Family Lawyers 
Toowoomba

If you have just separated, there are few important things you will need to consider. These include:

1. If you have children under the age of 18, what should happen with their parenting, living arrangements, and their support? How can you and your former spouse create an amicable co-parenting relationship that meets the needs and best interests of the children?
2. What should happen with any jointly owned property or debts, and how can you safeguard your future financial security?

3. If there has been any domestic or family violence, what protection do you need for yourself and/or your children?

You should also identify your support network – those people and professionals who will guide and assist you through the separation. These can be lawyers, accountants, your GP, counsellors/psychologists, friends and family.

While the idea of consulting a Toowoomba family lawyer may be daunting, this is an important first step because they will help you to understand the legal implications of your separation and assist you to create an action plan for meeting your needs and obligations with regard to the issues above, empowering you to take control of the situation.

Before applying for a divorce, it is a requirement that you and your former husband/wife have been separated for a period of at least 12 months. However, that this does not necessarily mean you have been living in separate households for 12 months. It may be, for example, that you and your partner separated, but continued to live under the one roof for a period of time. This is commonly referred to as “separation under the one roof”. If this is the case, it will be necessary to file an affidavit of yourself, and possibly other family members and/or friends, which contain evidence that supports that you and your partner have, in fact, been separated and lived separate lives per se for a period of at least 12 months.

The overarching aim of property settlement is for separating spouses to extricate themselves from each other financially, insofar as that is possible.

There are some financial obligations, however, which may be ongoing depending on your personal circumstances and that of your spouse and any children of the relationship.

In some cases this can include an obligation to pay spousal maintenance. (Child support is a separate issue to the question of support for a spouse by way of spousal maintenance.)

Spousal maintenance is financial support paid by a party to the relationship to their spouse (or ex-spouse) so that they can adequately support themselves. The court can order spousal maintenance to be paid periodically for a specified time frame, or in a lump sum, depending on the circumstances. The obligation can arise for parties who were married and for de facto spouses.

Any obligation to provide ongoing financial support to your spouse after separation will depend on a variety of factors, including each party’s income, their reasonable ongoing expenses and needs, the assets they will retain after separation, and their care and support of children of the relationship.

There is no automatic right to ongoing maintenance. The party seeking spousal maintenance must show they are unable to adequately support themselves, and that the other party is reasonably able to provide them with support. Generally, an obligation will only arise where there is significant disparity in income earning potential of the parties.

The courts are not limited in what they can consider and have a very wide discretion. Some of the factors that will be considered include:

• the care and control of the children under the age of 18 years;
• the age and state of health of the parties;
• the capacity for gainful employment;
• the income, property and financial resources of each of the parties;
• the commitments of each of the parties to support themselves and other persons;
• the eligibility of the parties for a pension, allowance or benefit;
• a standard of living in all the circumstances that is reasonable;
• whether payment would increase the earning capacity of the other party;
• the rights of any creditors;
• any contribution to the income, earning capacity, property and financial resources of the other party;
• the duration and impact of the marriage on the parties;
• the nature of cohabitation with any other person;
• the terms of any property settlement;
• the child support payable and being paid;
• the terms of any binding financial agreement;
• any fact or circumstances in the opinion of the court that the justice and equity of the case requires to be taken into account.

Yes. In some circumstances you may need to formalise your agreement with an appropriate document, but that does not necessarily mean that you need to go to court.

An agreement about parenting arrangements for children does not need to be formally documented. If, however, you would like to have a formal arrangement in place for your children, we can assist you with a parenting plan or orders in relation to your children. Both documents can be effective and neither necessarily requires that you go to court. Whether a parenting plan or an order is best suited to you and your family will depend on your particular circumstances, so it is always best to get legal advice prior to proceeding with either document.

An agreement in relation to property settlement matters should usually be formally documented even if you have reached an amicable agreement with your partner. Again, however, that does not mean that you need to go to court. We can assist you to document your agreement in a financial agreement or an order. Your goals and your particular circumstances will influence our advice as to which document is most appropriate.

