In complex parenting cases, a judge may order the appointment of an independent children’s lawyer (ICL). Parties may also request the appointment of an ICL if they can demonstrate to the court that it is essential. An independent children’s lawyer, according to the Family Law Act of 1975, is a legal practitioner with specific training and experience in complex family disputes, and their responsibility is to advocate the children’s best interests. They effectively serve as a neutral third party in the proceedings, distinct from opposing parents or family members. In any parenting matter, the ICL’s responsibility is to advocate entirely for the best interests of the kid or children involved.

What is the purpose of appointing an ICL?

indepOnly the most difficult, high-conflict parenting situations usually necessitate the use of an ICL. One example is situations involving allegations of abuse, neglect, or familial violence. An ICL is also required if one or both parents, or one or more children, suffer from mental health concerns or have a disability. An ICL may be appointed to represent the best interests of a child who is of legal age and capable of expressing clear views that differ significantly from those of a parent. Additionally, in cases when none of the aforementioned requirements apply yet the parties’ asserted cases are diametrically opposed, an ICL may be required.

Is the child represented by an ICL?

No. The ICL is a non-profit organisation that advocates for children’s rights. While the wishes of children involved in custody battles may coincide with what the ICL considers to be in their best interests, this is not always the case. However, it is within the scope of the ICL’s responsibility to ensure that the court is fully informed of the children’s opinions if any have been stated.

What criteria does an ICL use to evaluate what is in the best interests of the children?

The ICL will normally collect pertinent information about the children and their family conditions through a process. They can accomplish this in a variety of ways:

• Having a psychologist, psychiatrist, or social worker produce a family report
• Obtaining information from the child’s instructors, guidance counsellor, medical provider, or other professionals with whom they interact on a daily basis.
• Obtaining any relevant expert evidence or information from government agencies.
• Direct communication with the children.

Who foots the bill for the ICL’s services?

The costs of the ICL will typically be covered by the appropriate State or Territory’s Legal Aid Commission, however, the parties may be required to pay costs in certain instances.

When does the court receive a referral from the independent children’s lawyer?

In some circumstances, an Independent Children’s Lawyer will know what orders they would seek on behalf of the child early on in the case. If the Independent Children’s Lawyer is aware of the situation, they will inform the parents’ lawyers or you, if you are not represented by a family lawyer. This may be beneficial in negotiations. In some circumstances, the best interests of the child may be ambiguous, and the Independent Children’s Lawyer may not be able to make a recommendation until much later, if at all.

Is it possible for the independent children’s lawyer to change their mind?

Yes. The recommendation of an Independent Children’s Lawyer will be based on the evidence available at the time. If new evidence becomes available before the court issues final orders, the Independent Children’s Lawyer must assess how this would affect any recommendations.

Is it true that the court always consider the requests of the independent children’s lawyer?

The judge pays close attention to what everyone in the case has to say and then makes a judgement based on all of the facts presented.

What else does an independent child’s lawyer do for a living?

Encourages and participates in any negotiations aimed at resolving the issue in your child’s best interests.

Demands that appropriate measures be made to safeguard the child’s interests while the case is resolved.

What is the difference between a family report and an independent expert report?

A written report regarding a child, the parents, and anybody else engaged in the case will be ordered by the court in challenging instances. The Independent Children’s Lawyer will frequently file an application for this order. Depending on the circumstances, a family consultant, social worker, child and family psychologist, or psychiatrist prepares this report. The information is gathered through interviews with those who are involved in the situation. The court will make the report public and distribute it to your lawyer (or you if you’re representing yourself) and the Independent Children’s Lawyer. It may be useful in facilitating negotiations that lead to a settlement of the dispute. If the case is not settled, the report will be considered by the judge as evidence.

When the case is finished, what happens next?

The court orders are explained to your child by the Independent Children’s Lawyer (if they are old enough to understand).

In addition, the ICL may be involved in any follow-up arrangements related to any court orders.

Important things to keep in mind

Ensure that your child attends all of the Independent Children’s Lawyer’s appointments.

Even if you are not represented by a lawyer, the ICL will be limited in what he or she can share with you to ensure their independence in the case. If you are represented by a lawyer, you should discuss any concerns you have with your lawyer, who will contact the Independent Children’s Lawyer on your behalf.

Please do not enquire about your child’s meetings with the Independent Children’s Lawyer. They should be kept private between you and your child’s lawyer.

Allow your child to call the Independent Children’s Lawyer at any time.

Is it necessary for me to pay the Fee for Independent Children’s Lawyers?

The Legal Services Commission pays the Independent Children’s Lawyer’s expenses, although the lawyer is obligated by the existing Commonwealth Family Law Funding Guidelines to seek a contribution from each of the parties. When a party receives legal aid funds, the Legal Services Commission has the authority to waive or modify this obligation.

Is the Children’s Lawyer Independent Going to Take Sides?

The Independent Children’s Lawyer will not take sides, but may support one of the parties’ application if they consider it is in the child’s or children’s best interests. Unless a party is self-represented, in which case the Independent Children’s Lawyer will communicate with that party in writing, the lawyer will normally communicate with the parties through their lawyers.

What Should You Do Now?

At Mediations Australia, we have a team of family lawyers and mediators who can assist you in Canberra, Perth, Adelaide, Melbourne and all other locations in Australia. We also do international family law matters.

Unless you’re protecting yourself or your property, it’s illegal to record someone without their agreement under state law. If you are convicted of filming someone without their consent, you might face up to five years in prison, depending on the severity of the crime.

