Family Law Parenting
“If my partner/spouse and I have separated, does that mean we have to have 50/50 time with the children?”
No. Sometimes an arrangement where children spend equal time between separated parties’ houses works well for the children. Sometimes it doesn’t. Every case is different, and every child is different. What works well for one child and their family may not work for another. Many separated parties are able to work out an arrangement between themselves which is best for the children and which they are both happy with. If, however, you and the other party are unable to agree on what kind of time your child or children should spend with each of you, you should seek legal advice as soon as possible. Many matters are able to be resolved through formal mediation. If you are eligible for legal aid, your lawyer may suggest you participate in VLA’s Family Dispute Resolution service. If you are a fee-paying client, your lawyer will suggest you attend a mediation through another service such as Relationships Australia or a Family Relationship/Mediation Centre. Not only is mediation an effective way of assisting you and your family in negotiating an arrangement that is best for the children, but the Family Law Act 1975 says that, except for in certain situations (such as urgency, allegations of child abuse or allegations of serious family violence), a party is not permitted to go court until they have tried mediation through an accredited mediator. If your matter goes to court, the Judge must look at what is in the best interests of the children, as the paramount consideration. The law in this area is contained in the Family Law Act 1975 and the Family Law Amendment Act 2023 which came into effect on 6 May 2024. For the new legislation detailing the factors which the court must take into account when looking at the child’s best interests, refer to the Family Law Amendment Act 2023, Schedule 1, Part 1, paragraph 6 which amends the old s60CC of the Family Law Act 1975.
“My ex has taken my child and will not give them back – what do I do?”
If the person who has taken the child is a parent of the child, and if you do not have a Family Violence Intervention Order against that parent, it is unlikely that the police will be able to assist – even if there is a parenting order in place (from the Family Court or the Federal Circuit Court). In that situation you must obtain an appointment with a family lawyer as a matter of urgency. A family lawyer may be able to make an urgent application to a relevant court asking that the child be returned. If, however, the person who has taken the child is not a parent of the child or if they are the child’s parent but you have a Family Violence Intervention Order against them, telephone the police immediately and notify them about what has happened - then obtain an appointment with a family lawyer.
“Do I have to wait until I have separated from my partner before I get legal advice?”
No. Seeking legal advice, even if you are only considering separating from your partner, can provide you with information so that you can discuss separation with your partner in an informed way, or allow you to take steps to separate from your partner in a way that is best for you and your children.
“I am scared of my partner/spouse or ex-partner/ex-spouse – what can I do?”
You do not need a lawyer to apply for a Family Violence Intervention Order against some who is causing you to fear for your safety or the safety of a member of your family. You need to attend at the registry of your local Magistrates Court and complete an application form asking for a Family Violence Intervention Order. The law around family violence intervention orders is contained in the Family Violence Protection Act 2008 and can be found here: http://www6.austlii.edu.au/cgi-bin/viewdb/au/legis/vic/consol_act/fvpa2008283/
A copy of your application will be served on the other party by the police, and both parties must attend at that court on the date provided. When you are at court for the hearing, you should put your name on the duty lawyer list at the registry so that you have some legal advice on the day. Not everyone qualifies to be represented by the duty lawyer on the day, but it is worth asking. If you are able to pay a private practitioner to represent you on the day, you may do so. If you fear for your safety throughout this process, you need to let the Registrar at the court know, you should tell the police and you should also seek family law advice. Whilst obtaining an Intervention Order can assist you to stay safe, it is often necessary that other issues such as divorce, children’s issues or property need to be sorted out so that you and your family are able to move forward.
Family Law Property
“I looked after the kids/kept the house and my partner earned the money. What does that mean in a property settlement?”
In most circumstances, the Family Law Act 1975 treats contributions to the marriage or relationship as equal, whether those contributions are financial or domestic. You should still seek legal advice even if you have not been an income earner in a relationship.
“The house is in my partner’s/spouse’s name, what does that mean in a property settlement?”
Just because a property is in one person’s name and not in joint names, does not mean that the partner/spouse of that person does not have a claim to that property. What it does mean is that the person in whose name the property is, may be able to sell or refinance that property without the consent of their partner/spouse, in which case it is recommended that legal advice be sought urgently as there are steps that can be taken to prevent that from happening.
Child Protection — Department of Health and Human Services (DHHS)
“A case worker from the DHHS has spoken to me about concerns they have regarding my children – what do I do?”
You should seek legal advice as soon as possible. The law governing child protection in Victoria is the “Children Youth and Families Act 2005”. A link to that legislation is provided here: http://www6.austlii.edu.au/cgi-bin/viewdb/au/legis/vic/consol_act/cyafa2005252/. The law is complicated and it can be difficult to understand your rights as a parent or a young person. If a child protection matter goes to court, each party has a right to legal representation including children who are 10 years of age and over. Anyone involved in child protection proceedings at court should seek legal advice urgently so that they understand the process and what their rights are. If you are at court for a court hearing and do not have a lawyer, you should speak to the DHHS case worker and the registry and make it clear that you do not want your case to be heard until you have a lawyer.
Family Violence Intervention Orders (IVO’s)
“I want the protection of a family violence intervention order but I still want my ex to see the children”.
Not all family violence IVO’s are the same. Each IVO has conditions which can be drafted to suit your particular circumstances. You are able to have a family violence IVO in place against someone which contains conditions and exceptions that still allow that person to spend time with you or your children (or both). You may also of course ask for an order which allows no time at all.
“I have a family law parenting order and also a family violence IVO in place – which one prevails?”
The answer to this question is not always a simple one. Where there are parenting orders in place under the Family Law Act 1975 and there is also a family violence IVO in place, then as long as the IVO contains the necessary exceptions, both orders can exist together at the same time. That means that the IVO can be in place for the protection of the affected family members, but the respondent can still do anything they are able to do under the family law parenting order. There are some circumstances however which can make the relationship between a family violence IVO and another order, more complicated. Considering that a breach of a family violence IVO is a criminal offence with serious penalties, you should seek legal advice about how that IVO relates to any other orders that may be in place.