If possible, try to come to an agreement with your former partner. If you can agree, then write this agreement down. This can agreement can form a “parenting plan”.

A parenting plan is a written agreement, signed and dated by both parents, or people involved. It is best to get legal help if you have children under 18 years.

No. If you can agree on care arrangements for the children after you have separated, you do not need to go to court. However, if you want the agreement to be legally enforceable, you can apply to the court for orders by agreement. These are called consent orders.

The family law system encourages people to try to agree, if they can. Family dispute resolution can be cheaper than going to court, and more flexible.

If you and your former partner cannot agree as to the care arrangements for the children, you can apply to the court for a parenting order. You will have to attempt family dispute resolution before you apply for a parenting order, although there are some exceptions to this.

A parenting order can set out where the children live, who they have contact with, and other issues such as where they will go to school. The court’s main concern is for the children. The court will decide what is in the children’s best interests and will consider the children’s views. You will have to go to a court hearing if both parties cannot agree.

No. The Family Law Act applies to all children of all relationships.

Parents (including same-sex parents), grandparents or anyone concerned about a child’s welfare can negotiate parenting plans or apply for parenting orders.

Yes. Where it is in the children’s best interests, grandparents and extended family can be included in family dispute resolution, parenting plans or court orders.

There are no set rules about the time children spend with their parents after separation, and there is no presumption that children will spend equal time with both their parents.

The Family Law Act requires that when making decisions about a child, their best interests are to be regarded as the paramount consideration. In determining what is in a child’s best interests, currently our legislation emphasises the concept that children benefit from a meaningful relationship with both of their parents, provided this does not put children at risk of harm. The law therefore requires parents and courts to consider children spending as much time as possible with each parent as is consistent with their safety.

If your children do not live with you, generally, and unless there are grounds to believe that a parent has engaged in family violence, a court will consider whether the children spending substantial and significant time with you is in their best interests and reasonably practicable.

Substantial and significant time generally requires the child to spend time with the other parent on weekdays, weekends and holidays, and for that parent to be involved in the child’s daily routine and occasions / events that are of particular significance to the child.  Reasonable practicability refers generally to the capacity to implement such arrangements and its impact on the child.

If both of those conditions are not satisfied, the court can then make any order that it considers appropriate and in the best interests of the children.

Ultimately, how often you see your children if they do not live with you will be determined by a number of matters. We invite you to contact one of our specialist Toowoomba family lawyers to discuss how these matters might be assessed in your circumstances.

Both parents have an obligation and a duty to continue supporting their children post-separation. This is regardless of whether the children live in an equal time arrangement, whether they live primarily with you, or whether they spend time with you and live with the other parent.

Notwithstanding the time arrangements that are in place for children post-separation, each parent has an obligation to make day to day decisions and arrangements for the children whilst they are spending time with them.

With regard to the financial support of the children post-separation, both parents have a duty to financially support children under the age of 18. Arrangements for financial support of children post-separation are governed by Services Australia (the government agency responsible for assessing, collecting and transferring child support payments). Alternatively, parents can reach their own agreement in relation to the financial support of the children post-separation.

A birth certificate is the official record of a child’s name. In Queensland, all births must be registered in the Queensland Registry of Births, Deaths and Marriages and, once registered, you will be issued with a birth certificate.

Usually, parents can agree on the name recorded on the birth certificate, but if you can’t agree, or you want to change your child’s name at a later stage, there are legal options available.

To officially change a child’s name on their birth certificate, both parents must apply to the Registry of Births, Deaths and Marriages. In Queensland, this can be done if the child’s birth (or adoption) was registered here, or if your child was born outside of Australia, but now lives in Queensland. If their birth is registered in another Australian state, you’ll need to contact that state’s registry.

The following limits apply for changing your child’s name:

• first names – once in the first 12 months after birth and then once before the child reaches 18;
• surname – once every 12 months.