There is no problem of illegality if you have your spouse’s express or inferred consent to record them.

Is it legal to tape a telephone conversation?

No, is the quick response. The Surveillance Devices Act governs the making and use of covert recordings in NSW. The use of listening devices to record a private discussion to which the individual is or is not a party is prohibited under Section 7 of the Act. A private conversation does not include one held in circumstances where the participants have a reasonable expectation that it would be overheard by others. A listening device is defined as any equipment that can be used to overhear, record, monitor, or listen to a conversation or words uttered to or by any person in discussion, including a smartphone. Of course, there are exceptions for ASIO, the police, and other government agencies, but those exclusions would not apply in a family law case.

The consequences for breaking the rules against intercepting or secretly recording a conversation vary, but can include restitution to the other party, fines of up to $11,000.00, and up to five years in prison.

Is it possible to utilise a hidden recording as evidence in Family Court?

The restriction on the use of listening devices to record private conversations has various exceptions. If all of the main participants in the conversation grant their verbal or implied approval to the gadget being used, the restriction does not apply.

The Family Court has the authority to admit or exclude the recording from evidence. The Court evaluates whether the recording is reasonably necessary to preserve the lawful interests of the principal party to the private conversation, such as to support or defend charges of domestic abuse, while exercising this power. The benefit to the case’s resolution in admitting the recorded evidence would be weighed against the harm to the parties and the justice of the case in enabling one of them to rely on illegally obtained evidence. The Court would also evaluate the evidence’s significance as well as the difficulty (if any) of getting it without breaking the law. It’s crucial to understand that even if the illegal secret recording is permitted into evidence, the individual who made it may still face criminal charges or damages for their actions.

Should you do it even if it’s legal?

Of course, the answer to this question will vary depending on the specific circumstances of each situation. In areas where it is allowed, such as Victoria, Queensland, and the Northern Territory, surreptitiously recording conversations might be appropriate if there are substantial, regular arguments about who said what and when perhaps because of drug or alcohol misuse or significant mental illness.

Even in circumstances where a secret recording of conversations is appealing or even seems appropriate, the one who wishes to do the recording should consider the long-term implications of a significant loss of trust in their relationship with the other person before proceeding. It would be difficult, if not impossible, to continue to trust someone after learning that they have been secretly recording your chats. When children are involved and the couple needs to have a parenting relationship in the future, ongoing trust between a separating spouse is very vital.

Making thorough notes of conversations with an ex-partner as soon as possible after the sessions have concluded is a middle ground alternative for surreptitiously recording conversations with an ex-partner, regardless of whether it is legal to do so in the particular area. Such notes would be extremely useful in compiling evidence for any family law case, without jeopardising confidence by secretly recording discussions.

Because surreptitiously recording a discussion with an ex-partner may be illegal, not only is there a possibility that it may be excluded as evidence in family law procedures, but the individual who made the recording could also face civil and criminal penalties. Even if surreptitiously recording a discussion with an ex is legal, it isn’t always a smart idea to do so. Taking notes on the chat rather than secretly recording it would be a safer option.

How Would a Court Consider it?

The first question a Judge will ask is whether the recording should be accepted into evidence, regardless of whether it is illegal or not. The starting point is that if the evidence was obtained illegally or unlawfully, it should not be included unless the benefits of doing so exceed the disadvantages.

The Judge will consider the following factors in determining this:

• the significance of the evidence,
• its probative value,
• the seriousness of the impropriety or breach in creating the recording,
• and if the police will act on it (if illegally obtained).

Due to the difficulty of family violence occurring behind closed doors and the absence of supporting evidence, a judge may admit covert recordings to collect proof of family violence.

The parties agreed in the instance of Jasper & Corrigan (No.2) [2017] that the Wife had recorded the Husband’s discussion without his knowledge or consent. The Court was then confronted with the decision of whether to allow the Wife to use the recording as evidence.

The Presiding Judge looked at the laws in New South Wales that deal with unauthorised recordings. In terms of evidence, the Judge determined that the Wife had no other options. As a result, the recordings were “reasonably essential” as evidence. The tape was admitted into evidence by His Honour.

The Judge then assigns weight to the evidence after it has been admitted. This implies that even if you get your tape in, it may not help your case because the Judge may not give it any weight. If you were seen making a recording in a way that could be perceived as frightening, or if the recording was seen as a’set-up,’ it could hurt your case.

How Can We Help?

At Mediations Australia, we’re early resolution focused. If you are thinking of separation or have already separated and need to understand your legal position in things, talk to us today! we have a team of family lawyers and mediators who can assist you in Canberra, Perth, Adelaide, Melbourne, Sydney and all other locations in Australia. We also do international family law matters.

When parents cannot agree on issues that affect a child’s near and long term future, parental mediation is advised.

These might include disagreements between you and your former partner like:

• Who the child should live with
• time spent with each parent
• where the child lives
• what childcare or school the child attends
• and their educational well-being (i.e. homework)
• what extra-curricular activities the child participates in
• third parties involved with the child (i.e. babysitters, extended family, new partners)
• the child’s financial well-being (nutrition, doctor and specialist appointments)

Prior to filing an application in court for parental issues, the Family Law Act requires you to try mediation, sometimes known as obligatory family conflict resolution. Section 60i of the Family Law Act contains this clause.

What is a 60i certificate, and what does it entail?

