Family Law

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In order to obtain a divorce you must make an application to a court. We are happy to assist you with this process.

Australia has a "no fault" system of divorce. This means that the Court will not be concerned with the underlying facts that resulted in the breakdown of your marriage. Rather, the Court will only need to be satisfied that you and your spouse have lived separately and apart for at least twelve months and that there is no reasonable likelihood of you reconciling. It is possible to live "separately and apart" under the one roof.

Depending on the circumstances (such as whether there are children under the age of 18, and whether your application is a joint application with your spouse), you may need to physically attend Court before your divorce is granted. Often you will be able to have the divorce granted without any need to actually attend Court.

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Divorce is dealt with separately to matters relating to matrimonial property and children. For example, it is possible to be granted a divorce while the division of matrimonial property remains outstanding.

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property settlemenTS

When you separate from your spouse or de facto partner, it will be necessary to divide the assets of the relationship. Often this can be done by agreement following negotiation between the parties or their legal representatives. Such an agreement can be formalised by a binding agreement or by applying to the Court for consent orders.

If agreement cannot be reached, it may be necessary to apply to the Court for orders. A The Family Law Act 1975 (Cth) sets out the relevant principles that the Court will take into consideration. The Court will consider:

  • What are the assets of the relationship and their worth?
  • What are the debts of the relationship?
  • Have there been indirect financial contributions from one or both parties (eg gifts, family inheritances)?
  • What non-financial contributions has each party made (eg caring for children, homemaking)?
  • What are the future requirements that each party will have, taking into account things like age, health, financial resources, and the obligation to care for children?

Having regard to those factors, the Court will decide what is fair and reasonable in your case. There is no specific formula that can be applied. Everything depends on the specific circumstances of the individual relationship in question. No two cases are the same. As such, it is important that you have legal advice in order to ensure that your interests are properly protected.

Testimonial: "Thanks again Tom. Knowing it is all over and settled I feel a weight has been lifted. I am very grateful for the money I am to receive. With any luck I hope I don’t require your services again Tom, but should the need arise I will be contacting you. I will also refer you on to others." Read More

There are time limits for making applications to the Court so you should seek legal advice as soon as possible following the breakdown of your relationship - do not wait.

In property settlement matters we are often willing to defer recovery of our fees until the matter resolves. Please feel free to contact us to discuss how we can assist you in this area.

Dewar Legal Blog - Property Settlement Posts:
- Fixed Fee Divorce and Property Settlement in South Australia
- Family Law Property Settlements in South Australia - Who Gets What?

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disputes about children

Unfortunately disputes often arise regarding the care and welfare of children.

Even if you agree with the other parent of your child or children about parenting issues, it is sensible to formalise arrangements by entering into a "parenting plan" or applying to the Court for consent orders. We are happy to assist in this regard.

Case Study: Our client had separated from her de facto partner. They had two children together. Our client and her partner just could not get on and were unable to agree about arrangements for the children. We secured legal aid funding for our client and then attended a family dispute resolution conference with her. Our client did not had to see her former partner - he was in a separate room. Working with the mediator, we negotiated a resolution that our client was very happy with. A consent order was made that was legally binding on both parties without them actually having to go to court.

If you cannot agree, it may be necessary to apply to the Court for formal orders that will be binding on all parties. In South Australia, all family law disputes are heard either in the Federal Circuit Court or the Family Court of Australia. Both courts are located in the Commonwealth Law Courts Building in Victoria Square (shown to the right).

Before you do so, you must try your best to resolve the dispute by a process called "family dispute resolution". Unless the application is urgent, the Court will not accept your application without a certificate from a family dispute resolution provider certifying that you have attempted to resolve the dispute. We are happy to assist you commence this process. Alternatively, you can locate a family dispute resolution provider by accessing the Family Dispute Resolution Register.

Testimonial: "Thank you for all of the help with the trial Tom! Very much appreciated!" Read More

Testimonial: "i wouldn't have got as far as i am now without you :)" Read More

If family dispute resolution does not work, you or your spouse may commence proceedings in the Court. We suggest that you speak to a lawyer immediately.

The Court can make orders about the following matters:

  • Where a child lives, and with whom;
  • The time a child is to spend with another person or other persons;
  • The allocation of parental responsibility for a child;
  • Communication between the child and another person or other persons;
  • Child maintenance;
  • The steps to be taken before an application is made to a court for a variation of the order;
  • The process to be used for resolving disputes about the order, and
  • Any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.

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It will be necessary to file an affidavit or affidavits with your application or your response to an application brought by someone else. The affidavit or affidavits will have to set out all the information the Court needs to make a decision (later it may be necessary to give oral evidence, depending on the circumstances). Affidavits are formal legal documents that contain sworn or affirmed evidence. They must comply with the rules of evidence. We strongly suggest that you seek legal assistance to prepare your affidavit.

Case Study: We acted for our client - the father of a young girl - in a long-running dispute that involved serious allegations of abuse against the other parent. By issuing subpoenas to government bodies, by utilising random drug testing and by preparing detailed affidavits from various witnesses we were able to secure orders that the child live with our client full time and only spend time with the other parent under strict supervision.

Testimonial: "Tom acted for myself in my daughter's custody case in which the outcome was highy succesful. I would recommend Dewar Legal for many reasons, primary amongst them the diligence, competence, professionalism, excellent client/lawyer communication and above all Mr Dewar gets results that are never speculative or rushed. My daughter's custody case was one dogged frustration from the word go. Not once did my counsel ever tender ideas of defeat and he held the child's interests, health and safety of the highest regard. If this testimony sounds lavish it is not, it is the unbiased opinion of one who has had their world ripped apart by relationship issues over a child and separation. I recommend Dewar Legal any day of the year." Read More

We would be happy to assist you with any matter relating to the care and custody of your child or children. You may be eligible for funding from Legal Aid for such matters, and we would be happy to assist you to apply for funding.

Please contact us to discuss how we can assist.

Dewar Legal Blog - Disputes About Children Posts:
- Grandparents and Family Law in South Australia
- Negotiating about Child Custody in South Australia
- Intervention Orders in South Australia
- Dewar Legal Lawyer Succesfully Argues Supreme Court Appeal

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