What is separation?

If you are unhappy in your marriage or relationship you can separate at any time you choose.

Separation occurs when at least one person makes the decision to separate, acts on that decision and tells the other person. The other person doesn’t have to agree with your decision to separate.

If you or your children are at immediate risk of harm, contact the police. In an emergency call 000. If it is not urgent that you leave the home immediately, you should get legal advice about your rights before you separate.

Separation and leaving home

There are no legal requirements to separate. You don’t need to fill in any forms, apply to a court or any government organisation to separate, but you may need to tell certain agencies like Centrelink, the Child Support Agency and Medicare that you have separated. When you separate, it is best to get legal advice as soon as possible about your rights, including arrangements for children, child support and any property. If you’re new to Australia or are worried that separation may impact your visa or residency, get legal advice.

Can we be separated by living together?

You’re separated once you stop living together as a couple. You can still be separated but live together in the same house. This is called ‘separation under the one roof’.

If you are applying to Centrelink, you may need to prove to them that you are in fact separated under the one roof. They will consider whether:

• you sleep in the same bed;
• you and your former spouse have a sexual relationship;
• how you share meals and domestic duties in a different way to when you were married;
• you share money and bank accounts;
• your family and friends think of you as separated;
• you socialise or go out together.

No single factor is determinative.

Do I or my ex-partner have to leave our home?

You may not have to leave, even if your ex-partner refuses to leave the home (or owns the home in their sole name). If you leave your family home you do not lose your right to make a legal claim to the home or other property, but you should get legal advice about how you can protect your interest in the home.

What if my ex-partner and I can’t agree on who should leave the home?

In most cases, you and your ex-partner can decide who will leave the home. If you can’t agree, you can apply to a court to seek that you have the sole use and occupation of the home, forcing the other person to leave the home. If your ex-partner has been violent towards you, you may be able to seek a domestic violence order including an ‘ouster’ condition which forces the other person to leave.

These types of orders are only made in special circumstances, and you should get legal advice before applying for this type of order.

What if my ex-partner and I are living in a rental property?

If you are renting your home and the lease is in your ex-partner’s name, and you are experiencing or have experienced domestic violence, you may be able to apply to be recognised as the tenant instead of your ex-partner. It may also be possible for the lease to be changed to one of the party’s name with the consent of the owner of the property. You should get legal advice about the best options for you.

What if I am named on the home loan?

After separation, you will continue to be responsible for rent or mortgage payments if you are named on the home loan. If the loan is in joint names, both parties are legally responsible for payments regardless of who is living in the property. It is important to consider your financial position when planning to move. If you have decided to leave, you may be able to make arrangements with the mortgage lender regarding payments. It may be possible to apply to a court to seek that your partner be solely responsible for repayment of the mortgage, however it is important to legal advice.

After I have left, can I go back to the house to collect my belongings?

You have the right to your personal possessions. If the house is owned jointly or is in your name, you can go back to the house. You should consider whether there is potential for violence from your partner.

If the locks have been changed you should get legal advice about how to get your belongings. It is not advisable to break into a house, even if your name is on the title or lease.

If the house is in your partner’s name, you should get legal advice before going back to the house and collecting your belongings.

If you think there is a possibility of violence or harassment when you attend the house, the police can accompany you to remove your personal possessions. The police are there only to protect you from violence or harassment, and they will not carry things from the house for you. If there is a dispute between you and your partner about who owns what, the police will not assist you.

If there has been domestic violence, you may be able to seek a domestic violence order including a condition that allows you to return to the house to collect your belongings either with or without the police attending with you.

What can I take when I leave?

Identification, documents, money

It is a good idea to take money and at least three forms of identification with you when you leave. You will need the original documents as photocopies are not usually acceptable.

Identification is important as you need identification to apply to Centrelink, to open new bank accounts or even to join a library.

If possible, take the following with you:

• Current Australian Passport, yours and your children’s
• Birth certificate or birth extracts, yours and your children’s
• Bank books and cards including those for joint accounts
• Driver’s licence (showing a current address)
• Car registration papers (showing a current address)
• Credit cards (showing name and signature of holder)
• Marriage certificate
• Health care cards
• Citizenship papers
• Title Deeds to any property that you and your partner own
• Tax file number
• Documents related to both business and personal finances (including a copy of any financial agreement, superannuation details, mortgage or bank loan documents, tax returns and assessments, and insurance policies)
• Your Will

You may also need:

• Any available cash
• Car and house keys
• Your address book
• Jewellery
• Personal items, such as photographs and anything of sentimental value
• The children’s special possessions

What if I don’t have a place to stay?

If you need to go to a refuge, telephone DV Connect on 1800 811 811.
This is a toll-free call available 24 hours.
To access a hostel, call the Homeless Hotline on 1800 474 753.
To obtain public housing, contact or visit your local Housing Service Centre.

You can access the translated version of this resource in the following languages:

• Chinese (Simplified)
• Farsi
• Japanese
• Punjabi
• Spanish
• Thai
• Tigrinya
• Vietnamese

 

 

When you contact Women’s Legal Service Queensland (WLSQ) seeking assistance, you may be advised that we cannot assist. This factsheet sets out the reasons why we may not be able to assist.

Some areas we can provide advice on:

• Family law, parenting, property, child support
• Child protection
• Domestic and family violence
• Protection of sexual assault counselling records

We cannot provide you with advice in other areas of law. This may include…

• Breaches of a Protection Order
• Criminal law
• Tenancy issues
• Employment
• Discrimination
• Wills
• Guardianship matters

Community legal organisations such as WLSQ exist to provide assistance to vulnerable and disadvantaged clients.

We are often the first point of contact for women seeking assistance, or their last resort when all other attempts to seek legal assistance have failed.

Women are assessed internally according to eligibility requirements and capacity when they connect with the WLSQ Helpline, receive a legal advice appointment from one of the WLSQ lawyers, or are referred to WLSQ.

Priority will be provided to vulnerable and disadvantaged women, including women who:

a. Are experiencing domestic violence;
b. Identify as Aboriginal or Torres Strait Islander;
c. Are from a culturally or linguistically diverse background;
d. Are living with a disability;
e. Live in a rural, regional or remote area;
f. Are experiencing financial hardship.

Women are assessed internally according to eligibility requirements and capacity when they connect with the WLSQ Helpline, receive a legal advice appointment from one of the WLSQ lawyers, or are referred to WLSQ.  Under our eligibility requirements we are unable to provide assistance if:

• You have a lawyer acting for you, this includes if you want to check the advice your lawyer has provided to you or if you are unhappy with your lawyer.  This is sometimes referred to as second opinion advice.
• Your current income is above the eligibility cap of $1,499 net (after tax) per week.  However, there may be exceptions that we can discuss further with you.
• You do not reside in Queensland or your legal matter is not within Queensland.