The mediator will grant you a 60i certificate if you seek mediation or conflict resolution and the other parent refuses to participate or you are unable to reach an agreement. This certificate will enable you to have the court consider your parenting dispute and decide on it.

There are certain exceptions to the requirement to get a 60i certificate. The following are examples of these scenarios:

• If your matter is urgent, such as a Recovery Order;
• if the court is satisfied there are reasonable grounds to believe there has been child abuse or that the child/children are in imminent danger;
• if a party is unable to participate effectively in family dispute resolution, for example, due to incapacity or physical distance from a family dispute resolution provider; or
• if your application relates to an alleged breach of an existing order that was made.

The advantage of using mediation before going to court is that you might be able to achieve an agreement that is in the best interests of your child/children, especially if the following things happen:

• You hire a qualified mediator;
• both parents are willing to make concessions in order to achieve an agreement;
• and both parents are fully committed to resolving the issue.

Why is it necessary to mediate?

Family Dispute Resolution (“FDR”) or mediation must be completed before you may go to the Family Court for parenting orders in child custody/parenting issues unless you are entitled to an exception. All parties must make a “sincere effort” to settle concerns during mediation.

Making a sincere effort entails examining the other party’s point of view and being open to examining solutions for settling the conflict proposed by the other party or the FDR practitioner.

When taking part in mediation, try to concentrate on what your child or children require and what is best for them. It’s frequently preferable to avoid discussing the past and instead concentrate on how you and the other person can move ahead.

What are the exceptions to this rule?

The following exclusions may be considered appropriate by the Family Court as justifications for not participating in mediation:

• if you’re requesting consent orders;
• if you’re replying to a request;
• if the issue is urgent (the Family Court will determine if the asserted reasons for the urgency are sufficient to justify an exception);
• if there has been or is a threat of domestic violence or child abuse;
• if a party is unable to participate effectively (for example, owing to incapacity or geographic location);
• if a party is unable to participate effectively (for example, due to incapacity or geographical location); or
• if a person has disobeyed and showed severe contempt for a court order issued within the past year.

What happens if my spouse or partner refuses to mediate?

If your spouse or partner refuses to mediate, or if mediation fails to settle your issue, you can receive a certificate from the FDR practitioner or mediator stating that you have requested your spouse or partner to attend mediation with you and either:

• they have declined to participate;
• the mediation did not settle the points in dispute; or
• the mediator judged that the case was not appropriate for mediation (for example, in cases involving family violence and abuse or a risk of family violence or abuse).

Who will act as a middleman?

A private mediator (a person certified and trained to conduct mediation, known as an FDR practitioner) or a government-funded organisation, such as a Family Relationships Centre, can conduct mediation.

The Family Law Act of 1975 allows only authorised FDR practitioners to issue FDR certificates (Cth).

Who goes to mediation?

Only individuals who are actively involved in the dispute will often attend mediation.

If authorisation is granted by the relevant organisation, your lawyer can attend mediation held by a private mediator with you, as well as mediation performed by a government-funded organisation.

In most cases, children are not included in the mediation process.

How long will it take to reach an agreement through mediation?

The mediation procedure (including preparation) might take a couple of weeks, or if complex, months.

Both parties meet with the mediator individually for an ‘intake session,’ often known as a ‘child-focused session.’ This helps the mediator to get a broad picture of the issues at hand and analyse any potential risks.

The mediator will determine whether the subject is suited for mediation once both parties have completed their intake sessions. A combined session is organised if the mediator believes the topic is appropriate. If the mediator does not believe the case is appropriate, the parties will be notified and an FDR certificate will be issued (if requested by a party to do so).

A ‘shuttle’ joint session is one in which the parties are in different rooms and the mediator walks back and forth between them throughout the mediation. In most situations, a ‘shuttle’ mediation is designated for those mediations where the couple refuse to meet each other face to face for whatever reason. They can be just as effective in resolving conflict as face to face mediation and often, better.

If there are issues that need to be addressed or evaluated further, more than one joint session may be held.

What is the goal of mediation?

If the parties achieve an agreement, the mediator or FDR Practitioner may help the parties document their agreement, such as by assisting in the preparation of a parenting plan that the parties can sign. This agreement can then be filed with the Family Court in the form of a consent order or a parenting order to make it legally enforceable.

If an agreement cannot be reached, a registered FDR Practitioner can issue an FDR certificate, which must be presented to the Family Court as proof that the parties made a “sincere attempt” to address their differences.

Mediation has a number of advantages, including the following:

• it is confidential;
• it is a quick and effective first step in resolving a dispute;
• if an agreement is reached, it saves them time, money, and potential stress of having to go through lengthy a Family Court trial;
• it is a more structured, dynamic and much more effective yay of dispute resolution than usual negotiation;
• it gives the parties more control over the decision – if a dispute goes to Court, the decision will be left to the judicial officer; and compliance with agreements reached through mediation is usually high.

You have everything to gain from mediation in terms of really being able to settle the underlying issues rather than going to court and having a judge make choices for you and your family. Everything spoken during the mediation is private and cannot be used as evidence in any court case, making it a secure setting.

What Should You Do Now?

At Mediations Australia, we have a team of family lawyers and mediators who can assist you in Canberra, Perth, Adelaide, Melbourn, Brisbane, and all other locations in Australia. We also do international family law matters.

What is a Restraining Order

A restraining order is a legal safeguard designed to protect individuals from potential harm, harassment, or abuse. Typically issued by courts in cases of domestic violence or stalking, these orders restrict the actions of a person deemed to pose a threat. In Australia, the terminology varies across states and territories, with ‘restraining order’ being the specific term used in Western Australia. Elsewhere, they might be known as protective orders or intervention orders, but all serve the same fundamental purpose: to provide legal protection for those at risk of harm from others.

