Here is a list of frequently asked questions that people experiencing separation might have about the legal system. Click on each of the questions below to see the answer.
What is the first step after separation?
There are no set rules about what to do following separation from a partner. Parties are able to resolve issues involving children, property and Child Support or all three between them on a private basis without the need of involvement of any professional. However, sometimes this is not possible and people ought to find out more information about their rights and obligations under the Family Law Act (1975) regarding property, children’s matters and other issues, such as Centrelink entitlements and Child Support. In situations where separation is very difficult, it may be helpful to seek support, such as counselling or a attend a parenting course, if it is appropriate.
Information about legal rights and obligations can be sought from a number of sources; including community based legal centres, Legal Services Commission information line or a private lawyer. It may also be helpful to contact the South Australian Law Society Legal Referral Service. The Family Law Courts website: www.familycourt.gov.au is also a good reference about the process.
For assistance with counselling or other types of support, a good starting point is the Family Relationships website: www.familyrelationships.gov.au or contact a local Family Relationship Centre or community centre, the details of which can be found at the Referral section of this website.
For further information about where to find the closest Family Relationships Centre or if legal assistance is required can be found on the ‘Referral Providers’ section of this website.
Information about Child Support can be found via the Child Support Help Line: 8111 5576, at the website: www.humanservices.gov.au or call 131 107.
Information about Centrelink entitlements, government benefits and/or other issues to consider following separation (such as Medicare) can also be found at: www.humanservices.gov.au or call 136 150.
What is ‘family dispute resolution’ and is it compulsory to attend?
Family Dispute Resolution is a voluntary, mediated process where separated parties try to reach an agreement about how the care of the children and/or the division of property will look following separation. Family Dispute Resolution occurs primarily at Family Relationship Centres; a number of community based organisations or via private Family Dispute Resolution practitioners. It can also occur in a lawyer-assisted form at the Legal Services Commission. Sometimes, Family Dispute Resolution is also referred to as family mediation.
Many parties can sort issues after separation out themselves but some parties need assistance in which to resolve them. Family Dispute Resolution is one way to resolve issues pertaining to either children’s matters or property matters or both. Family Dispute Resolution Practitioners must be specially trained and accredited to properly carry out the Family Dispute Resolution process.
If parties are able to reach an agreement for children (called a ‘Parenting Plan’) or for property (‘Property Agreement’), or both, they should consider and/or seek legal advice about possibly having those agreements prepared into a set of Consent Orders, which are filed with the Family Court to make them legally enforceable.
If a resolution is not able to be reached between parties about care arrangements for children, under the Family Law Act, parties are not able to file proceedings with the Family Law Courts about children’s matters, unless a special Certificate (a Section 60I Certificate) is issued by a Family Dispute Resolution Practitioner, except where there are exceptional circumstances which make Family Dispute Resolution inappropriate.
To find out more about what these ‘exceptional’ circumstances may be, speak to a Family Relationships Centre, a Family Dispute Practitioner or seek legal advice.
Family Dispute Resolution is not compulsory for issues between separated parties relating to property matters.
Parties are able to seek legal assistance about their legal rights and obligations before, during or following Family Dispute Resolution. A lawyer is not allowed to participate in the Family Dispute Resolution process, except for those held with the Legal Services Commission, where they host Family Dispute Resolution with legal assistance. You can contact the Legal Services Commission about legally assisted Family Dispute Resolution on 8111 5555 or at www.lsc.sa.gov.au
If there are any concerns about the process or the legal ramifications about rights and obligations, parties should seek further legal advice.
Is it a requirement to attend a parenting course following separation?
It is not a requirement under the Family Law Act to attend a parenting course following separation, but many parties find it beneficial to do so.
Some agencies require that if parties are attending for Family Dispute Resolution, that they also attend a ‘Child Focussed Information’ session or similiar, which will discuss some of the difficult issues and conflicts which may arise following a separation.
Broadly speaking, it is only a requirement to attend a Parenting Course if a matter proceeds to Court and a Judge makes an Order to do so.
However, in many cases, separation is a difficult time for both parents and children and there are many different types of courses held in across metropolitan Adelaide and in regional centres in South Australia which to assist parties and/or their children deal with the issues surrounding separation. Details of what courses are available and when they held are to be found on this website in ‘ Courses and Events’.
Is it compulsory to get a lawyer after separation?
At any stage of following separation, a party can obtain legal advice and assistance about their rights and entitlements under the Family Law Act (1975). There are many types of legal services, including community based legal assistance, Legal Services Commission and private lawyers.
However, a party can elect to be self- represented throughout a matter, if they wish to do so. Whilst it is not a requirement to seek legal advice, it can be of great benefit to do so.
A lawyer cannot be present throughout Family Dispute Resolution but they can offer advice throughout the process, except at legally assisted Family Dispute Resolution at the Legal Services Commission. A lawyer may also assist parties in the preparation of Consent Orders in which to formalise a settlement between parties reached during the Family Dispute Resolution about property or children or both.
How do I make an agreement reached privately or by way of Family Dispute Resolution legally binding?