Conflict of interest check

When you contact WLSQ, you will be asked your full name and date of birth and the names and dates of birth of the other people involved in your matter. We will then conduct a search of our file management system.

What is a conflict of interest?

WLSQ is a Community Legal Centre that is bound by professional obligations and duties to our clients and the court. This applies to everyone who works or volunteers at WLSQ.

A conflict of interest occurs when our duty to our client conflicts with another duty like a duty to another client or the court. A common example of a conflict of interest is providing legal advice to both parties in a dispute.

WLSQ is bound by professional obligations that state we cannot assist someone where we may have a conflict of interest.

If conflict of interest is identified

If we identify that a conflict of interest exists, we cannot assist you and we cannot provide you with any information about how or why there is a conflict of interest.

This may mean we have helped you in the past and cannot help you now or that we must abruptly stop helping you.

If we identify a conflict of interest, this does not mean that we do not want to help you. We will refer you to another service who may be able to assist you.

Examples of conflicts of interest

• WLSQ assists Sally with her family law case with Frank. At that time, Frank is in a relationship with Robyn. A couple of years later Robyn contacts WLSQ for assistance with her separation from Frank. WLSQ cannot advise Robyn.
• WLSQ assists Mary with her domestic violence case with Charlie and his mother Leah is a witness in the case. Leah then contacts WLSQ seeking advice about applying for a protection order against Mary. WLSQ cannot assist Leah.
• WLSQ assists Susan with a parenting case with Chris. Susan’s mother Peta then contacts WLSQ asking for advice about spending time with her grandchildren. WLSQ cannot assist Peta.

Domestic violence is when someone close to you hurts you. This person could be:

• your partner
• a family member
• an unpaid carer, who is also a family member or friend.

Domestic violence can happen to anyone. It is not a normal part of a healthy relationship.

What is domestic violence?

 

Legal Myths – Does domestic violence mean I need to prove they physically hurt me?

There are many types of domestic violence.

Physical abuse

Physical abuse is when someone hurts you. For example, they might:

• hit or push you
• twist your arm.

Sexual abuse

Sexual abuse is when someone forces or pressures you to take part in a sexual activity.

Emotional and psychological abuse

Emotional and psychological abuse is when someone makes you feel bad about yourself or afraid.

For example, they might:

• keep contacting you when you’ve told them not to
• threaten to stop giving you things you need
• stop you from making friends or contacting other people
• use verbal abuse.

Verbal abuse is when someone uses their words to hurt you. For example, they might call you a name or swear at you.

Economic and financial abuse

Economic and financial abuse is when someone controls how you get, use or keep money or economic resources.

For example, they might:

• make you give up control of your assets or income
• pressure you to sign legal documents
• stop you from accessing your property
• interfere with your opportunities to find work or keep a job.

Coercive control

Coercive control is when someone uses a pattern of behaviour over a period of time to try and control your life.  This behaviour is abusive and threatening. Coercive control can include one type of behaviour or many different behaviours. People who use coercive control might use a type of abuse as their pattern of behaviour. For example, economic and financial abuse.

You can find more information on our factsheet about coercive control.

Someone might threaten to:

• hurt you, themselves, another person or an animal
• damage your property.

Someone might stop you from being independent. Or they might threaten to do this.

Someone might stalk you. For example, they might:

• follow you on foot or in a car
• read your private text messages or emails
• use a GPS device to track your location.

Someone might pressure you to do, or not do, something or act in a certain way.

They might ask another person to do any of these things on their behalf.

If you are experiencing domestic violence, it is important that you get help. You should get help even if you are not sure if you are experiencing domestic violence.

If you are in immediate danger, call 000.

Find a support service

There are services that can support you if you are experiencing domestic violence.

These services can:

• talk to you about what is happening
• help you make a plan to keep safe
• connect you with other helpful services.

Local support services

You can find local support services on the Queensland Government website.

DVConnect

You can contact DVConnect for support. Call 1800 811 811

1800 RESPECT

You can contact 1800 RESPECT for support. Call 1800 737 732

Legal support

You can contact us to request free legal advice. This includes advice about what legal protections you can get if you are experiencing domestic violence.

You can call 1800 957 957

There are also other places to get legal advice, including:

• private lawyers
• other community legal centres
• Legal Aid Queensland.

Police link

If you are not in immediate danger, you can contact police link.
Call 131 444.

You can also go to your local station and talk to someone in person.

You can speak to police about what is happening. This includes showing them any text messages or other evidence you might have.

They may charge the person using violence. They can also apply for protection for you by making:

• a police protection notice (PPN)
• an application for a domestic violence order (DVO).

A DVO is a legal order that a Magistrates Court can make. A DVO is sometimes called a protection order. It tells the person you want protection from that they are not allowed to do certain things or behave in certain ways.

The person you want protection from is ‘the respondent’. The person who wants protection is ‘the aggrieved’.

A DVO requires the respondent ‘to be of good behaviour and not to commit domestic violence’. It can also have other conditions.

For example, a DVO can prevent the respondent from:

• contacting or approaching you – for example, visiting places where you live, work or spend a lot of time
• finding you
• using the internet to communicate with you, share pictures of you or make harmful comments about you

• being on your property in certain situations.

A DVO can also do these things to protect your child or another person you want to protect. And it can prevent someone from visiting your child’s school or day care.

If the respondent doesn’t follow the conditions in a DVO, the police can charge them with a criminal offence and the court can punish them.

A respondent is banned from having or applying for a weapons license.

A DVO usually lasts for 5 years.

What is a protection order?

If you are over the age of eighteen (18), you can apply for a DVO if the person who abused you is:

• your partner – for example, someone you are married to or in a relationship with
• your ex-partner
• a family member
• an unpaid carer, who is also a family member or friend.

If you are under the age of eighteen (18), you can apply for a protection order if the person who abused you is:

• Your partner – for example, someone you are in a couple relationship with
• Your ex-partner
• An unpaid carer (unless that person is a parent)

If you are under the age of eighteen (18) you are unable to make an application for a protection order against a parent or family member.

You can apply for a DVO at any local Magistrates Court. It is free to apply.

You can fill out a form online, or in writing.

You can find more information and forms on the Qld courts website.

The court will want to know what you have been experiencing. You might have to explain:

• details about the abuse – for example, ‘my partner hit me with his fist after dinner’
• how the abuse made you feel – for example, ‘I was frightened that my partner would injure me’
• when the abuse happened – it’s okay if you can’t remember exact dates.

Three things needed for a protection order?

After you fill out the application form and give it to the Magistrates Court, they will give you a court date. The court will also organise for the police to give the respondent a copy of the application. You don’t have to organise this. Be aware that the respondent will read your application.

When you apply, you should ask the court to make a temporary protection order (TPO). A TPO can give you protection as soon as possible and until the matter goes through the whole court process.

