What happens when we split up?

Try reaching an agreement.

Before you go to court you must try and sort out the problem by yarning with the family or using a trained mediator to help solve disagreements, but only if it is safe.

This is called mediation or family dispute resolution. If your case is urgent you can go straight to court, you don’t have to try mediation.

Mediation is a very good way to work out your differences because:

• it is fast,
• doesn’t cost too much and
• is often less stressful than going to court.

Mediation lets parents, grandparents and relatives make their own decisions about the kids.

There are many services that help with mediation including Legal Aid NSW, the Family Relationship Advice Line and Family Relationship Centres, which help separating families reach agreements.

Aboriginal and Torres Strait Islander family mediators work with Aboriginal and Torres Strait Islander families to reach an agreement that both parties are happy with – an agreement that is best for the kids.

Legal Aid NSW can help with mediation if at least one of you has been granted legal aid. Our family dispute resolution service is available to help separated parents, grandparents and other people who are important in the lives of the kids.

If we can’t sort it out ourselves, then what?

The court will decide what’s best for your kids and make a parenting order saying what should happen. The courts try to make decisions in a child’s best interests based on keeping kids and their carers safe from any harm, abuse, neglect or family violence. Courts also listen to a kid’s view and look at their needs and how well they can be met, and a kid’s relationship to any brothers or sisters and grandparents and kin.

The law specifically says the court must consider how parenting orders will affect a kid’s right to enjoy and connect with their Aboriginal or Torres Strait Islander culture.

This means the court has to look at whether the orders help give the kid the support, opportunity and encouragement they need to be connected with members of their family, community, culture, country and language.

The parenting order will decide things like:

• who kids will live with
• how much time kids will spend with a parent or other important people
• how parenting responsibilities will be shared, and
• how parents will talk to each other about their kids.

If the other parent has broken a court parenting order affecting your kids, you can either:

• try to resolve the conflict through counselling or mediation services if it is safe to do so, or
• apply to the court saying your ex has broken the order.

You may need to apply to the court for what’s called a recovery order, even if the court has already made parenting orders about where your child lives. This order allows the police (both state and federal) to find and return your kids to you.

If you do not have a parenting order that the kids live with or spend time with you, you need to apply to the court for this order, as well as a recovery order. This can be done at the same time.

If you want to formally change a child’s name, you must apply to the NSW Registry of Births, Deaths and Marriages and you will need the agreement of the other parent or a court order. Kids aged 12 years and over must agree to their change of name.

Either parent can apply to the court for an order to change the name (if the other parent won’t agree) or to stop a parent from using a different name for a child.

The court will make its decision based on what is best for the kids.

If the kids are under 18, the court will consider the whole situation, not just the kids’ views.

Sometimes the court may ask for an independent lawyer to represent the kids’ interests. This independent children’s lawyer may interview the kids without the parents being there, or contact schools and doctors. They may ask for a court expert to give advice if they think that will help the court decide who the kids should live with and spend time with.

Grandparents (or anyone who wants a relationship with the kids) can apply for an order to spend time with them. Grandparents may have to show that spending time with their grandkids is in the kid’s best interests and safe for everyone involved.

For more information about grandparents and other family members, see our publication Caring for kids in Aboriginal and Torres Strait Islander families.

Our family dispute resolution service is available to help separated parents, grandparents and other people who are important to the lives of the kids.

If there ARE court orders over the kids

You will need to look at the order to see whether it allows you to move. If the order says your kids must spend each weekend with the other parent and you plan to move from Sydney to the Gold Coast, you may be in breach if you moved. You then need to have the orders changed, with the other parent’s agreement or by the court, before you can move.

If there AREN'T court orders over the kids

You will not be breaching any orders by moving. However the other parent can ask the court for an order to stop you from leaving the area with the kids, or an order for the kids to return to the area even if you’ve already left with them.

The court will always look at what is in the best interests of the child.

When you first split up, you don’t need to do anything to register the separation and there are no documents to sign.

If you are legally married and want to formally end the marriage you must apply for a divorce. You must be separated for at least 12 months before you can apply for a divorce. A divorce will only legally end your marriage but it won’t sort out issues about your kids or how your property will be divided.

Although you can NOT apply to the court for a divorce until you have been separated for at least 12 months, you CAN start talking about property (and kids) as soon as the marriage has broken down. Many matters can be worked out before you file the divorce application.

For more information about applying for a divorce, contact LawAccess NSW via web chat or by calling 1300 888 529 between 9am and 5pm, Monday to Friday (excluding public holidays).

Your safety is important. If you feel unsafe at home get advice as soon as you can.

