispute resolution methods or moving your matter into the Family Court of Western Australia. For more on those, see the following tabs.
Negotiations, Mediation & Alternative Dispute Resolution
Going to Court (Family Court)
A stumbling block to agreements being reached can sometimes lie in one or both parties feeling that the other has not shared all of the financial information they need to get legal advice from our family law solicitors in Perth to make a decision. In the context of a Family Law property division, parties are expected to be full and frank in their disclosure of their financial information. This is not just what you might own and how much it might be worth, but also providing financial records and documentation to show what is in your asset pool. Knowing what to share and when can be tricky and might be something you get legal advice upon. Similarly, if you are finding you need further information and it isn’t being shared, this is something else you can get advice on.
The family law solicitors team at D’Angelo Legal in Perth are committed to helping you wade through the mud when it comes to Family Law property matters and it is our continued privilege to assist clients as they navigate through this stage of their lives. If you are interested in learning more, head to our Contact Us page to find out how you can speak with one of our Family Law team.
Family Violence & Restraining Orders
Family Violence & Restraining Orders
If you, a child or someone close to you is under any immediate threat of danger, call “000” for police now.
Some Family Law matters may be affected by family violence. Family violence can affect any person and it happens between people of all ages, race, gender or background. Family violence includes behaviour between partners (or others, in some circumstances) such as:
- an assault; or
- a sexual assault or other sexually abusive behaviour; or
- stalking; or
- repeated derogatory taunts; or
- intentionally damaging or destroying property; or
- intentionally causing death or injury to an animal; or
- unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
- unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
- preventing the family member from making or keeping connections with his or her family, friends or culture; or
- unlawfully depriving the family member, or any member of the family member’s family, or his or her liberty.
If a child is exposed to family violence or assists a parent in the wake of family violence, then they may very likely be considered to be victims of that violence as well.
In addition to family violence, a child or family member can also be affected by emotional or psychological abuse, intimidation or control and serious neglect (a parent or family member failing to take the very most basic care of a child).
This will, naturally, affect the way that your Family Law matter may be concluded. Victims of family violence very often (and understandably) develop a fear of the perpetrator. This can make attending mediation or addressing Family Law matters (both in and out of Court) very uncomfortable and difficult. Further, it is these sorts of matters which may call for some form of urgent intervention by the Family Court of Western Australia to protect a child or former-partner.
Family violence, in some circumstances, can also affect the outcome of Family Law matters as they relate to property.
Repeated family violence behaviour may warrant a family violence restraining order (FVRO). An FVRO can limit or cease the contact that you have with another person and can extend to protect your children as necessary. Restraining Orders are governed by different parts of the law and are considered in the Magistrates Court, rather than the Family Court, but the general understanding of, and attitudes towards, family violence is the same.
Conversely, you may find allegations of family violence have been made against you which you disagree with. It is important to get honest and reliable feedback in those circumstances so that any misunderstandings do not have lasting effects on your relationships and Family Law matters.
The law and the Court reject all forms of family violence and work to ensure that all people are protected from such behaviour in their family and intimate relationships. If you are a victim of or have used, family violence, you can reach out to resources such as White Ribbon, Lifeline and 1800Respect. The Family Court of Western Australia and The Family Court of Australia have their own information sheets and protocols (if you are intimidated by being near a person in a Court setting) available on their websites. You can also contact the Department of Human Services to find out what services and relief can be available to you in these difficult circumstances, as well as Legal Aid WA.
You may also wish to obtain legal advice. The family law solicitors team at D’Angelo Legal in Perth have experience in matters involving family violence, substance abuse and neglect issues across a wide spectrum and can answer your particular questions about how family violence may affect your matter and, more importantly, how you can protect yourself and your family. We take your concerns seriously and are here to give you practical advice and support in any circumstances. If you are interested in learning more, head to our Contact Us page to find out how you can speak with one of our Family Law team.
Negotiations, Mediation and Alternative Dispute Resolution
Negotiations, Mediation and Alternative Dispute Resolution
A more peaceful path…
More and more frequently, parties to separation are looking to alternatives to Court litigation and opting to take a more collaborative and cooperative approach to finalise their Family Law matters. We at D’Angelo Legal encourage parents and parties to separate and explore their options for settlement before turning to the Court, which should always be looked at as a last resort and only used if absolutely necessary. It is because of this that one is not permitted to commence legal proceedings against their former partner unless they have taken part in some form of Alternative Dispute Resolution.
Given the very high volume of cases in the Family Court of Western Australia, litigation does not always present the easiest path. Court matters can take a considerable amount of time to finalise (if there is no immediate urgency) and can result in considerable legal fees (if you enter Court with legal representation). It is because of this that Court proceedings should be carefully informed and thought out before commencement.
More commonly, families are turning to alternative dispute resolution methods to help resolve their matters. These methods can include:
Negotiations: Normally done in writing, negotiations are incredibly commonplace. They normally take the form of written offers exchanged between two parties, until a final agreement is reached, on any Family Law matter.
Family Dispute Resolution Mediation (FDR): In a Family Law setting, mediation is best conducted by an FDR practitioner. FDR mediation can be used for all Family Law matters.