The court can make TPOs urgently. Sometimes they can do this before the respondent has a copy of the application. It is important to tell the court registry if you have any concerns for your immediate safety. You should also share if you have any concerns about your safety once the respondent has a copy of the application.  And you should include these concerns in your application form.

This can help the court decide how urgent it is to consider your TPO and what conditions you need in your TPO.

There are several ways the respondent might react after they receive a copy of the application.

Ignore the application

The respondent can ignore the application and not attend court. If they do this the court can make a TPO or final DVO against them. The court can only do this if your application meets all other legal criteria.

Agree to the DVO

The respondent can attend court and agree to the DVO. This is called consenting. The respondent will usually consent ‘without admissions’. This means they won’t admit to the domestic violence.

Ask for more time

The respondent can attend court and ask for more time. This is called an adjournment. If the court decides to adjourn the matter, they will give you a later court date.

Fight the DVO

The respondent can attend court and ask to fight the application. This is called contesting. The court does not need to remove the TPO if the respondent does this. But they might remove the TPO for other reasons.

If the respondent contests the DVO, the court will arrange a trial. This means you will have to write down all your evidence about why you think the court should make the DVO. If the police make the application for you, they will need to do this. The respondent will have to write down all their evidence about why they think the court shouldn’t make the DVO. You must both do this by a certain date.

After this, the court will give both of you a trial date. During the trial, the court will usually ask both of you questions about your evidence. This is called cross-examination.

You will need to attend each court date to pursue the application. If the police made the application for you, they must attend each court date. If you stop attending your court dates, the court can make the decision without you.

Apply for a DVO

If the respondent also files their own application for a protection order against you, this is called cross-application. If this happens you should get legal advice.

Your TPO or DVO can protect your children if they have experienced or been exposed to domestic violence. When you fill out the form for a DVO, there is a section where you can add the child’s details and ask for certain conditions.

Legal Myths: Is a protection order the same as a parenting order?

A TPO or DVO doesn’t always stop the respondent from seeing your child. You can ask the court to make changes to your TPO or DVO, so that it supports your agreed parenting arrangements.

TPOs and DVOs are not the same as family law orders and they have a different purpose. You should get legal advice about which parenting orders are appropriate.

Yes. You can apply for a DVO to be removed if it is safe to do so. You can also apply for the court to make changes to your DVO. If the court agrees to these changes, your DVO will be varied. You can ask the court to increase or decrease the conditions or the time period of your DVO, where appropriate. You should seek legal advice about what information the court will consider before applying for any changes.

What is a divorce?

A divorce is the official recognition of the end of a marriage.

The only legal requirement for applying for a divorce is the ‘irretrievable breakdown’ of the marriage. The court does not take into account who is at fault for the marriage ending. It is only necessary to prove that you and your spouse have been separated for 12 months with no likelihood of getting back together.

Once your divorce is finalised, you can remarry.

Divorce is separate from property settlement, parenting matters, and child support/maintenance matters, although you do not have to wait for a divorce before dealing with these other issues.

You should get legal advice before applying for a divorce.

How do I get a divorce?

When applying for a divorce, your former spouse doesn’t have to agree to the divorce.

To apply for a divorce in the Federal Circuit and Family Court of Australia, you or your former spouse must:

• be an Australian citizen; or
• live in Australia and regard it your permanent home; or
• normally live in Australia and have lived here for at least 12 months before applying for a divorce; and
• have been separated for 12 months.

You can still apply for a divorce if you were married overseas, or if you don’t know where your former spouse currently is, as long as you live in Australia.

What if we have children?

If you and your former spouse have children under 18 (or children that were treated as members of your family during the relationship), then the court will need to make sure that proper arrangements have been made for the children before granting you a divorce.

The court will want to know things like:

• where the children currently live.
• how the children are financially supported.
• about their health and education.
• how they will continue to maintain a relationship with both parents and other important people in their lives.

It is not necessary to have parenting orders before applying for a divorce, but you will need to provide details to the court about the children’s current circumstances and if you plan to make any changes to their circumstances.

What if we have gotten back together or reconciled?

After you separate, you and your spouse can get back together for up to 3 months without restarting the 12-month separation period required to apply for a divorce.

For example, if you’re separated for 5 months, get back together for almost 3 months and then separate again for 4 months, you’ll be considered to be separated for a total of 12 months. But, if you were back together for 4 months and separated again, your separation period will restart, and you will need to be separated for a further 12 months.

What if we have continued to live in the same home after separation?

The court will consider you have separated once the marriage has broken down ‘irretrievably’ and there is no prospect of you and your former spouse getting back together.

If you and your former spouse stayed living together after separation but had separate lives, this is called ‘separation under the one roof’.

You will need to prove to the court that you were, in fact, separated under the one roof. The court will consider whether:

• you sleep in the same bed;
• you and your former spouse have a sexual relationship;
• how you share meals and domestic duties in a different way to when you were married;
• you share money and bank accounts;
• your family and friends think of you as separated;
• you socialise or go out together.

The court will consider all these matters in the context of your situation to determine if you were separated or not.

What if I haven’t been married for long?

If you were married for less than 2 years, you can get divorced only if you and your former spouse agree to counselling. You do not have to attend counselling if special circumstances apply including when there is domestic violence and counselling is not safe.

If your former spouse refuses counselling, you can still get divorced.

Can I apply for a divorce by myself?

You can apply together for a divorce (joint application) or on your own (sole application).

If making a sole application, you must ‘serve’ the other person with the divorce application. This means giving the other person the application and other relevant documents, so they know about the court proceedings. You can’t serve your former spouse personally, but you can:

• ask a friend or family member to do it.
• pay for a professional process server to do it.
• post the divorce paperwork to them (but your former spouse will be required to post a document back to you acknowledging that they have received your divorce paperwork).

In all the above circumstances, you must complete certain court forms proving to the court the other person has been ‘served’.

What if I don’t know where my former spouse is or if there is a domestic violence order?

In certain circumstances, the court may still grant you a divorce if you are unable to serve your spouse. The court may allow you to serve your spouse in a different way other than personal service, for example, by emailing a copy of the divorce application to your former spouse. This is called ‘substituted’ service because you are substituting an alternative method for the normal process. The court usually expects you to make all reasonable efforts to locate and serve your spouse, but in some circumstances, they may excuse you from the requirement to serve the other party and this is called ‘dispensing’ with the need for service.

Do I have to tell the other party my address or contact details?

If you have safety concerns or are in fear of your spouse knowing your whereabouts, you do not have to disclose your address or contact information, but you will still need to provide an alternate address on your divorce application. This could be a post office box, an email address or friend or relative’s address.

Is there a fee?

You will have to pay a court filing fee when applying for a divorce. You can apply to the court to have this fee reduced if you hold a government concession card or if you can prove you are experiencing financial hardship.