Whilst it is ideal that parties do reach an agreement between them about property or children either privately or via Family Dispute Resolution, that will not necessarily make those agreements legally enforceable. Ideally, parties should get any agreement reached between them developed into a set of Consent Orders which are filed with the Family Court in which to make that agreement binding. A lawyer can assist parties to do so. A party can seek a community based lawyer or a private lawyer through the SA Law Society Referral Service.
How and when does a matter proceed to Court?
Generally speaking, a matter can proceed to Court when parties cannot agree, if they have been provided with a Section 60I Certificate and/or if there are urgent reasons or exceptions that the matter should do so. A party ideally should seek legal advice about whether the matter is one which should proceed to Court.
Assuming that the matter is appropriate and able to proceed to Court, in a children’s matter, the applying party needs to file an Initiating Application seeking Orders of the Court; an Affidavit outlining the reasons for seeking those Orders and a Notice of Risk of Abuse. These forms are available on the Family Law Courts website: www.familycourt.gov.au or a party can chose to seek advice and representation from a lawyer who can assist in preparing these documents. The Affidavit must be witnessed by a lawyer, Commissioner for taking Affidavits in the Supreme Court of South Australia or a Justice of the Peace.
For a property matter, the applying party needs to prepare an Initiating Application seeking Orders of the Court, an Affidavit outlining the reasons for seeking those Orders and a Financial Statement. These forms are also available on the Family Law Courts website: www.familycourt.gov.au or seek legal advice.
Once the documents are ready, the applying party (the “applicant”) needs to file the documents at the Family Law Courts Registry with the correct filing fee. In some instances, the Applicant can seek a waiver or reduction of those fees. For more information about the filing fees and/or the criteria for a waiver/reduction of the fees, please see: www.familycourt.gov.au. Parties will also need to establish whether the matter should be filed with the Family Court or the Federal Circuit Court. There are certain protocols which have been developed by the Court about what matters ought to be filed with the Family Court, which can also be found at www.familycourt.gov.au or seek legal advice.
Once a matter is filed with the Court, the Court Registry will set a Court date (first returnable date) and then the documents need to be served on the opposing party (the “Respondent”). There is usually a timeframe set by the Court Registry when those documents need to be served on the Respondent. Unless the other side has a lawyer, usually, the Court requires proof that the documents have been served on the other party.
In most circumstances, the Respondent must then file responding documents with the Court before the first hearing and pay a filing fee, unless they qualify for a reduction and/or waiver.
When will a decision be made once the matter proceeds to Court?
The day of the first hearing is called a ‘duty’ day. On this date, the Judge who is assigned to hear the matter will have a long list of matters which are being heard for the first time.
Depending on the nature of the matter and the Orders sought, the Court may make a series of Orders in which to progress the matter on the first date. Sometimes the parties can convene prior to the hearing to discuss how the matter may best proceed and agree to a set of Orders on an interim (temporary) basis. Otherwise, the Court will make other sets of Orders and directions about how to progress the matter and what further information is required. For instance, in a property matter, the Court may Order that the parties attend at the Court at a future date for a Conciliation Conference in which to try to resolve the matter and order that the parties exchange financial documentation by a required date. For a contested children’s matter which requires immediate attention, the Court may hear submissions from the parties on the day and may make a series of Orders based on the information to hand.
These Orders are referred to as ‘interim’ Orders and are not final decisions or determinations. The Court will likely seek further information and/or recommendations and then list the matter for Trial at a later time.
Parties to a matter in dispute are still able to negotiate and try to resolve a matter before a Trial. Parties may be able finalise the matter by way of final Consent Orders. If the parties cannot do so, the matter will proceed to Trial and after the Court has heard all of the evidence, the Judge will make a final judicial determination.
Ideally, parties ought to seek legal advice if a matter proceeds to Court and obtain more information about the process. Parties can find a private or community based lawyer via the SA Law Society referal service on www.lawsocietysa.asn.au.
What is the Children’s Contact Service? When can it be used?
A Children’s Contact Service is used when parties are Ordered by the Court to do so or arrange by way of a Parenting Plan ( or other form of written agreement) to attend this service. There are a number of services run through Family Relationship Centres in SA.
Children’s Contact Services are a safe way for one parent to spend time with a child/ren or a service which enables handover for children where parties are highly conflicted.
Most Children’s Contact Services are extremely busy and have long waiting lists. Parties who use the handover service normally have shorter waiting lists.
The Children’s Contact Services also have a strict procedure to follow in which to enable parties to use the Children’s Contact Service. Both parties are required to enrol in the Children’s Contact Service and complete a number of forms. Once both parties have done so and returned them, and they are ‘matched’, then the parties can commence the process of being able to use the service. Most Children’s Contact Services firstly conduct an “ Intake” interview and once this is completed, then they await a time for a place to become available. For this reason, Children’s Contact Services are only able to begin time for parties once parties have gone through this process.
Children’s Contact Services are aware that the wait and process to enter the service can be frustrating and will do their utmost to enable parties to use the service as soon as possible.