Domestic violence is a growing problem in Australia, with one in three women experiencing physical violence in a relationship and about one in 16 men also suffering violence from their partner in a relationship.

High profile cases such as the murder of Brisbane mother Hannah Clarke and her three children by her ex-partner in 2020 have highlighted the prevalence of harmful, controlling or violent abuse of a physical, sexual, emotional, verbal and sometimes financial nature by a partner or family member.

One of the means for attempting to control the actions of a person who you fear will commit family or personal violence against you or your children is a restraining order.

This court order is also known more generally as a protective order, and by other titles in the different states and territories of Australia. In fact, in Australia, the term ‘restraining order’ is only used in Western Australia to describe protective orders both against family members and others who have – or you have good reason to believe will – commit acts of personal violence against you.

In WA these orders are known as a Family Violence Restraining Order (FVRO). Additional options include Violence Restraining Orders (VROs) and Misconduct Restraining Orders (MROs) which if made, apply to people who are not in a domestic or family relationship.

These orders may be known by other terms in other states or territories, such as a Personal Safety Intervention Order (PSIO) in Victoria or an Apprehended Personal Violence Order (APVO) in NSW.

In other places, protective orders are known variously as:

• A Domestic Violence Order (DVO) in Queensland;
• an Apprehended Violence Order (AVO) in NSW;
• a Family Violence Intervention Order (FVIO) in Victoria;
• an Intervention Order (IO) in South Australia;
• a Family Violence Order (FVO) or Police Family Violence Order (PVFO) in Tasmania;
• a Domestic Violence Protection Order (DVO) in the ACT, and;
• a Domestic Violence Protection Order (DVO) in the Northern Territory.

APVO vs ADVO: Key Differences in Protection Orders

In the Australian legal system, Apprehended Violence Orders (AVOs) serve as crucial protective mechanisms. These orders come in two distinct forms: Apprehended Domestic Violence Orders (ADVOs) and Apprehended Personal Violence Orders (APVOs). Understanding the differences between these orders is essential for both those seeking protection and those served with an order.

Defining the Relationship

The primary distinction between an ADVO and APVO lies in the relationship between the parties involved:

ADVO (Apprehended Domestic Violence Order)

• Applies to people in domestic or family relationships
• Covers current or former intimate partners
• Includes family members and relatives
• Extends to people living in the same household

APVO (Apprehended Personal Violence Order)

• Applies to people without domestic relationships
• Covers neighbors
• Includes work colleagues
• Applies to any other non-domestic relationships

Legal Grounds and Requirements

Both orders require specific grounds for application:

ADVO Requirements:

• Reasonable grounds to fear domestic violence
• Evidence of intimidation or harassment
• Proof of a domestic relationship
• Demonstration of ongoing safety concerns

APVO Requirements:

• Reasonable grounds to fear personal violence
• Evidence of stalking or intimidation
• No requirement for a domestic relationship
• Clear pattern of concerning behavior

Application Process

The process for obtaining either order varies:

ADVO Process:

• Can be initiated by police (common in domestic situations)
• Applications often processed more quickly
• Interim orders more readily available
• Strong focus on immediate safety measures

APVO Process:

• Usually requires personal application
• May need more substantial evidence
• Generally takes longer to process
• Often requires mediation before court hearing

Protective Measures

Both orders can include similar protective conditions:

• Prohibiting approach to residence or workplace
• Restricting contact and communication
• Preventing harassment or intimidation
• Establishing specific distance requirements

Legal Implications

Understanding the consequences is crucial:

For Protected Persons:

• Immediate legal protection
• Police enforcement support
• Clear documentation of protection needs
• Legal recourse if order breached

For Defendants:

• Impact on employment opportunities
• Potential firearms license restrictions
• Travel limitations
• Criminal record if order breached

Duration and Modifications

Both types of orders can be:

• Temporary (interim orders)
• Long-term (final orders)
• Modified if circumstances change
• Extended if necessary

Enforcement and Breaches

Both ADVOs and APVOs carry serious consequences if breached:

• Criminal charges possible
• Maximum penalty of 2 years imprisonment
• Fines up to $5,500
• Criminal record upon conviction

Seeking Legal Advice

Whether applying for or defending against either type of AVO, professional legal guidance is crucial:

• Understanding rights and obligations
• Navigating court procedures
• Preparing necessary evidence
• Making informed decisions about consent or contest

When are restraining orders necessary?

A restraining order becomes necessary in situations involving family violence or when an individual fears personal violence from another person. These protective measures are crucial in safeguarding individuals from potential harm and creating a legal barrier between the victim and the perpetrator.

Family violence encompasses a wide range of abusive behaviors that go beyond physical altercations. Generally speaking, family violence includes:

• Acts of physical violence against a partner or children, such as striking or pushing
• Sexual, emotional, or psychological abuse, including controlling behaviors like restricting social interactions or movements
• Any other behavior that coerces or controls a family member or causes them to live in fear, including financial abuse or technological abuse

In the context of a restraining order, the definition of a family member can be quite broad. It can include spouses, de facto partners, siblings, children, parents, grandparents, step-children, and other relatives. Additionally, it may extend to others who are in intimate or family-type relationships, recognizing that family structures can be diverse and complex.