Do I need a copy of my marriage certificate?

Yes. If you do not have a copy, you will need to obtain one, unless exceptional circumstances apply. If your marriage certificate is not in English, you will need to have it translated through a qualified interpreter. In most cases, you will need to pay a fee for an interpreter to translate your certificate and complete a court form.

How do I apply for a divorce?

Applying for a divorce occurs online through the Federal Circuit and Family Court of Australia. You can prepare the divorce papers and go to court yourself, or you can pay a solicitor to do it for you.

To apply online, you must first register for access to the Commonwealth Courts Portal. For more information, visit the Federal Circuit and Family Court of Australia website.

The website contains do it yourself kits – this gives you a step-by-step guide to filing and serving your divorce application and information about how to complete your application and other forms.

If you are unable to apply for a divorce online, you should contact the court for further information. They can give you a hardcopy application form.

Do I have to attend court?

If you are making a joint or sole application for divorce and there are no children under 18 (including children who were treated as members of your family), then you do not have to attend court.

If you are making a sole application for divorce and there are children under 18, you must attend court.

Divorce hearings are conducted over the phone, so you will not have to see your former spouse in person. If you are fearful of your spouse, you may wish to have a support person present or engage a lawyer. In certain circumstances, the court can also make special arrangements for your safety.

What happens during the divorce hearing?

If you meet all the requirements and the court is satisfied proper arrangements have been made for any children from the marriage, then your divorce will be granted, but is not yet final. The divorce order becomes final 1 month and 1 day after it’s made, unless there’s a good reason why the court shouldn’t grant the divorce in that time. The date when the divorce order becomes final is the actual divorce date. The court can order a shorter waiting period between when the divorce is granted and when it becomes final in exceptional circumstances.

The court will issue you with a certificate of divorce which is available to download and print from the Commonwealth Courts Portal.

Are there any time limits?

Once your divorce is final there is a time limit of 12 months to apply to the court for property settlement or spousal maintenance.

What if a party disputes the divorce application?

A party may not want to get divorced if they don’t consider the marriage is over or for religious or cultural reasons, but these are not sufficient reasons for opposing a divorce application. You can only oppose a divorce application in Australia if:

• you haven’t been separated for 12 months (as alleged in the application); or
• there’s no court jurisdiction (for example, if none of the parties live in Australia).

If your spouse files for a divorce and makes untruthful statements, then it is possible for you to respond to the divorce paperwork. For example, by clarifying the date of separation. However, a response is likely to have little effect on the proceedings if the court is satisfied that you have been separated for more than 12 months and all other grounds are met.

Should I change my Will?

In Queensland, divorce revokes that part of your Will that relates to your former spouse. After a divorce you should make a new Will to take into account your new circumstances. In fact, it is advisable to change your Will as soon as you separate to reflect your current wishes.

Property includes all assets (where an item is owned) and liabilities (where money is owed) of a relationship. It may include: 

• Real estate including the family home or land. 
• Cash or money in bank accounts. 
• Cars or other vehicles. 

• Superannuation. 
• Investments. 
• Shares. 
• Insurance policies. 
• Other assets like furniture and artwork. 
• Debts like credit cards, mortgages, loans and/or personal debts. 

Property includes assets and liabilities that are owned individually, with another person, or by a company or trust.  

A property settlement is the legal term for the division of property at the end of a marriage or de facto relationship. 

In Australia, there are laws about how property should be divided if you separate. These laws are set out in the Family Law Act. It is important to get legal advice about your entitlements before agreeing or signing any documents. There are many factors that need to be considered when deciding how property should be divided, including when children are involved. It may not matter who owns the property, who bought the property or who incurred the debt. You may still be entitled to a property settlement even if you did not work or contribute financially to the property.  

A property settlement can be achieved by reaching an agreement with your former partner. If you are unable to reach agreement, you can apply to the court seeking property settlement orders (provided you are within the time limits set out below).  

Do we have to reach an agreement or go to court by a certain date?  

There are time limits within which you must start a case in court to divide property or assets or sort out your finances. These time limits are: 

1. If married, an application for property division or maintenance must be made within 12 months of a divorce order becoming final. 

1. If de facto, an application for property division or maintenance must be made within 2 years from when the de facto relationship ends. 

 If the case is not started in court within the time limit, the right to pursue the claim will be lost.  

In some matters the court can give permission for a person to commence a property settlement application after the time limitation has expired, however this only occurs in exceptional circumstances. It is your responsibility to ensure that court proceedings are commenced prior to the expiration of the limitation date. 

Is property settlement the same for married and de facto partners? 

Yes, the same law relating to property settlement now applies to both married and de facto couples (who separated after 1 March 2009) when they separate.  

While there is no set formula used to divide your property after separation, the court uses a four-step process. 

Overview of the process 

An overview of the four-step process used by the court in considering each party’s entitlement is outlined below: 

Step 1 Work out the net value of the property.  

Identify all the ‘property’ in the relationship which includes assets (e.g. houses, cars, boats, inheritances and shares), debts, superannuation and any other financial resources. Once those items are identified, they then need to be valued, or some agreement should be reached about their value. 

Step 2 Assessing contributions. 

Contributions are what each party brings in, adds, or contributes to a relationship.  

The court looks at: 

• the initial contributions of the parties (meaning what assets and liabilities they held at the start of the relationship); 
• the financial and non-financial contributions:  

• financial contributions include money contributed to the acquisition, maintenance, or improvement of assets; the income of each party; and whether any inheritances have been received.  
• non-financial contributions can include any unpaid work to improve, renovate or maintain a property. Contributions made as a homemaker or parent are also considered non-financial contributions. It is important to know that financial and non-financial contributions are considered equally important under the Family Law Act); and  

• the direct and indirect contributions made.  

Step 3 Assessing future needs. 

There are considerations the Court must take into account when looking at the future needs of the parties. The most common factors that are taken into consideration include: 

• age; 
• earning capacity; 
• care arrangements for any children of your relationship; and  
• the health of each person. 

Step 4 Determining what is fair and equitable in the circumstances.   

Your lawyer will help you identify the relevant issues to your situation and give you an idea of what may be a reasonable settlement for you, and what a judge would likely decide if the matter proceeds to court. The Court will not make a property order unless it is satisfied that the proposed division of property is just and equitable. 

Most importantly, your lawyer should give you advice that is practical and realistic, with a view to helping you reach a resolution as quickly as possible. 

If you can reach an agreement with your former spouse about the division of property, you can make either an informal or formal agreement. There are two ways to formalise an agreement to make it legally binding (enforceable by a court):  

• Consent Orders; or  
• A Financial Agreement. 

Can the agreement reached be informal?

You can reach   an informal agreement about how to divide your property. However, an informal agreement is not legally binding or enforceable by a court. You can make your agreement binding by entering into consent orders or a Financial Agreement. 