If you’re the only parent shown on the birth certificate, or if the other parent is deceased, you can change the name in the registry on your own.

It is not illegal to start using another name for your child without officially registering the name change unless a court has ordered the child be known by a specific name.

A child’s name is one of the important issues parents are expected to agree about.

If no agreement can be reached between the parents as to a change of name then you will need to make application to a court to determine the issue.

If there are family law proceedings currently before the Federal Circuit Court or Family Court of Australia, you can apply to that court to change your child’s name or for a decision about what name can be used.

If, however, there are no ongoing family law proceedings you should seek advice from an experienced Toowoomba family lawyer as you will need to consider the nature of the application and what court, whether in a federal or state jurisdiction, is more appropriate.

After separation there are a number of ways your property may be divided. You and your former partner may be able to agree some or all matters yourselves. Others may require the assistance of solicitors or a mediator to help facilitate discussions in order to reach an agreement. In some circumstances, an application to, and determination by, the Federal Circuit Court or Family Court may be required.

There are very few absolutes in determining what a fair property settlement may be in each case. The process itself, however, generally follows the pathway set out under the Family Law Act, which provides for:

1. identification of the asset pool, that is, the assets, liabilities and superannuation forming part of the property pool;
2. consideration of the relevant contributions (that is, financial, non-financial, parenting and home maker) at the commencement of and during the relationship;
3. consideration of the discretionary future needs factors under relevant provisions of the Act; and
4. arriving at an outcome which is just and equitable (fair) in the circumstances.

How the combination of factors and circumstances specific to your relationship will impact on a fair property settlement are best addressed with one of our experienced divorce lawyers in Toowoomba. There are also time limits to consider and we recommend obtaining advice about those matters at an early stage to ensure your rights are protected.

If you are just starting out in a relationship or have significant assets that you wish to protect in the event of separation there are also planning types of financial agreements which can be prepared to give effect to any agreement you may reach with your partner before, during or after the end of the relationship.

We can also assist you to ensure that any agreement you have reached directly with your former partner can be documented in a legally binding way to ensure that each of you have certainty moving forward safe in the knowledge that the other party cannot seek to revisit an agreement at a later time.

Under the Family Law Act, any application for property settlement or spousal maintenance must be filed within 12 months of the date of your divorce becoming final. For de facto relationships, any application for property settlement or spousal maintenance must be filed within two 2 years of the date of your final separation.

If you wish to file an application for property settlement or spousal maintenance outside of these time periods, you must first seek the leave (permission) of the court to file the application, which is not always guaranteed and may be costly. The court will usually only grant leave to apply outside of the time limitation if they are satisfied that either hardship will be caused to the applicant or a child, or the applicant would be unable to support themselves without some form of income or allowance. You must also provide the court with reasons as to why you did not make an application prior to the time limitation. Ultimately, the court has wide discretion for granting this permission to apply out of time.

We recommend that you apply sooner rather than later to avoid this uncertainty and potentially expensive process.

You are always legally entitled to use the name on your birth certificate, whether you are married, separated or divorced. You only “lose” the right to revert to your maiden name if there was a need to change your name by formal registration (often called “deed poll”) in order to effect the change (something routinely required where marriage has taken place overseas). A formal name change will be required in that instance to revert to your maiden name.

Where you have simply assumed your married name (which occurs in the majority of cases), you can revert to your maiden name prior to divorce with the use of your birth certificate and marriage certificate (documents which effectively establish the origin of the previous name change and the basis for the reversion). There may be some institutions that will require a divorce order before facilitating any change, but the Australian Passports Office, Medicare and Queensland Transport will not require proof of divorce. As three core identifying documents, most other institutions will thereafter alter your name on their records upon production of your passport, drivers licence or Medicare card (or alternatively simply your birth certificate).

There are some very good reasons for retaining a married name and, equally, for resuming your maiden name. Ultimately, the decision is a personal one.