LEGAL SERVICES
Welcome to our Family Law Services page, where we offer expert legal guidance and support to help you navigate the complexities of family matters with confidence and peace of mind.
Separation and Divorce
Though separation and divorce are terms that commonly seem interchangeable, there is a clear distinction when used in family law.
Separation occurs when partners cease to live together as a couple or engage in a marriage-like relationship, while divorce is the formal legal termination of a marriage. Separation may come in forms such as a change in sleeping arrangements, notification to family and friends of separation, and division of finances. While partners do not need to agree to separate, or require any legal processes, divorce necessitates an order of the Federal Circuit and Family Court of Australia to be recognised.
A divorce order is a legal document issued by the Court that officially ends a marriage. It serves as proof that a couple is no longer legally married and is typically granted after a court determines that the necessary legal requirements for divorce have been met. Under the Family Law Act 1975 (Cth), the Court must be satisfied that a married couple have been separated and have lived apart for at least 12 months. The divorce order is ultimately granted on grounds that the relationship has broken down irretrievably and there is no possibility for future cohabitation.
Alternatively, annulment happens when a judge decides that there was no legal marriage. If you believe that your situation is not complex, and that you are eligible to do so, you can apply to get divorced online. Often, you may find that you and your spouse may not have shared goals in relation to divorce. Canterbury Family Law can offer you legal advice so that you can make informed decisions on how best to deal with such matters.
Depending on your situation, you might be considered separated under one roof - this means you and your spouse have separated but still live in the same home. If you wish to file for divorce while still living together, an affidavit is also required. An affidavit is a written statement created by a party or witness to provide evidence to the court, demonstrating a change in the marriage and explaining the reasons for the couple's separation. We can help you gather the relevant documents you may need for the affidavit so that your divorce application runs smoothly.
Whether a couple is separated, divorcing, or having their marriage annulled, matters related to children or property require separate arrangements. The Court needs to be satisfied that proper arrangements have been made for the care, welfare and development of any children of the marriage who are under 18 years of age before a divorce order is granted. The law encourages couples to use family dispute resolution to reach a quicker, cheaper, and more amicable outcome than going to court. However, this may not be possible if you believe that: you or your children’s safety is at risk; if you or your partner’s decision-making is affected; if there is an intervention order in place; or if the situation is extremely urgent. We understand the emotional turmoil, change, and uncertainty that couples face during these challenging times. We are fully equipped to create a solution tailored to meet both your current and future needs.
If there has not been a joint application and only one party has applied for divorce, they will be required to serve the divorce papers to the other party. If you have filed a sole application for divorce and there is either: a child under 18 at the time of filing; if either party objects to the divorce being heard without them; or if the respondent files a Response to the divorce opposing the application, the applicant will need to appear in court.
A Response to Divorce is a formal document filed by the respondent (the person who is not the applicant in the divorce case) to express their views on the divorce application. This response might include reasons for opposing the divorce, or it could address other issues such as arrangements for children or property. If the respondent disagrees with the divorce or any aspect of the application, they submit this response to the court.
When the divorce is granted by the court, it becomes final one month and one day after the hearing, and will be noted by the Registry Manager of the Court. From the date the divorce becomes final, parties will have 12 months to apply for a property settlement. Property settlement is the legal process of dividing the assets and liabilities between the two parties, which includes the distribution of property such as homes, cars, savings, investments, and any debts. Property settlements can be negotiated by the parties involved or, if necessary, determined by the court.
The process of separation and divorce may not always involve lengthy legal procedures, but at Canterbury Family Law, we are committed to providing the support you need. Whether you seek a swift resolution, expert advocacy, or a clear understanding of your legal rights and responsibilities, we are here to assist you every step of the way.
Property Negotiations
Most couples going through separation and/or divorce will need to divide their assets, liabilities and superannuation entitlements. The Federal Circuit and Family Court of Australia generally applies a four-step process to determine the appropriate adjustment of property interests between married or de-facto couples whose relationship has irretrievably broken down. Our experienced family law practitioners will guide you through this process and advise you of the likely range of outcomes in your case.