How do I get a restraining order

When it comes to Family Violence Restraining Orders (FVROs), the court follows a specific set of criteria to determine whether such an order should be issued. The court will make such an order provided it is satisfied that the person who will be subject to its conditions meets certain requirements.

The court considers whether:

• The respondent has committed family violence against the applicant and is likely to commit family violence against them in the future
• The applicant, or those applying on their behalf (such as the police), have good reasons to fear that the respondent will commit family violence
• Children need protection from being exposed to, seeing, hearing, or experiencing the effects of family violence

The application process for a restraining order involves several steps. Initially, the applicant needs to fill out a form providing comprehensive details. This includes information about the person seeking protection, the details of the person the order is sought against, the nature of their relationship, and the specific grounds for making the application.

This application form can be obtained from various sources to ensure accessibility:

• Magistrates’ courts
• Police stations
• Online resources

Once the application is submitted, the court will set a hearing date as soon as possible. In many cases, particularly where there’s an immediate threat of harm, the court may make an interim FVRO ahead of a final hearing. This provides immediate protection while the full case is being prepared.

After an interim FVRO is issued, the respondent has 21 days to respond once they’ve been served with the order by the police. If the respondent fails to respond within this time limit, the FRVO automatically becomes final and remains in place for two years.

In cases where the person who is the subject of the order objects to its imposition, the matter will proceed to a final hearing. During this hearing, both sides have the opportunity to present their case before a magistrate. After considering all the evidence, the magistrate will decide whether to make a final order, which typically lasts for two years but can be extended if necessary.

Throughout this process, it’s important for both parties to understand their rights and responsibilities. Seeking legal advice or support from domestic violence services can be invaluable in navigating this complex and often emotionally charged process.

FVROs detail certain conditions that the respondent must observe. These conditions can be specific to the circumstances between the parties but generally speaking, include restrictions on the respondent preventing them from:

• Approaching the person who sought the order at their home or workplace;
• being at or near a certain place;
• coming within a certain distance of the person;
• contacting or trying to communicate with the person in any way, whether by text, email or letter;
• contacting or approaching any other person named in the order.

Breaching any of these conditions is a criminal offence.

A common condition allows the respondent an opportunity to collect personal items from the place they used to live or work, often in the company of a police officer.

VROs and MROs: These orders are applied for by people who are not in a domestic or family relationship but where an individual is concerned by the behaviour of another person towards them.

VROS are protective orders to prevent another person from either committing an act of abuse, breaching the peace, causing fear, damaging property or intimidating another person.

The person seeking the order must fear that an act of personal violence has been, or will be, committed by the respondent against the person.

MROs are also applied to restrain a person from either breaching the peace, causing fear, damaging property or intimidating another person, and are made when a person behaves in an intimidating or offensive manner, which may lead to a breach of the peace or damage to property.

In the case of both of these restraining orders, a first hearing can be held with or without the respondent.

In the first case, the person seeking the order may give verbal evidence or read an affidavit to the Court. An order, if it is granted, is an interim order which is then served on the respondent. The respondent has 21 days to either consent or object to the order. If the respondent consents or does not respond, the interim order becomes a final order and both parties will be notified. If the respondent objects, a final hearing date will be fixed.

Where the respondent does attend the first hearing but does not consent to the application, it will be adjourned to the next available restraining order trial date. The application may continue to be heard if the respondent does not attend the first hearing.

How do family violence restraining orders work with applications for parenting orders?

Conflict sometimes arises when one parent applies for a restraining order against the other parent in a state or territory, at the same time as they are applying for parenting orders about how children from the relationship will be raised in the Federal Circuit and Family Court of Australia (FCFCOA).

Under Australia’s Family Law Act, an application for parenting orders requires the parties to first participate in family dispute resolution to try and come to an agreement about their children.

This can be difficult or ill-advised if one parent is applying for a restraining order against the other parent, or protection orders are already in place. The FCFCOA refers to all such orders made in states and territories as ‘family violence orders’.

In this situation, a family dispute resolution practitioner may decide that mediation is inappropriate for the parents and relieve them of the obligation to allow the application to proceed to court.

In other circumstances, an exception may be made to the conditions of the protection order to allow family dispute resolution about the children to proceed. This does not necessarily mean the parties will come face-to-face in a mediation session, particularly if there is a genuine threat of domestic violence by one party towards the other, but that a process of mediation is conducted at arm’s length to try and resolve differences about the parenting of the children.

If a family violence order is in place between parents, the FCFCOA must be told about the order when parenting orders are applied for.

These types of protection orders may affect the orders the Court makes, including parenting orders relating to a child spending time with a parent or another person.

In some cases, the Court may make an order that the offending parent can only spend time with their children under supervision (by another family member, for example, or at an agreed location).

If the Court makes a parenting order that is inconsistent with the family violence protective order, it must state which part/s are different and explain exactly the conditions under which the children will spend time with the respondent.

Speak to family dispute resolution experts

For further questions or guidance on taking out restraining orders against another person as a result of a domestic or family relationship, speak with specialist family law experts to understand your rights and responsibilities.

At Mediations Australia our professionals help people during the difficult period where family and domestic violence may be present or threatened at the same time as they are seeking a way forward on the parenting of children with an ex-partner.

Maintaining personal safety while trying to reach a better, more secure place beyond the relationship can be a very challenging time. We will help you get there with the right advice, including guidance on obtaining a restraining order if necessary for your protection.

We have a team of family lawyers and mediators who can assist you in Sydney, Canberra, Perth, Adelaide, Melbourne and all other locations in Australia. We also do international family law matters.