What is a consent order? 

Consent Orders are an agreement between two parties that is approved by the court with the court orders then made in the agreed terms. A Consent Order is just as enforceable as if it were an order made by a Judge at a final hearing. Consent Orders have the same legal effect as any other court order and are typically the recommended approach for formalising a property settlement. Consent orders can be difficult to change or set aside once they are made. Legal advice should be obtained before signing consent orders.  

What is a financial agreement?

A Financial Agreement is a document that sets out the agreement reached between the parties. Each party must obtain independent legal advice as to the effect, advantages and disadvantages of the Financial Agreement. For a Financial Agreement to be binding, it needs to comply with specific sections of the Family Law Act 1975.  

Financial Agreements can be made before, during or at the end of  a relationship. Financial Agreements made before marriage are often referred to as “pre-nuptial agreements” or “pre-nups”.  

If you don’t agree about property arrangements, you may want to start court proceedings.  

Before commencing any proceedings, it is essential to make a genuine attempt to resolve your property dispute without going to court. 

Each party to the proceeding must comply with the pre-action procedures, which include: 

• Participating in a family dispute resolution (mediation)  
• Making a genuine offer to resolve the dispute  
• Giving written notice to the other party that you intend to apply to the court for an order. 

The court will expect the parties to have complied with the pre-action procedures and there may be consequences if they have not been complied with, including costs orders (having to pay the other party’s legal expenses).  

Your SAFETY is the most important consideration. You do not need to have to comply with the pre-action procedures if: 

• The problem is urgent 
• There has been domestic violence 
• There is a risk of domestic violence 

Not all matters are appropriate for Family Dispute Resolution. If you feel intimidated, scared or think that you could feel intimidated during the process, it is important to tell the Family Dispute Resolution Practitioner, and tell them about any history of domestic violence between yourself and the other party.  

You should not feel pressured to agree to any property settlement. If you are uncertain, do not agree or sign anything until you have received legal advice.  

If you are the Respondent to a Domestic Violence Protection Order or a Temporary Protection Order and there is a condition that prohibits you from contacting the other person, you should also obtain legal advice before any agreement is reached.  

Prior to commencing proceedings (and during proceedings) parties are expected to comply with a “duty of disclosure”. There are specific rules in property cases providing what documents must be exchanged between the parties to ascertain the extent of the property available for distribution.  

Disclosure documents include providing evidence of each party’s sources of income, interest they receive on investments, the value of property, and other financial resources, even if they have been disposed of.  

The court will expect the parties to have complied with their duty of disclosure and there may be consequences if they have not been complied with, including costs orders (having to pay the other party’s legal expenses). There are exceptions to complying with the duty of disclosure (for example, if it is not safe to do so). 

If you are married or were in a de facto relationship, you may be able to seek maintenance from your former spouse. Maintenance is financial support paid by one party to the other, in circumstances where they are unable to adequately support themselves.  Maintenance is different from child support. It is money paid to you to assist with supporting you rather than for the support of the children. If a maintenance order is made it means your former spouse will pay maintenance to you in addition to child support or child maintenance. It is not possible to make a maintenance application if you have remarried or entered into a stable and continuing de facto relationship. If you remarry or enter into a stable and continuing de facto relationship after an order is made you have an obligation to notify your former spouse immediately so that any  maintenance order can be finalised/discharged. 

If your former spouse will not agree to pay you maintenance, you can make a court application seeking an order for maintenance payments. Your right to maintenance is not automatic and it will be necessary to prove that you are unable to support yourself adequately and that your former partner has the capacity to pay maintenance after the payment of their own reasonable expenses. You will also need to declare any maintenance you receive to the taxation office and Centrelink. It is important to seek legal advice regarding any maintenance agreements or applications.  

Updating your Will and other things

After you separate you should immediately make a new Will. You should not wait until you are divorced or until you have divided the property.  

• If you die without a Will, your spouse will automatically be entitled to a large share of your assets/property.  
• If you still have a Will that leaves assets/property to your spouse, that provision is not changed because of separation, a new Will is needed to change this.  

You can locate a specialist lawyer who practices in Wills and Estates through the Queensland Law Society. You can also have a Will prepared (for free) through the Public Trustee of Queensland who can be contacted to request an appointment. 

a. You may wish to change any binding death benefit nominations that you have previously made on your insurance or superannuation. Contact your insurer/super fund to change these. 

b. If you have previously given your partner a General Power of Attorney, you can revoke it by using a prescribed form, and sending a copy to them. If you have previously given your partner an Enduring Power of Attorney, you can revoke it using a prescribed form and sending a copy to them. It is important you obtain legal advice regarding changes to any Power of Attorney.  

c. If you own any property in Queensland (a house/land/unit/townhouse etc) with your former partner, you may want to speak with a private lawyer about severing the tenancy on the house, which means changing the ownership from ‘joint tenants’ to ‘tenants in common’. If you own the property as ‘joint tenants’, it means that if you die, your interest in the property will automatically go to your partner (even if your Will says something different). To change that, you can sever the tenancy so that the property is instead owned as ‘tenants in common’. This means you still own the property together, however if you die, your partner will not automatically get your share. It will cost you money to do this. You do not need your former partner’s approval to sever the tenancy, however they will be notified.  

Do I need legal advice?

You may need legal advice if: 

• You need help to understand the property division process. 
• You’re considering entering or signing an agreement about how to divide your property. 
• You and your former spouse are unable to reach an agreement. 
• You’re negotiating with your former-spouse or attending a family dispute resolution. 
• You are thinking about applying to the court for an order about how property should be divided. 
• You are worried that your former spouse may transfer or sell an asset or has already gotten rid of property that you may be entitled to.

Keep a diary

It is a good idea to write down the important dates (marriage, separation, dates of birth), and keep records of things that are happening and any incidents of concern. 

Write a chronology (list of events in the order they happened) 

List when assets were acquired and each parties’ contributions throughout the relationship. Gather relevant documents. 

If it is safe to do so, you should gather the following documents: 

• Obtain a written market appraisal of any real estate. 
• Bank statements (for the past three years). 
• Tax assessments and returns (for the past three years). 
• Social security pension records. 
• Records of long service leave, overtime worked, payslips. 
• Life insurance policies. 
• Copies of statements for current home loans, personal loans, car loans. 
• Copies of any superannuation statements. You can also complete and lodge a Superannuation Information Form with your Superannuation fund and your former spouse’s fund for updated values. You can obtain legal advice about how to do this. 
• Value of vehicles (refer to www.RedBook.com.au or www.carsales.com.au which may assist to estimate the value of any motor vehicles). 
• Compile a list of your household furniture/collectables and their estimated worth. 
• Shares (collect copies of holdings, dividend payments, distributions, check ASX for current share price). 
• Gifts/loans (collect any loan documents, or documents [such as cards] that came with gifts to show intention at the time the funds were received). 
• Trust records (copies of deeds and estimate the value of Trust assets/debts). 
• Business records (family, trustee/director/shareholder). Request copy of Business Activity Statements from ex-partner or from the accountant if you have the authority. 
• Collect evidence of future needs (medical or psychiatrist reports which indicate whether there are factors which prevent you from maintaining gainful employment). 

