Care arrangements for children after a relationship ends are often made by agreement between the parents, shaped by their understanding of what is in the best interests of the children. However, when parents can’t agree about what is best, getting advice is essential, especially when a parent has concerns about their safety or risk for the children.

On 6 May 2024, changes to the Family Law Act 1975 about the care of children came into effect.

It is recommended that you seek legal advice before any decisions or dispute resolution takes place.

Where there is no agreement or if you are uncertain about what is best, the first step is to obtain advice and (where it is safe to do so) engage in family dispute resolution with a qualified practitioner. We can guide you as to the right service for you and can participate with you if lawyer assisted mediation occurs.

While the Family Law Act requires parties to get a certificate from a dispute resolution practitioner before a court case about children starts, there are exceptions – including in cases of family violence or of urgency.

If you need to apply to the Court for specific orders about the care of children, we can assist you in the preparation of the court documents and going to court with you.

The child’s best interests must be at the forefront of decisions made by parents and is the principle that directs the Court.

If you reach an informal agreement about custody and or the care of children (or the level of child support to be paid) there is some risk that either parent may change their mind or not stick to the agreement. DDCS Lawyers can advise you about and assist you to draft the necessary documents to confirm your agreement.

Property – splitting finances and assets

At the end of a relationship or marriage, there may be disagreement about who keeps what and how property is to be split. DDCS Lawyers can advise you about the law and the process which shapes any property settlement. While reaching an agreement is good, doing so fully informed about your options and likely outcomes is essential. There are serious risks around informal property settlements. Obtaining legal advice to understand and guard against those risks is important.

The Family Law Act sets out a series of steps and considerations which direct how property settlements are to be approached and we use that framework to inform our advice.

We can provide expert advice about how to shape any settlement agreed and the best way to formalise that agreement – which takes into account future planning and asset protection.

If discussions and negotiations don’t work, the Courts have the power to determine how property (and in some cases, income) should be divided. This assessment is shaped by steps set out in the Family Law Act, about which we can advise you.

Each case is different and may have additional complexities. Getting advice from experts, before you make decisions, is in your interests.

Pre-nuptial Agreements (Pre-nups) or Binding Financial Agreements (BFAs) can be made at any time, but are commonly developed before a couple starts living together and becomes de-facto or before they are married.

A pre-nup is a way to manage risk. No one expects their relationship will end, but 40% of marriages end in divorce (and the rate is even higher in subsequent marriages).

These agreements are used to:

• Protect property (including superannuation) brought into a relationship.
• Define how new property will be divided if the relationship ends.
• Make clear any arrangements for spousal maintenance (whether ongoing support is to be paid and the level of that support) if the relationship ends.
• Eliminate worry and uncertainty so both parties can focus on a healthy, happy, successful relationship.

DDCS can help you meet the strict legal requirements for making a pre-nup or BFA.

Getting expert advice is essential. Poorly prepared agreements may be set aside by the Courts, leaving parties significantly out of pocket and exposed to substantial and far reaching orders.

Our team can provide careful advice at each stage of the process including around how to have conversations about pre-nups.

Divorce is the formal step of legally dissolving a marriage after both parties have been ‘separated’ for 12 months. A divorce order can only be made where the court is satisfied the marriage has “irretrievably broken down”, proven by the parties having lived apart for a year or more.

Within 12 months from the divorce date, the parties must have reached a formal agreement about their property settlement and spousal maintenance, or have started court proceedings for financial orders in that time frame. We can advise you about what to do if you are outside of that time limit and do not have a property settlement (you can apply to the court, but hardship must first be established).

It is also important to note that that changes to your Will also occur upon your divorce.

Many people choose to live with their partner and do not go on to marry. In broad terms, upon the end of a de facto relationship, the laws that govern property settlement and spousal maintenance largely mirror those in place for people who were married (and children are covered by the Family Law Act regardless of whether their parents ever lived together, were married or de facto).

At times there may be disagreement about whether a de facto relationship existed or when it ended, with one person arguing the Family Law Act should not apply. Where these disagreements occur, the characteristics of the relationship are examined, including:

• The length of time the relationship has been in existence;
• The extent to which both people shared a common residence;
• Whether a sexual relationship existed;
• The ownership of property;
• How that property was bought and used;
• Whether the couple have children;
• The public aspects of the relationship.

Important time limits apply to commence proceedings after the breakdown of a de facto relationship (normally within 2 years after the end of the relationship). After this time, you can apply to the court, but hardship must first be established.

All forms of dispute resolution aim to find resolution outside of court. The Courts expect people to have tried to reach an agreement before they turn to the Courts for help.

Our lawyers are all experienced in dispute resolution and will advise you about the services that will help you shape the best solution and which will take into account your particular circumstances, including safety concerns.

Negotiation occurs between the lawyers and may involve meetings with the parties too. It is outcome driven. DDCS Lawyers are skilled and sophisticated negotiators, utilising their knowledge and experience to settle matters in a timely manner. Supportive and goal orientated, we are committed to representing you to the best of our ability.

Mediation occurs with both parties present and is facilitated by an impartial mediator. The role of the mediator is to help parties set an agenda and decide what the desired end goal will be. The mediator then neutrally facilitates communication and problem solving to assist both parties. It’s important to remember that mediators do not provide legal advice, however they may assist the parties to record their agreements. You do not have to be in the same room as the other party for mediations to occur.

Collaborative practice is a mix of the two, where discussions occur in a mediation-like environment with lawyers (and sometimes other professionals) present and able to provide advice and guidance. Additional professionals such as financial planners or child specialists, may also be engaged to provide additional information and guidance. The Collaborative process aims to minimise conflict and provide a strong foundation for working through any future issues and ideally to improve communication foundations between the parties. There are additional rules around Collaborative process which we can discuss with you.

Our mediation practice is led by Julie Dobinson and Phillip Davey, both nationally accredited and experienced mediators. DDCS Lawyers have specialist training in negotiation and additional training in collaborative practice.

In some circumstances, the breakdown of a marriage or de-facto relationship can lead to one party being required to pay some of their income to the other party, to help in their ongoing support (Spousal Maintenance).

Depending on each party’s particular circumstances, spousal maintenance can either be paid in the form of regular payments, a lump sum, or a transfer of property. Time limits apply to applications too.

DDCS Lawyers can advise you about spousal maintenance and options available to manage risk around this.

Family violence allegations are made in more than 80% of cases filed at the Courts and DDCS Lawyers are very aware of the prevalence of family violence in our community.

Your safety and well-being (and that of your children) informs and shapes our approach and our advocacy.

The Family Law Act and the ACT Family Violence Act provide a number of different ways for the Courts to address and respond to family violence and to keep parties (and children) safe.

Family or domestic violence is defined in the Family Law Act as, “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be fearful.”

Examples of this behaviour may include:

• Any kind of assault, both physical and/or sexual.
• Stalking or repeated derogatory taunts.
• Intentionally damaging or destroying property.
• Intentionally causing death or injury to an animal.
• Unreasonably denying the family member the financial autonomy that he or she would otherwise have had.
• Unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support.
• Preventing the family member from making or keeping connections with his or her family, friends or culture.
• Unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
• Protecting a child from family violence is a key consideration for the Courts when assessing what is in the best interests of a child. The Family Law Courts are committed to ensuring that issues about family violence are addressed promptly and with priority in matters concerning children.

Both the ACT Magistrates Court and the Family Law Courts will issue orders to protect people experiencing family violence.

We can assist you in obtaining urgent family violence orders in the ACT Magistrates Court and to secure appropriate restraining orders in the Family Law Courts.