The first step is to determine the total value of the assets, which may include the family home, investment properties, business interests, shares, savings, vehicles, and superannuation, as well as any debts like home loans, investment loans, credit cards, and business debts. If you and your former partner cannot agree on the value of certain assets, such as real estate or business interests, Canterbury Family Law can connect you with professionals who can provide accurate valuations. Both parties will also need to exchange documents to identify the assets available for division.
After determining the total value of assets, each party’s contributions are assessed and assigned a percentage. These contributions include financial support (before, during, and after the relationship) as well as non-financial efforts like parenting and homemaking. One party may receive a higher percentage based on future needs, which consider factors such as age, health, and earning capacity.
The Court, or a legal practitioner assessing your rights under the Family Law Act 1975 (Cth) will determine whether the percentage division of the asset pool is just and equitable in all the circumstances of your relationship. This determination will draw on factors like the length of the relationship, whether you have any children together, and the extent to which you and your former partner shared your finances.
At Canterbury Family Law, we assess your situation based on your instructions and provide a range of likely outcomes early in the process. Our goal is to work collaboratively with you to achieve a fair and efficient resolution that falls within this range, ensuring the process is as timely, cost-effective, and amicable as possible.
In most cases, going to court is not required. Our family lawyers only pursue court proceedings when it provides a strategic advantage, is necessary due to time constraints, or is a last resort. Instead, disputes can often be resolved through direct negotiation, solicitor correspondence, mediation, conciliation, or other family dispute resolution methods—avoiding the need for litigation.
Once an agreement is reached, we will formalize the terms through either Consent Orders (legally binding court-approved agreements that formalize arrangements for property division, parenting, or other family law matters without the need for a trial) or a Binding Financial Agreement (a private contract between parties that sets out how assets and finances will be divided, without requiring court approval), depending on what best suits your situation. If court action becomes necessary, we are fully prepared to advocate for you, drawing on our extensive experience and professional network to secure the best possible outcome for you and your family.
Child Support
Rather than through the Federal Circuit and Family Court, child support and child maintenance is often dealt administratively through Services Australia (Child Support) and governed primarily by the Child Support (Assessment) Act 1989 (Cth).
Child support covers financial assistance for raising children under 18, while child maintenance applies to adult children over 18. Both are crucial in separation or divorce, as all parents—biological, adoptive, or same-sex—are responsible for providing adequate financial support.
Parents who prefer to manage child support themselves can use the basic formula on the Services Australia website to estimate the amount payable. For those who do not wish to self-manage, Services Australia can conduct a child support assessment to determine who should pay and how much. After the assessment, payments can be transferred privately between parties or handled through Services Australia.
Depending on your circumstances, it may be easier and more convenient to have Services Australia manage payments—particularly when dealing with non-carers, second families, or a parent living overseas. These complex situations may also require legal advice, and at Canterbury Family Law, we’re well-versed in the options and considerations relevant to your situation.
When deciding who pays child support, Services Australia compares each parent’s share of care to their share of combined income. If a parent cares for the child less than their income share, they will usually pay child support. If they care for the child more than their income share, they may receive support. Only the parents’ incomes are considered—income from non-parent carers is not included.
A non-parent carer is a person who is not the parent or a partner of a parent, and is looking after the child at least 128 nights of the year. They could be a grandparent, legal guardian or other family member. In some situations, child support may be paid by one or both parents to the non-parent carer.
The amount of child support is not the same for everyone. Services Australia considers each parent’s income, their combined income, the amount of care each parent provides, and the child’s age to calculate the cost of raising the child. Changes in either parent’s financial situation can also affect the support amount.
After a child support assessment, parents or carers may choose to make a formal child support agreement—either a limited or binding agreement.
A limited child support agreement is an enforceable arrangement that does not require independent legal advice and allows more flexibility.
A binding child support agreement is more formal and restrictive. It does require both parties to receive independent legal advice and is harder to change once in place.
