Finalising a financial relationship or negotiating parenting issues and care arrangements for children with a former de facto or married partner can have its challenges and needs to be carefully managed. The most optimal approach is for parties to reach an agreement and lodge a joint application in the Family Court of Western Australia for consent orders to be made. In property and financial matters, the Court requires consent orders to be fair and equitable to both parties. By agreeing matters, separated parties avoid protracted and financially challenging contested Family Court proceedings, and the risk of intervening events during that prolonged process, such as a loss of employment by one of the parties and diminution of assets, the introduction of a new partner, inheritance, or a successful new business venture, which may have adverse consequences.

At Macmillan Legal, we understand that family law property disputes can be financially and emotionally challenging, especially when prolonged. Engaging in contested proceedings in the Family Court of Western Australia is the least attractive option for parties seeking to finalise their financial relationship. We know too well that court proceedings can be all-consuming and physically and emotionally exhausting for all family members, especially children. The final result at a trial often does not meet expectations, and aside from the significant legal costs involved, the litigation process potentially can cause irreparable harm to future family relationships.

In our experience, a reasonably considered and equitable financial settlement will assist clients to move forward from the former relationship with dignity and confidence, and is far preferable to, and more financially palatable than engaging in high-cost, high-conflict Family Court proceedings that diminish and consume assets otherwise available for distribution between the parties.

We welcome the opportunity to advise and assist clients in family law property and financial matters, and can prepare and lodge applications for consent orders in the Family Court that satisfy the relevant legal requirements. We can arrange dispute resolution processes such as mediation to assist in resolving seemingly intractable or complex family law disputes with the aim of finalising matters without engagement in lengthy and costly Court proceedings. If litigation is unavoidable, we can prepare and, or respond to Court applications and assist and represent clients throughout the Court process.

In family law children’s matters it is important for separated parents to look beyond any conflict between them and to maintain a child-focussed approach that recognises and supports the best interests of their child or children, rather than the personal desires and interests of either parent. We encourage clients to be flexible and creative in their approach to parenting matters and emphasise the need to explore and trial different options for care arrangements which create opportunities for children to spend time with and develop their relationship with both parents, where appropriate.

Our expertise in family law matters includes preparing and lodging joint applications in the Family Court of Western Australia for parenting orders to be made by consent of the parties. Where matters remain unresolved and require assistance from the Family Court, we can advise in relation to commencing or responding to Court proceedings, prepare applications and responsive documents, and represent clients in Family Court proceedings. For legal solutions and professional advice in relation to family law matters contact Macmillan Legal.

In Australia, the principle of no-fault divorce applies, which means that when making divorce orders, the Family Court does not consider the reasons for breakdown of a marriage nor property and financial issues. The Court only has to be satisfied that the parties have been separated for at least 12 months and there is no prospect of reconciliation. It is not a requirement that parties be ‘physically’ separated for the entire 12 month period as the Court recognises situations where separated parties have continued to live separately and apart from each other at the same address, referred to as ‘separation under one roof’. In that situation, an affidavit explaining the arrangements is required. Applications can be made jointly by the parties or solely by one of the parties. In respect to sole applications, additional steps relating to service and attendance at Court are required. Applications are electronically lodged in the Family Court via the Court’s ePortal. Macmillan Legal can advise and assist clients with preparing or responding to applications for divorce and can provide guidance in relation to the online application process.

Prior to granting a divorce, the Court will need to be satisfied that parents have made appropriate arrangements for the day-to-day care, maintenance, and welfare of children of the marriage. The Court will not make orders in relation to care arrangements for children or the division of property as part of a divorce application. If such orders are required, either a joint application can be made to the Family Court seeking orders by consent or in the absence of agreement, either party can commence an application in the Family Court seeking orders to be made. Parties are expected to first participate in mediation or dispute resolution processes which genuinely seek to resolve matters, which is mandatory in children’s matters unless an exemption applies.

In Western Australia, the effect of divorce applications is primarily governed by the Family Law Act 1975 (Cth) which stipulates that married parties must be separated for at least 12 months before applying for divorce. The purpose is to enable separating parties time to consider their decision and make necessary arrangements. A divorce order formally ends a marriage but does not deal with property or financial issues. The divorce order triggers the commencement of a 12 month limitation period for divorced parties to commence an application for financial orders in the Family Court, without leave of the Court. If an application is commenced beyond that period, leave of the Court must be sought to extend the time in which to apply. Where property issues are complex or anticipated to be prolonged, or more time is needed to negotiate property matters or prepare for contested proceedings, married parties often delay the divorce process to avoid the limitation clock starting to tick. The limitation period has no application in respect to joint applications for consent orders.

De facto relationships
Former de facto partners are required to commence an application for property orders in the Family Court within 24 months after separation. Beyond that timeframe, leave of the Court to extend the time to apply is required. As with former married partners, the time limitation does not apply to joint applications to the Court for property orders to be made by the parties’ consent.
It is important for parties to obtain independent legal advice early in the separation process to gain an understanding of the legal issues and obligations to be performed by both parties. In our experience, well-informed parties are better placed to make informed decisions about family law issues.

Spousal maintenance
In particular circumstances, a former party to a marriage or de facto relationship may be entitled to receive financial support from the other party in the form of spousal maintenance. An obligation to financially maintain a former spouse or partner may arise where one party is in need of financial support and the other party has the financial means to provide such support. For example, where a party is unemployed and financially dependent on their former partner or has the full-time care of children and is unable to participate in paid employment. Spousal maintenance is a separate issue to property rights and the division of assets, however, it is often considered in conjunction with those matters in the Family Court.