How are arrangements for children made after separation?

All families are different. When considering what parenting arrangements should be made after separation, it is important to make sure the arrangements are safe, in your children’s best interests and practical.

There are a number of ways that arrangements are made for children after parents separate. If parents can reach an agreement, they can leave it as an unwritten, informal arrangement. This can work for parents who are easily able to communicate with each other and trust that the other person will follow the agreement.

Parenting arrangements are generally in the form of:

• Unwritten, informal arrangements.
• A written parenting plan.
• A consent order approved by the court with the agreement of both parties.
• A parenting order made by the court (generally made if you can’t reach an agreement).

What can be included in a parenting arrangement?

Parenting arrangements can cover a wide range of issues including, but not limited to:

• Where a child lives.
• Whom the child spends time with.
• How the child will communicate with each parent and other significant people.
• Where the child will attend school or childcare.
• Medical or health issues.
• Religious or cultural practices.
• Who has ‘parental responsibility’ for the child with respect to deciding major long-term issues for your child (for example, their education, name, health, cultural or religious upbringing, living arrangements).
• How parents will communicate with each other.

What is a parenting plan?

A parenting plan is a written agreement between the parents that sets out the care arrangements for their children.

A parenting plan is an informal way of agreeing on parenting arrangements. You should not feel pressured by the other parent to agree to any terms that you are not comfortable with.

Parenting plans do not need to be in a specific form or witnessed. However, they must be signed and dated. It is best to get legal advice prior to making a parenting plan.

An advantage of a parenting plan is that it can be changed at any time, provided both parents agree. This is done by making a new parenting plan which is signed and dated.  For example, you may decide to make a new parenting plan if the needs or routines of your children change.

Unlike a court order, a parenting plan is not legally enforceable, and you cannot force the other parent to follow the parenting plan. If the other parent is not following the parenting plan, it is important to get legal advice about your options.

Some other issues to be aware of before agreeing to a parenting plan:

• If you apply to the court for a parenting order after you have already made a parenting plan, the court does not have to follow the terms of your parenting plan, but it will consider it when deciding what kind of parenting orders to make.
• If you already have a parenting order or a consent order, a parenting plan made after the order will vary the terms of the original order. That is, the terms of the original order will no longer be legally enforceable. The only exception to this is if your original order states that it cannot be varied by a parenting plan or otherwise. If you are considering varying a parenting order or a consent order, you should always get legal advice first.

What is a consent order?

You can make your parenting agreement legally binding by applying to the court for a consent order.

To do this, you need to fill in a court form called an “Application for Consent Order” and attach a copy of your proposed parenting arrangement.

The application and draft orders must be signed, dated and witnessed by an appropriate witness (for example, a Justice of the Peace or a lawyer). You don’t need a lawyer to apply for consent orders, but you should get legal advice to ensure that your consent order is safe, fair and workable before filing it as it will affect your future rights. It is a good idea to have a lawyer review your draft orders as the wording of a consent order needs to be specific enough so it can be enforced by the court if a parent breaches the order.

Once the consent order is filed with the court, the court will consider if the orders you propose are in the children’s best interests. If the court approves the arrangements, it becomes a court order known as a ‘consent order’ (or a ‘parenting order’). A consent order has the same effect as if the parties went to court and a judge made the order.

There is a cost to file a consent order application and you can speak to the court registry to determine the cost prior to filing. You may be eligible for a waiver of the fee, for example, if you hold a concession card.

It is important to get legal advice before entering into consent orders as they can only be changed if both parents agree. This is done by entering further consent orders, a parenting plan or a parenting order.

If parents cannot agree to change a consent order, one parent will have to apply to the court to change the agreement. It can be difficult to get the court to change a consent order unless circumstances have changed significantly since the consent order was made. You should get legal advice if you want to change a consent order before applying to the court.

Is it better for me to enter into a parenting plan or a consent order?

If you have concerns that your ex-partner may not stick to the agreement that you have made, you should consider entering into consent orders rather than a parenting plan. Every circumstance is different and you should get legal advice before signing a consent order.

What if we can’t agree on any parenting arrangements or it is not safe to negotiate with the other parent?

If you can’t agree or it is not safe to negotiate with the other parent, you can apply to the court for a parenting order.

There are certain steps that parents need to take before going to court. These are called the ‘pre-action procedures.’ For example, parties are expected to try and reach an agreement by attending a family dispute resolution, making a written offer to settle your disagreement and notifying the other parent in writing that you intend to apply to a court. You do not have to take these steps if it is not safe for you or your children, but you should get legal advice first.

What is a parenting order?

A parenting order is made by the court. The court will decide the parenting arrangements for your children and your ‘parental responsibilities.’

A parenting order is legally binding and enforceable. There can be serious consequences if a parenting order is not followed.

Do I need legal advice?

It is a good idea to get legal advice so that you are aware of your rights and responsibilities before agreeing to any parenting arrangements. You may need legal advice if:

• You or your children are unsafe or are at risk of harm (for example, there are risks related to family violence or because of drug or alcohol misuse).
• You and the other parent cannot agree about parenting arrangements.
• You are thinking about signing a parenting plan or consent orders.
• You want to ask the court to make a parenting order (or the other parent has already applied to the court).
• You have an existing parenting plan or order that you want to make changes to.
• You have signed a parenting plan or consent order you did not agree with and felt pressured, threatened or intimated to accept.

Deciding how much time a child should spend with each parent, the court considers your circumstances and what would be in your child’s best interests.

When deciding what is in the child’s best interests, the court must consider these six factors.

One factor is not more important than the others.

a. What arrangements would promote the safety of the children and each person who cares for the children.

This factor focuses on keeping children and carers physically and psychologically safe from being subjected to or exposed to family violence, abuse, neglect or other harm.  The court is required to consider any history of family violence, abuse or neglect and any family violence orders.

b. The views of the child.

How much weight is given to the child’s views will depend on the age of the child and their level of maturity as determined by the Court. There is no set age when a child can decide where they will live or how much time they will have with the other parent.

The court doesn’t usually hear directly from children and children don’t usually go into court. Children’s views are mostly made known to the court through a report or an Independent Children’s Lawyer.  A child is never required to express a view if they don’t want to.

c. The developmental, psychological, emotional and cultural needs of the child.