Services Australia also considers factors outside your control, such as average child-rearing costs in Australia and annual updates to child support amounts to reflect changes in living costs and income levels. If you're facing financial hardship, you may be eligible to pay child support at a fixed rate per child each year or at a minimum rate.
Other government financial support services can impact either the amount of child support you receive or the amount of other benefits you’re eligible for. For example, receiving more child support may reduce your Family Tax Benefit, and vice versa.
If a child turns 18 while still in full-time secondary education, child maintenance may apply. This can be requested as an extension of child support through Services Australia or, in some cases, as a child maintenance order or agreement through the Federal Circuit and Family Court.
If a parent or carer disagrees with a Services Australia decision, they usually need to lodge an objection with Services Australia—though some matters may go directly to the Court. If you're unsure which path to take, Canterbury Family Law can guide you through your legal rights and responsibilities.
No matter where you are in the child support or maintenance process, Canterbury Family Law is here to support you every step of the way.
Children’s Care Arrangements
Under the Family Law Act 1975 (Cth), each parent has parental responsibility for the care and welfare of their children. When discussing post-separation care arrangements, both parties should prioritise creating a safe and supportive environment, ensuring the child receives emotional support, and always keeping the child's best interests at the forefront of any decisions made.
Child care arrangements may be formalised in one of three primary ways:
Through informal agreements between the parties;
By entering into a parenting plan; or
By obtaining parenting orders, including consent orders, through the court.
The best way to document care arrangements depends on the complexity of your situation. Wherever possible, the Court encourages parents to reach agreement through negotiation before pursuing formal court orders. At Canterbury Family Law, we have the expertise to help you navigate and negotiate the most suitable arrangements for your family.
Informal arrangements and parenting plans are not legally binding, while parenting orders and consent orders are. A parenting plan is a written agreement between parties outlining care arrangements for a child. Although not legally enforceable, the Court recommends each party obtain legal advice before entering into one.
Court orders regarding children generally fall into two categories: parenting orders and consent orders. Parenting orders are made by the Court to determine arrangements for children, while consent orders reflect agreements reached between the parties and are approved by the Court. If both parents have created a parenting plan and wish to make it legally binding, either party may apply to the Court for consent orders.
If you and the other party cannot agree on care arrangements for a child, either of you may apply to the Court for a parenting order to determine what is in the child’s best interests. Grandparents or other individuals concerned for the child’s welfare may also apply. However, if the child is under the care of a child welfare authority, the Court can only make a parenting order with that authority’s consent.
Canterbury Family Law can guide you through the process of applying for a parenting order, including completing an Initiating Application (a formal document filed to begin court proceedings in family law matters). We are also well equipped to advise on the most effective strategies to support your case in accordance with the child’s best interests.
Parenting orders typically address where a child will live, how much time they spend with each parent or others (such as grandparents), and how they communicate with those they don’t live with. They may also cover parental responsibility and other aspects of the child’s care and development.
At Canterbury Family Law, we provide tailored legal advice to help you navigate these arrangements, with solutions designed to meet your family's unique needs.
Third Parties in Family Law Matters
In many cases, individuals, businesses, or government agencies who are not directly involved in a family law dispute may still be affected. These are known as third parties—any person or entity involved in the matter who is not one of the spouse parties.
It is important that third parties understand their legal rights and responsibilities, as they may need to be formally joined to the proceedings, whether in parenting or property matters. A third party can be joined by a spouse party or may apply to the Court for a Joinder of Parties themselves (a legal process in which a third party is added to ongoing court proceedings).
In parenting cases, a third party may include the other parent of any stepchildren, relatives who are non-parent carers, or individuals with a relationship to a child whose parents are unable to care for them. Any person concerned with the "care, welfare, and development of the child" may apply for a parenting order to the Federal Circuit and Family Court.
In property proceedings, third parties are often individuals who own or have an interest in assets within the property pool, have a financial relationship with a party to the proceeding, are creditors affected by a property settlement, or need to be restrained from dealing with the property pool. Third parties are more commonly involved in property matters.
