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Do I Really Need Family Court Orders?


Separating from a partner can be daunting and often people do not know the necessary steps to take when they are trying to navigate the separation of assets, and making arrangements for their children.

Often people are bombarded with opinions from friends and family about what they should do and do not know where to start.

Everyone’s circumstances are different and each person’s family law matter will not progress in the same way.

We are often asked whether Family Court Orders are even necessary to finalise a family law matter.

First of all, you need to consider the time limits for financial matters. If you were married, you have one year from the date of Divorce to make an Application to the Family Court. After the year has passed, you will need to seek leave of the Court for your Application to be heard. This is then at the Court’s discretion. If you were in a defacto relationship, you have two years from the date of separation to make an Application to the Family Court.

We often see married couples waiting long periods of time, such as 10 years, before deciding to finalise their financial matters and apply for a Divorce. This will often result in the property pool (assets and liabilities of each party) being vastly different to what it was at the time of separation.

For example, at the time of separation, the wife and husband jointly owned a home, had a small amount in superannuation and each had a vehicle in their own name. 10 years later, the wife purchased another home in her name, the husband’s superannuation increased substantially and they each now own shares in their own names. Regardless that they have been separated for 10 years, the Wife’s new home, the Husband’s superannuation accumulated after separation and the shares in each party’s name forms part of the property pool to be considered by the Court and divided among the parties.

In a defacto relationship, the parties may have been separated for one year with no final Orders or Binding Financial Agreement in place. One party may win the lotto. The other party can then apply to the Court for financial matters, as they are within the two year time period. Those lotto winnings will then form part of the property pool and the party’s interest in the property will be altered if the Court deems it fair and equitable.

In the case of financial matters, it is often wise to resolve your financial matters at the time of separation and document the agreement by way of Court Orders or a Binding Financial Agreement. However, this is not a blanket rule and one of our Family Lawyers will be able to talk you through your best options.

Children’s matters are often not so straight forward. There are no time limitations to make an Application to the Court.

In parenting matters, it is compulsory to attempt to mediate before initiating proceedings in the Family Court, unless the parties are exempt.

Often at mediation, parents will make a parenting plan or parenting agreement. Should one party breach the parenting plan, the other may apply to the Family Court for parenting Orders. The Court may then consider the parenting plan, but it is not binding. Therefore, if you are able to come to an agreement at mediation, we suggest you see a lawyer, so they may draft the agreement in the form of Consent Orders and file them in the Court. If one party then breaches the Orders, the other party is able to make an Application to the Court for either enforcement or contravention of those Orders.

It should be noted that parties do not need to attend Mediation to file Consent Orders in the Court. If you are able to agree about the arrangements for your children, you can file Consent Orders at any time to finalise your children’s matter.

However, in some circumstances, Consent Orders or initiating proceedings may not be suitable. For example, if one party has been the primary carer of the child and the other party has not been present since the child was born, or requested time with the child, and there are risk issues if that parent was to spend time with the child. This may be a case where no steps should be taken until the non-caring parent attempts contact.

However, not every case is the same and our team of family lawyers can help you assess the best steps to take.

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Monday, 16 May 2022