What am I entitled to in a separation?

The most important questions you need to answer when you are separating from your partner are;

• what am I entitled to in a separation;
• how the assets will divide;
• what is the percentage of division?

In Australia when a couple separates, there can be a misunderstanding of entitlements when it comes to liabilities and assets including loans, bitcoins, mortgages, and shares. The most prevalent misunderstandings are that assets that are not owned jointly will not be part of the asset pool for division and that all assets will be divided equally.

So, if you are recently divorced or separated and want to know the answer to these questions continue reading. In this article, we are going to discuss the concerns related to a settlement when a couple are separating. We will also who is entitled to what, how the assets are settled and how you can potentially obtain more from a property settlement.

According to law, what am I entitled to in a separation in Australia?

A defined or fixed formula is not used for the determination of assets and liabilities division. The settlement and division vary from case to case and it is not fixed. It is done according to the individual facts of each family law matter and an unbiassed division is performed based on unique circumstances and references. Also, there is no predefined determination about how much property pool you will be given by the court. There is no such thing as a 50/50 automatic split.

To find out more about your question, “what am I entitled to in a separation in Australia” read these five steps taken by the family court when considering your property settlement. The family law courts in Australia apply this 5 step approach when assessing what you are entitled to in divorce settlement or de facto separation.

#1. What defines the property pool

The court will define the property pool by collecting the list of properties and liabilities. A property pool is a collection of all the assets, properties, liabilities whether owned jointly or solely by both partners. For instance, assets include houses, blocks of land, investments, bitcoin, bank accounts, businesses, any vehicle or conveyance, and shares. And liabilities include all types of loans, bank ATM cards, etc. If a partner sells an asset from the pool, it will add back into the property pool as long as such asset can be adequately traced. That is why it is better to get the property settlement done near the time of separation to minimize the risk of assets going missing.

#2. Find out the contribution of each partner in the property pool

After the determination of the property pool, the court finds out the financial contributions of both partners to the property pool. The contributions that both the parties made to the purchase and maintenance of the property. The contributions are of three types; assets owned by both partners before the relationship and the property, liabilities bought during the relationship, and the contributions from both partners after the relationship that is each party has paid since the separation date including loan repayments, credit payments, etc. This does not mean that if one party to the relationship has not been a breadwinner they will get less.

#3. Analyze whether the property settlement should be made or not?

The court then proceeds to find whether it is equitable to divide the property. There may be cases, albeit limited, where there is no need to divide the property pool.

#4. Determine whether it is important to issue orders for future needs?

Then comes the next step in which the court gauges the need for future adjustment for one or both parties. The adjustment for future needs includes the income of both parties, age, earning capacity, health, and brought up of child/children. If the court assesses that the health, age, and earnings are the same for both partners and they are at the same level, the adjustment orders for future needs are not issued.

#5. Measure the practicality of proposed property settlement

The last step is to measure the practical nature of the proposed property settlement. The court decides whether it is fair and just for that specific property settlement to occur. Moreover, a divorce lawyer can assist you in answering your question, “what am I entitled to in a separation in Australia “better than this article can. Every case is unique.

How to perform an equitable calculation for property settlement?

Here are some steps you can take in preparing your family lawyer for an initial consultation.

• List all the assets and liabilities
• Determine the contributions of both parties
• The length of the relationship
• Subtract the liabilities to determine the total property pool
• Determine the future needs of you and your former partner

Based on these steps you can obtain a rough percentage of a property settlement.

Time and requirements for the application of settlement

According to the Family Law Act in Australia, the property settlement approach in both marriage and de facto relationship is quite similar. Though there are some significant differences such as a time limit for the application process. The time to make an application for a property settlement is 1 year in the case of marriage separation. Once the divorce agreement is finalised, you need to submit your application for a property settlement within a year after the divorce.

On the other hand, you have a time limit of 2 years if you were in a de facto relationship. After the end of the relationship, you can apply for the settlement within two years. Moreover, in the case of a de facto relationship, the court proceeds on the property settlement if you satisfy the court with one of the following:

1. Your relationship span was two or more years.
2.  You gave birth to your partner’s child during the relationship.
3. You put significant contributions and support your partner through thick and thin, but the relationship failed due to the conduct of your partner or he/she cheating on you.
4. A legal record of your relationship is available or it was registered under the law of the state.

What is the rule of asset division or property settlement?

As stated previously, there is a very common misconception among people that the property and liabilities are divided among both parties by the so-called mythical 50-50 rule. In other words, the property pool is divided into two halves and both parties separate with 50% each of the pool. The court itself decides the property settlement after assessing all relevant factors, following which the court issues an order that finalizes the settlement.

The most important thing you can do prior to or following separation regardless of whether you were married or in a de facto relationship is to seek legal advice.

FAQs(frequently asked questions )

What are my entitlements when separating in Australia?

Separating from a partner can be a challenging time, and figuring out what you’re entitled to financially can add to the stress. In Australia, the process of dividing assets and liabilities during separation is called property settlement. This ensures a fair and just outcome for both parties, considering each person’s contributions to the relationship.

What’s included in the property pool:

Imagine all the financial assets and debts you and your partner have accumulated throughout your relationship – that’s essentially the property pool. This includes things you might readily think of, like:

• Real estate (house, land)
• Investments (stocks, bonds)
• Superannuation (retirement savings)
• Businesses (sole proprietorships, partnerships)
• Vehicles (cars, motorcycles)

It also includes valuable personal possessions, like jewelry or artwork. Don’t forget to factor in debts or liabilities, such as mortgages, car loans, or credit card debt.