This would include things like:

• the age of the child
• Whether the child has any special medical needs that might impact the child’s physical or emotional growth or their care needs
• The emotional nature of the child, for example, is the child particularly shy or uncomfortable in new situations?)
• The culture of the child’s family and the culture that the child has grown up with.

d. The capacity of each person to provide for the child’s developmental, psychological and emotional and cultural needs.

This would take into account things like:

• Parent’s working arrangements and whether they would be available to care for the child when they are in their care
• Appropriate accommodation
• Appropriate ways to transport the child to any necessary appointments
• Any mental and physical ailments which would impact somebody’s ability to care for the physical and emotional needs of the child
• A parent’s knowledge and previous involvement in managing any complex needs of the child.

e. The benefit to the child of being able to have a relationship with the child’s parents and other people who are significant to the child, where it is safe to do so.

f. Anything else that is relevant to the particular circumstances of the child.

If a child is Aboriginal or Torres Strait Islander, the court must also consider the additional considerations:

1. The child’s right to enjoy their Aboriginal or Torres Strait Islander culture by having the support, opportunity and encouragement necessary;
   a. To connect with and maintain their connection with members of their family and with their community, culture, country and language
   b. To explore the full extent of that culture, consistent with their age and development level and views
   c. To develop a positive appreciation of that culture
2. How the proposed parenting arrangements would impact upon that right.

The law encourages families who are in dispute regarding the arrangements for children or the division of property to come to an agreement where possible.

Family dispute resolution (FDR) is a way of resolving your family law problems, by agreement, without going to court. It can be called ‘FDR’ or ‘mediation’.

In this process, an independent person helps to try to resolve some or all of the family law problems. The independent person is called a ‘family dispute resolution practitioner’ or ‘FDRP’ or ‘mediator’. They are trained in assisting people to resolve disputes. They do not have any legal powers, they do not make any decisions and they do not give legal advice. They simply try to assist people to reach agreement.

FDR can also be used to resolve disputes about:

• Dividing your property;
• Maintenance matters; and
• Child support.

FDR can be used at any time including before, during or after a separation or once court proceedings have commenced.

Before you make an application to a court for parenting orders, you must have attempted to engage in family dispute resolution to resolve your dispute. There are some exceptions, including when it is not safe to do so.

Many different organisations provide low cost or free family dispute resolution including:

• Legal Aid Queensland Ph: 1300 65 11 88
• Relationships Australia Ph: 1300 364 277
• Family Relationships Centre Ph: 1800 050 321
• Dispute Resolution Centre Ph: 1800 017 288

You can contact the family dispute resolution service and they will talk you through their individual process.

Generally, both parties will share the costs of the family dispute resolution. There are some exceptions to this.

Generally, one person contacts the dispute resolution service and the service will invite the other person to attend. If the other person refuses to respond or participate, then the service will let you know. They will also issue you a certificate (called a “section 60I certificate”) which you will need if you want to start court proceedings.

If the other person agrees to participate, the service will speak to each of you about what your individual concerns and goals are and will set a date for a family dispute resolution. You will then both attend the dispute resolution and try to reach an agreement. Whether you reach an agreement or not, the service will provide you with a section 60I certificate which you will need if you want to start court proceedings.

Different services can provide different options to avoid any direct contact between the parties. These include putting you in separate rooms, having you attend separate locations, or doing a conference over the phone so that the dispute resolution practitioner is “shuttling” between the parties.

If you feel intimidated, scared or think that you could feel intimidated during the process, it is important to tell the family dispute resolution practitioner, and tell them about any history of domestic violence between yourself and the other person.

Not all matters are appropriate for family dispute resolution. Your safety is the most important consideration. You do not need to have family dispute resolution if:

• The problem is urgent.
• There has been domestic violence.
• There is a risk of domestic violence.
• There has been child abuse.
• There is a risk that a child could be abused if things are delayed.

You should get legal advice if you think one of the above issues apply to your situation.

If you reach an agreement about parenting arrangements, you can either:

• Keep it informal.
• Write down the agreement (this is called a ‘parenting plan’).
• Make formal parenting orders (this is called ‘parenting orders’ or ‘consent orders’).

See our Children and Parenting fact sheet for more information about the different types of parenting agreements.

In Australia, parents bear the responsibility for financial support for their children. This responsibility is met by parents either having their children live with them or, following separation, by providing financial child support to the parent or other family member with whom the children live. Parents are liable to support their children whether or not the parents are or were married, or in a de facto relationship.* The responsibility for financial support still arises even if the parents were never in a relationship or if one or both parents never intended to have a child.

*A de facto relationship is defined in section 4AA of the Family Law Act 1975. The law requires that you and your former partner had a relationship as a couple living together on a genuine domestic basis. A de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex.

Child support is a payment made by one parent to the other to help with the cost of looking after children. In some situations, it may be paid by one or both parents to another person who is looking after the children. Child support is usually paid until a child turns 18 but there are some situations where it may be stopped early, including if a child becomes self-sufficient; marries; or enters into a de-facto relationship.

Parents can reach agreement about the payment of child support privately, or they can apply to Services Australia (Child Support) for an administrative assessment. To be eligible for a child support assessment you must: meet residence rules, which requires one parent to be living in Australia; and be the legal parent or non-parent carer of the child/ren.

Services Australia (Child Support) (‘CS’) will only issue a child support assessment if you can prove the paying parent is a biological, adoptive or same-sex parent.

Both parents can agree to have child support collected privately, for example, one parent pays child support into the other parent’s bank account. This does not have to be in writing.

Private collection can work well if both parents complete tax returns and where there are no issues of family violence including financial abuse.

If private payments fall behind, stop, or you no longer agree on the amount of child support payable, you should get legal advice as soon as possible.

If you are the parent in receipt of child support, and are experiencing difficulties with the paying parent, you can contact Services Australia (Child Support) (“CS”) and ask them to collect the child support instead. CS can take over collection of future payments and any outstanding payments generally going back 3 months,

Services Australia (Child Support) (‘CS’) is responsible for collecting and enforcing payments of child support.

CS can collect the child support money on your behalf from the other parent.

You will need to directly request that CS collect the money for you. If you do not do this, they will register your case as a “private collection” case and you will be expected to collect the child support monies yourself. However, even if you nominate to privately collect initially, you can always contact CS at a later stage to request their assistance to collect the money.

If the other parent fails to pay child support CS can do a number of things to enforce payment, such as deducting money from the other parent’s wages and intercepting any tax return that may be due to them at the end of the financial year.

If CS is responsible for collecting your child support, they will be responsible for recovering outstanding payments and debts.

If you were collecting child support privately, then you will have to try and recovery any outstanding money from the other parent yourself.

If parents agree, they can make a legally enforceable agreement about the amount, frequency and method of child support payments after separation. If you are not sure how much child support you are entitled to, you can use the amount that Services Australia (Child Support) (“CS”) would assess as a guide. You can get this figure either by ringing CS who will work it out for you, or by using the child support estimator on the CS website. You should get legal advice prior to entering into a private agreement.