Under the Family Law Act 1975 (Cth), a third party must be joined in proceedings if they are a "person whose interests would be affected by the making of the order" and their involvement is necessary for the Court to resolve the issues in dispute. This ensures that all affected parties are included and informed of decisions that may impact them.
Being involved as a third party in a family law matter allows you to understand how the dispute will affect your interests, but it also grants the Court the authority to issue binding orders. These orders may direct the third party to take specific actions regarding the property of a direct party, or alter the third party's rights, liabilities, or property interests in relation to the main parties in the dispute.
The Court's power in such matters is extensive, as it possesses broad discretion to alter property interests in certain circumstances. A court order can have effect regardless of any other law, instrument, or agreement, including trust deeds or written contracts. Consequently, a third party cannot be in breach of any other legal obligations when complying with a court order.
If you are a third party involved in a family law proceeding or are considering an application for a Joinder of Parties, Canterbury Family Law can assist you in understanding your legal rights and responsibilities. We can help you make an informed decision regarding the potential outcomes of your involvement or the inclusion of a third party in your family law proceedings.
Dispute Resolution in Family Law
Dispute resolution refers to methods that enable parties to resolve their legal conflicts. This broad term encompasses negotiation through lawyers, collaborative practice, conciliation, mediation (including Family Dispute Resolution, or FDR), and arbitration.
The Federal Circuit and Family Court expects parties to attempt to resolve disputes through compromise, discussion, and dispute resolution, provided it is safe to do so and urgent exceptions do not apply. Before filing an application for court proceedings, both parties are expected to have engaged in appropriate services and made efforts to resolve the dispute through other means.
For parenting matters, such as parenting orders, it is mandatory to have engaged in Family Dispute Resolution (FDR) and obtained a certificate from the FDR practitioner before applying to the Court. However, if seeking a divorce or annulment, dispute resolution is not required.
Dispute resolution is an affordable, timely option that can help resolve conflicts and prevent future disputes, giving you greater control over the process and outcome. The various forms of dispute resolution—such as FDR, family counselling, post-separation parenting programs, and arbitration—can be difficult to navigate. At Canterbury Family Law, we are experienced in these processes and can advise you on the most suitable options for your situation.
In Family Dispute Resolution (FDR), a trained practitioner assists you and the other parties in identifying and considering options, with the goal of reaching an agreement to resolve some or all of your concerns. This process takes place through a Dispute Resolution Conference. FDR can be conducted outside the courts with organisations such as Victoria Legal Aid, or it can be court-based. It is important to note that only court-based FDR conferences are legally guaranteed to be confidential and comply with the Family Law Act 1975 (Cth).
A court-based Family Dispute Resolution (FDR) conference consists of two parts, though the overall time frame is not fixed.
Part 1 involves a phone meeting with the Registrar, who will explain the process and any next steps, such as documents you may need to bring to Part 2. If you have legal representation, they must attend this session with you.
In Part 2, both parties and their legal representatives meet with the Registrar, who will outline the process and begin substantive negotiations.
Both stages are privileged, meaning that statements made cannot be used in court, except in certain cases (e.g., suspected child abuse or threats of harm). All discussions are confidential unless exceptions apply.
If an agreement is reached, the Registrar will issue interim or final orders. If no agreement is reached, the matter will proceed to the next stage of the Court process.
Whatever legal advice you require - whether regarding dispute resolution options, legal representation during an FDR conference, or initiating a legal hearing before the Court - Canterbury Family Law understands that negotiations can be a stressful and challenging process. We are here to guide you through every step, helping to bridge disputes and achieve a final resolution.
Family Violence
Family violence refers to harmful behavior by an individual that causes their family member to feel unsafe or threatened. It can take the form of physical violence, sexual abuse, emotional abuse, financial abuse, and other harmful behaviors. Anyone can experience family violence.
Under the Family Violence Protection Act 2008 (Vic), the term "family member" encompasses a range of relationships. This includes people in intimate personal relationships, even if short-term or without a sexual element; parents and children, including stepchildren; relatives by birth, marriage, or adoption; individuals treated as family members, such as carers, support workers, guardians, or those within the family structure of specific cultures; and even former family members, such as ex-partners.