How are assets and debts divided:

The Family Law Act 1975 sets out the guidelines for dividing the property pool. The court doesn’t simply split everything 50/50. Instead, they consider various factors to determine what a “just and equitable” division looks like for your unique situation. Here’s what they might take into account:

• Financial contributions: This includes both direct financial contributions, like who paid for what during the relationship, and indirect contributions. Did one partner stay home to raise children while the other focused on their career? Did someone contribute their skills or labor to renovate the house, increasing its value? These all count.
• Future needs: The court might consider how your future financial situation might look after separation. Factors like age, health, ability to earn income, and who will be caring for children can all play a role.
• Length of the relationship: Generally, the longer you were together, the more weight is given to contributions made during that time.

There’s no one-size-fits-all approach:

Unlike some countries, Australia doesn’t have a set formula for dividing assets. Each case is decided on its own merits. This allows the court to consider the specific circumstances of your relationship and ensure a truly fair outcome.

Getting help with property settlement:

Property settlement can be a complex process, especially if you have significant assets or have difficulty reaching an agreement with your former partner. Here’s where seeking legal advice can be invaluable. An experienced family lawyer can:

• Explain your rights and entitlements under the law.
• Help you gather and value all your assets and liabilities.
• Negotiate a fair settlement with your ex-partner’s lawyer.
• Represent you in court if necessary.

Many community legal centers also offer free or low-cost legal advice on family law matters, including property settlement. Don’t hesitate to reach out for professional guidance during this time.

By understanding the principles of property settlement and seeking legal advice if needed, you can navigate this process with more clarity and confidence, ensuring you receive a fair and just outcome.

Does a husband have to support his wife during separation in Australia?

Australia’s Family Law Act 1975 permits for the possibility of spousal maintenance after separation, meaning a husband may be ordered to financially support his former partner depending on the unique circumstances of their case.

Spousal maintenance orders issued by a court require one party to make regular payments to cover reasonable living expenses of their ex-spouse, when there is a significant disparity in income or resources between both of them. Such orders usually become effective following separation.

Several factors are taken into consideration when determining whether spousal maintenance should be awarded and, if so, the appropriate amount and duration. These factors include:

1. Income and Earning Capacity:

• Current Income: This includes salaries, wages, income from investments, and any government benefits received.
• Future Earning Potential: The court doesn’t just look at the present. They consider age, qualifications, work experience, and future job prospects. For example, a younger spouse with a professional degree might have a higher earning potential than an older spouse with limited work experience, even if their current incomes are similar.
• Impact of Separation on Earning: Did one spouse give up career opportunities to support the other during the marriage? For example, a wife who stayed home to raise children might have a lower earning capacity after separation compared to a husband who focused on his career advancement. 

2. Financial Resources:

• Assets: The court will evaluate the value of all assets owned by each spouse, including real estate, vehicles, investments, and superannuation (retirement savings). 
• Debts and Liabilities: Don’t forget about debts! The court will consider outstanding mortgages, car loans, credit card debt, and other financial obligations. These can affect a person’s ability to pay or receive spousal maintenance.
• Inheritances or Gifts: Any recent inheritances or gifts received by either party might also be considered as part of their overall financial resources.

3. Reasonable Living Expenses:

• Standard of Living During Marriage: This includes housing costs, transportation, food, clothing, entertainment, and any other expenses considered essential to maintain a reasonable standard of living.
• Special Needs: These additional costs will be factored into the equation to ensure both parties can maintain a basic but comfortable lifestyle after separation.
• Location and Cost of Living: The cost of living can vary significantly across different regions in Australia. The court will consider the location where each spouse resides when determining reasonable living expenses.

4. Age and Health:

• Age: A younger spouse might have more time to retrain, re-enter the workforce, and achieve financial self-sufficiency compared to an older spouse nearing retirement.
• Health: A chronic health condition or disability can significantly impact a person’s ability to work full-time or secure employment with a high income.

5. Caregiving Responsibilities:

• Primary Caregiver: If one spouse is the primary caregiver for children or other dependents, their ability to earn an income might be limited. Spousal maintenance can help compensate for the financial strain associated with childcare costs and maintaining a household while managing these responsibilities.
• Impact on Future Earning: The court might consider the long-term impact of caregiving responsibilities on a spouse’s future earning potential.

Note that spousal maintenance orders are not permanent and should be reviewed periodically or when circumstances significantly alter, usually once every few years or whenever circumstances require such review. The court strives to foster financial independence and self-sufficiency over time for both parties involved in an order.

If you are seeking spousal maintenance or are uncertain of your obligations, consulting with a family lawyer or legal aid service would be highly advisable. They can assess your specific situation and recommend the most effective strategy to protect your rights and interests during the separation process.

Who pays bills during separation in Australia?

During a separation in Australia, both parties are generally expected to contribute to the ongoing household and personal expenses based on their financial capabilities and any agreements reached between them. However, the specific arrangements for paying bills can vary depending on the circumstances of each case.