If you are receiving payments from Centrelink, you cannot agree to accept less child support than the amount determined by CS.

You must register your agreement with CS if you would like their assistance to collect your child support.

CS encourages people to reach agreement about child support and arrange their own collection. If you do not believe this is possible in your circumstances because you are fearful of your partner or for any other reason, you should advise CS that you would like them to assess and collect your child support.

Types of private child support agreements

1. Binding agreement

A binding agreement must be in writing and signed by both parents, who have had independent legal advice before they sign. It is a long-term agreement which can only be ended by a new agreement or a court order. As both parties will have had independent legal advice prior to entering into a binding agreement, a court order to change a binding agreement may be difficult to obtain. Agreements entered into after 1 July 2018 may be suspended when the parent receiving child support is no longer an eligible carer of the child.

2. Limited agreement

A limited agreement is a less formal agreement between the parents for the payment of child support, and there must already be an assessment in place for the child/ren. Limited agreements are easier to end than a binding agreement and will run for no more than three years, at which time the parents can either enter into a new limited agreement or the case will revert to the child support assessment with CS.

If you apply for a parenting payment you will be required by Centrelink to seek child support from the other parent, unless there are exceptional circumstances, such as domestic violence. If an exceptional circumstance does not apply to your case and you fail to seek child support, then your family tax payments will be reduced. If you find yourself in this situation it is important to obtain legal advice as soon as possible as strict time limits apply. If you do not meet the time limits and there is a lengthy delay, without reasonable explanation, then Centrelink may elect to not back-pay any reduced Centrelink payments.

If you are escaping domestic violence and you are fearful about applying for child support, then you should speak to a social worker at Centrelink about applying for an exemption.

If you apply for a birth certificate and/or child support and the father of your child refuses to admit that he is the parent, there are a number of steps you can take.

If you attempt to register your child’s birth and the other parent refuses to sign the birth registration statement you should still provide all the details to Births, Deaths, and Marriages. The Registrar will then contact the father and confirm whether he admits parentage. If he does, then he can be added to your child’s birth certificate, if not then a record will be kept with the registry for future reference (particularly if a DNA parentage test report or court order is later provided).

You will also need to make an application for child support. Once you apply, Services Australia (Child Support) (“CS”) will review your application. If you and the father were married at the time of conception (or the child was born within 44 to 20 weeks of when the mother and father lived together) then an automatic presumption of parentage will apply, and the father will be assessed to pay child support.

If no presumption applies, CS will contact the father to see whether he admits to being the parent. If the father denies parentage, CS will refuse your child support application. You will then need to seek legal advice so that you can obtain assistance to either seek court orders declaring parentage or undergo a DNA parentage test. If the father refuses to undergo parentage testing the court can draw inferences from that refusal.

If a child or children over 18 can’t support themselves, a court can make an order for parents to continue to provide financial support because they:

• are completing their secondary or tertiary education (e.g. secondary school, TAFE, university, apprenticeship);
• have a mental or physical disability.

This is called adult child maintenance.

If a child turns 18 while completing their final year of secondary school, the parent receiving payments can apply to the Services Australia (Child Support) to extend support until the end of the school year. The application needs to be made before the child turns 18 and can be made by a parent or a child.

The amount of maintenance to be paid will depend on the child’s necessary expenses, each parent’s financial position and their situation. If you find yourself in this position, we recommend that you obtain legal advice.

Parents can make their own agreement or file consent orders in court (where both parents agree to the orders). If an agreement can’t be reached, the court can decide the amount to be paid. A court order for ongoing payments can be registered for collection with Services Australia (Child Support) and can be paid to the parent or the child.

It is possible to get a court order requiring the father to contribute to your out-of-pocket child-bearing expenses, if you are not married to the father.

This is separate to child support and involves a private application to the Federal Circuit and Family Court of Australia. As a mother, you are entitled to financial support (childbirth maintenance) from the child’s father for some living and medical expenses from 2 months before a child is born until 3 months after the birth.

As a mother, you are also entitled to childbirth maintenance if you had to stop working early in the pregnancy due to a medical condition. In this case, the entitlement starts from the day you stop working.

If the child is stillborn or dies during childbirth, then, if you are the mother, you can claim some expenses for the child’s funeral. If the mother dies and the death is a result of the pregnancy or birth the mother’s family can make a claim for some funeral expenses. The application must be filed within 12 months of the birth of your child.

Services Australia (Child Support) (“CS”) uses a formula to work out how much child support you should pay or receive. The formula takes into account:

• The income of each parent and the combined income of both parents;
• The care arrangements for the child/ren being the amount of actual time the child/ren spend with each parent;
• The number of children;
• The child/ren’s age; and
• The costs of raising children (based on Australian research).

The amount of child support to be paid may change depending on how much time the child spends with each parent. CS will take into account any other dependent children when calculating your child support.

Change of assessment

You should tell Services Australia (Child Support) (“CS”) if your circumstances change. The amount of child support payable may be varied to reflect changes to your situation including if the amount of care you provide for your child/ren changes, if you have a child with another partner.

You can also apply to vary your child support assessments in special circumstances.

You can apply for a Change of Assessment in Special Circumstances, which is a review of the decision from CS. You should seek legal advice before applying for a change of assessment.

If you lodge a change of assessment application, you will be required to set out the reasons that you say the assessment should be changed and disclose details of your own financial circumstances. The paying parent will be provided with a copy of your application. Your application will be determined by CS after the paying parent has had an opportunity to reply and you have both been interviewed. The outcome may have an impact on the amount of Centrelink benefit you receive.

Objections to assessment

If you believe a decision by CS in relation to your case is incorrect (including if an application for a change of assessment has been unsuccessful) you can object to that decision in writing. You need to explain the details of the decision you are objecting to and why you think CS’s decision is incorrect. CS will then make a decision about your objection. If you do not agree with the CS’s decision to your objection, you may apply to the Administrative Appeals Tribunal (AAT) – Social Services & Child Support (SSCS) division for a review of the objection decision.

If you don’t agree with the first decision, you may be able to apply to the General Division of the AAT for second review (provided the decision relates to percentage of child’s care) or you may be able to appeal the decision to the Federal Circuit and Family Court of Australia (FCFCoA).

While your objection is being considered, the original decision by CS will apply unless you seek a stay order. If you are appealing a decision, you may need to apply for a stay order (for example, if you can’t afford to keep paying your child support). You should seek legal advice before applying for a stay order.

Federal Circuit and Family Court of Australia appeals

The review mechanism available from a decision of the SSCS division is an appeal to the Federal Circuit and Family Court of Australia on a point of law (not an error about the facts). You should seek legal advice before lodging an appeal. You must file an appeal from a decision of the SSCS division within 28 days of receiving a written statement of reasons for the decision.