FDR practitioners are professionals with a Family Law, social work, counselling (or related) background who have taken on further training to assist parties to a Family Law dispute to reach a resolution. All FDR practitioners are registered with the Attorney General’s office and must continue to meet strict professional standards.
FDR mediation is the most common form of Family Law dispute resolution. The process involves the two parties engaging in exploratory conversation (with or without their lawyers present) with the aim of addressing the pressing issues between them and working together to find solutions to their problems. FDR mediation has a lot of success in the community and helps many parties each year reach their own agreements in a timely basis, keeping them from entering the Family Court system.
If you look to engage in mediation, you will be asked if you have obtained legal advice beforehand. As the majority of mediations (at least entry-level mediations) will not take place with lawyers present, it is important you consider getting legal advice before you attend your meditation. Importantly, you can’t commence proceedings in the Family Court of Western Australia in relation to non-urgent children’s matters without having at least tried to undertake FDR mediation with your former spouse.
Collaborative Law: Collaborative Law is a particular style of dispute resolution, whereby the parties agree in writing at the very commencement of their matter that they will not threaten to, or actually, commence Family Court proceedings on the matter. Utilising the services of trained Family Law and financial professionals, as well as mediators and, sometimes, mental health professionals, the parties take a holistic and cooperative approach to resolving their Family Law matters.
Utilising Collaborative Law can result in a quicker and more peaceful resolution to your matter. Your costs will be higher as you and your former partner take on more professionals in the process, though they are there to answer every practical question on the matter and to help ensure that final agreements are going to work and serve the parties they affect. If final agreements can’t be reached, then the parties can break the Collaborative Law agreement and look at going to the Court for assistance, however they must dismiss their existing legal team to do so.
Arbitration: Arbitration is an alternative dispute resolution practice used in Family Law property matters, whereby an experienced arbitrator considers the positions, views and evidence of both parties and makes a decision for them about how a settlement might take place. The arbitrator stands in the shoes of the Court and makes a decision for the parties when they commonly can’t, but without lengthy Court delays, saving on legal fees down the track.
These are just a snapshot of the dispute resolution models available in Family Law. Aside from reducing the load in the Court, alternative dispute resolution aims not just to solve the main issues in dispute between two parties but also to try to satisfy the root causes for their conflict.
The family law solicitors team at D’Angelo Legal in Perth can help advise you on the alternative dispute resolution style which might suit your matter best, as well as which professional services to consider enlisting for the task. Our passion is serving our client’s best interests and providing them with the most family and child-focused Family Law services we can. If you are interested in learning more, head to our Contact Us page to find out how you can speak with one of our Family Law team.
Going to Court (Family Court)
Going to Court (Family Court)
Sometimes, despite exercising every alternative, matters find their way into the Family Court of Western Australia. In those circumstances, matters take on a more regimented and technical character which needs to be abided by. The road upon which your matter might travel in the Court is varied and there will be Court Ordered deadlines that will need to be met.
If your matter is in the Court, you will need to appear at your Court dates as they are listed. You can’t easily change a Court date if it is inconvenient and, unless all parties agree to the change, you will have to make sure you attend. You can write to the Court about your matter (limited to certain topics) and, when you do, you have to make sure that you provide copies of any correspondence to all parties to the matter.
This is the same for your Court documents and meeting Ordered deadlines. You must provide the Court and other parties the information the Court prescribes, in the time required. Court documents must be compiled in their specified forms, which are all available on the Family Court of Western Australia website.
Importantly, it should be remembered that negotiations and mediations can still take place whilst Court proceedings are on. There will be opportunities along the way to try and reach an agreement (or, at least, close the gap between parties) about a resolution to your matter and the majority of matters will conclude by way of settlement. Sometimes, it takes Court proceedings to move parties towards a settlement.
However, all Court matters have the capacity to go through a trial and that will be the conclusion of every Family Court matter if an agreement is not reached. The process of the trial can cause further conflicts between parties. It is on this basis that Court proceedings should be very carefully considered before being commenced. Naturally, there are going to be circumstances where Court is the necessary option, especially when there are significant problems in relation to the care or welfare of a child, or when an important asset owned by the parties is at risk.
You can elect to proceed in the Court with or without legal representation – the Family Court of Western Australia has one of the highest numbers of litigants who don’t have lawyers. However, you can take on legal assistance in a variety of ways to suit your needs in the matter. This can be from ongoing, ad hoc advice (“in the background”), to assist with document drafting, to full representation in the Court and to the other parties. Your decision to engage a lawyer, in whatever measure, will be dictated by your needs.
The family law solicitors team at D’Angelo Legal in Perth is happy to assist in all stages of your Family Court proceedings, instructing Counsel (specialist Barristers) as needed, or simply assisting with your documents, Court deadlines or general advice along the way. If you are interested in learning more, head to our Contact Us page to find out how you can speak with one of our Family Law team.
Useful Family Law Resources
Useful Family Law Resources
Legal Aid WA
Family Dispute Resolution
Counselling and Support Services