Here are some common scenarios and considerations regarding bill payments during separation:

• Shared residence: If both parties continue to reside in the same property during the separation, they may agree to share the household expenses, such as mortgage or rent payments, utilities, groceries, and other shared costs. This arrangement can help maintain stability and ensure that essential bills are paid while the separation process unfolds.
• Separate residences: If one party moves out during the separation, they may be responsible for their personal living expenses, including rent, utilities, and other costs associated with their new residence. The other party may continue paying the bills for the shared residence, or they may agree to split certain expenses based on their respective financial situations.
• Child-related expenses: If there are children involved, the court may issue orders or the parties may agree on arrangements for sharing expenses related to the children’s care, such as childcare costs, education fees, medical expenses, and extracurricular activities.
• Interim spousal maintenance: In some cases, where there is a significant disparity in income or financial resources, the court may order one party to pay interim spousal maintenance to the other during the separation period. This can help cover living expenses and bills for the lower-earning or financially dependent party.
• Agreements and consent orders: Separating couples can also choose to formalize their arrangements for bill payments through legally binding financial agreements or consent orders. These documents outline the specific responsibilities and obligations of each party regarding expenses and can be enforced by the court if necessary.

Note that when making decisions regarding financial arrangements during divorce and separation, courts prioritize meeting reasonable living expenses for both parties involved and any children that may be present. They may take contributions and future needs into consideration when making decisions related to bill payments and other financial obligations.

If you ever find yourself confused regarding bill payment during separation, seeking legal advice from either a family lawyer or community legal center could prove useful in providing tailored guidance based on your unique circumstances to assist in managing this process more smoothly.

Who pays for a divorce in Australia?

In Australia, the party initiating the divorce proceedings is generally responsible for paying the associated costs, including court fees and legal expenses. However, there are various factors that can influence who ultimately bears the financial burden of a divorce.

• Court fees: The party applying for the divorce (the applicant) is required to pay the court filing fee, which is currently $940 for a divorce application without any other accompanying applications (as of 2023). This fee must be paid when submitting the divorce application to the Federal Circuit and Family Court of Australia.
• Legal fees: If the parties choose to engage legal representation, they will be responsible for paying their respective lawyers’ fees. Legal fees can vary significantly depending on the complexity of the case, the experience of the lawyer, and the amount of work required. Some lawyers may offer fixed-fee packages or unbundled services to help manage costs.
• Shared costs: In certain circumstances, the court may order that the costs of the divorce proceedings be shared between the parties. This can occur when there are contentious issues or disputes that increase the complexity and duration of the case, resulting in higher legal expenses for both parties.
• Property settlement orders: In some cases, the court may include provisions for the payment of divorce costs as part of the overall property settlement orders. This can involve one party being required to contribute to or reimburse the other party’s legal expenses related to the divorce proceedings.
• Legal aid and pro bono services: For individuals with limited financial means, there may be opportunities to access legal aid or pro bono (free) legal services. These services can help mitigate the costs associated with a divorce, although eligibility criteria and availability may vary based on location and individual circumstances.

It’s important to note that the costs of a divorce are separate from any property settlement or spousal maintenance proceedings that may occur as part of the separation process. These additional legal proceedings can incur further expenses, which are typically borne by each party individually or allocated based on court orders or mutual agreements.

If you are considering divorce and have concerns about the associated costs, it’s advisable to consult with a family lawyer or legal aid service. They can provide guidance on managing expenses, exploring cost-effective options, and ensuring that your rights and interests are protected throughout the process.

Who gets to stay in the house during separation in Australia?

In Australia, when a couple separates, the decision of who gets to stay in the family home during the separation period can be a complex and sensitive issue. The court’s primary concern is to ensure the best interests of any children involved and maintain a stable living environment for them. Several factors are considered when determining the living arrangements during separation.

• Children’s best interests: If there are children involved, the court will prioritize their well-being and aim to minimize disruptions to their living situation. The parent who has primary caregiving responsibilities or the one who can provide a more stable and consistent environment for the children may be granted temporary occupancy of the family home.
• Financial contributions: The court will consider the financial contributions made by each party towards acquiring and maintaining the family home. The party who has made significant financial contributions or has a greater ownership stake in the property may have a stronger claim to remain in the residence during the separation.
• Domestic violence considerations: If there are allegations or evidence of domestic violence or abuse within the relationship, the court may grant exclusive occupancy of the family home to the victim and restrict the perpetrator’s access. This is done to ensure the safety and wellbeing of the affected party and any children involved.
• Interim orders: The court can issue interim or temporary orders regarding the living arrangements during the separation period. These orders are intended to maintain the status quo and provide stability while the parties work towards a final property settlement or parenting arrangements.
• Mutual agreements: In some cases, separating couples may reach a mutual agreement regarding who will remain in the family home during the separation period. These agreements can be formalized through consent orders or legally binding financial agreements, which can then be enforced by the court if necessary.
• Alternative arrangements: If neither party can remain in the family home due to financial constraints or other reasons, the court may consider alternative living arrangements, such as one party residing with family or friends, or both parties finding separate rental accommodations until a final property settlement is reached.

Note that decisions regarding living arrangements during separation should not be seen as definitive and could change as circumstances evolve or parties move closer towards reaching an ultimate property settlement agreement.

If the living arrangements of your separation are contentious or unclear, it would be wise to consult a family lawyer or community legal center for legal advice. They can advise on your rights and options while advocating on your behalf for optimal outcome while prioritizing any children involved.

Ultimately, the court strives to ensure that separating couples and their children have access to stable living arrangements during their separation period that meet both individual circumstances and contributions of each case.

What Should You Do Now?

At Mediations Australia, we have a team of family lawyers and mediators who can assist you in Canberra, Perth, Adelaide, Melbourne and all other locations in Australia. We also do international family law matters.