If you are not in immediate danger and the police have not made an FVIO (Family Violence Intervention Order) application on your behalf, you can apply for one through the Magistrates' Court. An FVIO is a binding order that imposes conditions on the person accused of family violence, and failure to comply may result in criminal charges. Children can also apply for an FVIO through the Children's Court of Victoria website. It is important to note that personal safety intervention orders may not be the most suitable option if you or someone in your family is experiencing family violence.
When filing an application for an FVIO, there are three main parties involved: the applicant (the person applying for the order), the affected family member or protected person (the individual seeking protection), and the respondent (the person accused of family violence). The applicant can also be the affected family member or protected person. FVIOs are typically heard in the Magistrates' Court, although in certain circumstances, they may be heard in the Children's Court.
Conditions of an FVIO may include rules such as prohibiting the respondent from living in the same home as the protected person (exclusion order), attempting to locate or follow the protected person, or approaching or remaining within a specified distance of them. Additional conditions may require the respondent to return personal property, surrender any firearms or weapons to the police, and include any other terms necessary to ensure the safety of the protected person or others known to the respondent.
FVIOs can include interim and final orders. An interim order is a temporary measure made by the Magistrate if they believe immediate protection is needed. A final order is issued if the Magistrate believes the respondent is likely to commit family violence again. However, FVIOs do not always last indefinitely, and an end date is typically set by the Magistrate.
Once the FVIO application has been processed and summons issued, the police will serve the respondent with a copy of the application. During the court hearing, the respondent may request changes to certain conditions, and any party may apply to modify, cancel, or extend the orders.
Whether or not you are certain that your situation involves family violence, we are here to support you. Canterbury Family Law understands that seeking help can be difficult, and we approach each case with compassion, recognizing the uncertainty and emotional strain you may be facing. We are committed to guiding you through this challenging time.
Wealth Protection in Future Relationships
Protecting your wealth for the future may involve more legal processes than expected. It can include actions such as creating a financial agreement, establishing a family trust, and planning for succession. These steps can influence future relationships with your partner, children, parents, and others.
A financial agreement under the Family Law Act 1975 (Cth) is a binding arrangement that outlines how assets, liabilities, and financial resources will be handled in the event of separation or divorce. It can be made before or during a marriage, or after divorce, and similarly, before or during a de facto relationship, or after separation.
A binding financial agreement excludes the Federal Circuit and Family Court's jurisdiction over the division of assets and future maintenance during separation or divorce.
To be binding, both parties must sign the agreement after receiving legal advice, with confirmation from their lawyers. The agreement must not be set aside by the Court. Canterbury Family Law can guide you in creating a financial agreement to protect your wealth.
The agreement must not involve non-disclosure of financial information, duress, undue influence, or terms that are not in the best interests of the child. If any of these conditions apply, the Court may set aside the agreement and make orders regarding property division.
A family trust can be an effective way to protect assets. A trust is a legal entity that holds property for beneficiaries, with a trustee managing the assets. While a common misconception is that trusts are immune from court intervention, the court may include trust assets in the property pool if it determines you control the trust.
If you or your former partner are beneficiaries, future trust payments may be considered in the Court's property division. Canterbury Family Law can guide you in managing family trusts to protect your assets during separation or divorce.
Succession law governs the distribution of a deceased person's assets and property, primarily under the Administration and Probate Act 1958 (Vic). To avoid intestacy (where a person dies without a valid will in place and the distribution of their assets is determined by the law), it is crucial to ensure a will is valid and reflects your wishes.
Estate planning also involves considerations such as superannuation, health directives, powers of attorney and guardianship, family trusts, and tax implications for beneficiaries.
At Canterbury Family Law, we understand that succession planning can be emotional. Our family lawyers are here to provide clear and compassionate advice to both testators and beneficiaries, ensuring all legal arrangements are handled efficiently and sensitively.