Both you and your ex are entitled to live in your home after separation regardless of whose name is on the rental agreement or the title of the property. Neither of you can be forced to leave just because the property is in the other person’s name, unless a court orders it.

If you do move out, your share in the property won’t be affected. Any rights you have built up during the relationship will remain even if you leave the property. If there is family violence you should seek legal advice and help immediately.

You can start talking about property as soon as you split up. The same laws about property apply whether or not you were married or in a de facto relationship.

Property includes all things owned, by either one of you or both of you, including money, cars, furniture, property owned before marriage, gifts, inheritance, superannuation and redundancy payouts.

You must start property or spouse maintenance proceedings within 12 months of your divorce becoming final. If you were in a defacto relationship, you must start property and maintenance proceedings within two years of separation. Spouse maintenance is when a person gives regular money to their ex.

Superannuation is split depending on a number of things, including the type of superannuation scheme you or your ex have. You should get advice from a lawyer if you or your ex have any assets or debts that need to be divided.

It will consider many things including property owned before the marriage, how long you were married, what contributions the other partner made and future needs. These include whether one parent will be supporting a child, the age and health of each parent and whether they are able to get a job and earn a wage.

Looking after the kids and other contributions to the family will be considered just as important as any money brought in by the main wage earner.

It is very important to get legal advice.

Both parents need to work out how their kids’ food, housing, clothes, school costs and other activities and expenses will be paid for after separation. The money paid by one parent to the other (or to someone else if the kids do not live with a parent) is called “child support” or “child maintenance”. Sometimes these payments are made by one parent to the other, even if the kids are living part-time with the parent who is paying child support.

Services Australia looks after child support payments. You can ask them to work out how much child support should be paid. This is called a “child support assessment”.

Once a child support assessment is made by Services Australia, parents can arrange to make and receive these payments on their own. Or the person who should receive the child support payments can ask Centrelink to collect the money for them.

Parents can also make Child Support Agreements, which set out in writing how much, how often and how the child support payments are made. Child Support Agreements are very serious and you should get independent legal advice before signing one.

To get a child support assessment from Services Australia you must prove that your ex is the biological parent or has legally adopted the child. The proof that they need includes the name of your ex on the child’s birth certificate, showing that you were married to each other at the time of the child’s birth, or a statutory declaration from your ex stating that he is the father.

If you don’t have a child support assessment Centrelink might pay you less family tax benefit. So it’s a good idea to talk to a lawyer about getting proof of parentage. You may need to go to court and possibly get DNA testing done by an approved DNA testing lab. If you are afraid about applying for child support, a lawyer can give you advice getting an ‘exemption’ so Centrelink will put your family tax benefit back at the higher rate.

Legal Aid NSW has special child support lawyers that help with these sorts of problems. You can make an appointment to talk to us by calling 02 9633 9916 or 1800 451 784.

See our publication Hey you mob – need help with child support?

You can also get help from a community legal centre or a private lawyer. In some cases Legal Aid NSW may be able to pay a private lawyer to help you.

Contact Services Australia to find out what you can do. It will depend on your circumstances but chances are that if you lose your job you will be able to pay less child support. Contact Services Australia via phone on 131 272. It’s important to let them know early about changes to your income.

If you don’t live with the kids full time you must financially support them until they are at least 18 years old. Your ex’s new partner does not have a legal obligation to support your child.

Child support lasts until your kids are 18. If your kids will still be in high school when they turn 18, you can ask for it to be extended until the end of that school year. Sometimes child support keeps going after the child is 18 for educational expenses or if there is an ongoing disability, but only with a court order. You will need to get legal advice.

You can get free legal advice from Legal Aid NSW about child support.

See our publication Hey you mob – need help with child support?

LawAccess NSW

A free information service run by Legal Aid NSW. They have a culturally appropriate legal information and referral service for Aboriginal and Torres Strait Islander people with a legal problem in NSW. Contact LawAccess NSW via web chat or call 1300 888 529 between 9am and 5pm, Monday to Friday (excluding public holidays).

Family Law Service for Aboriginal Communities (FamAC)

FamAC is an Aboriginal led service at Legal Aid NSW made up of lawyers, Aboriginal Field Officers and mental health caseworkers, who are dedicated to assisting Aboriginal and Torres Strait Islander families and children in family law and care and protection matters. Call FamAC on (02) 9407 2941.

Law Society of NSW Solicitor Referral Service

Call (02) 9926 0300 for referral to private lawyers.

Women’s Legal Service NSW

Call (02) 8745 6988 in metro areas or 1800 801 501 in regional areas.

First Nations Women’s Legal Service Contact Line

Call 1800 639 784

Wirringa Baiya Aboriginal Women’s Legal Centre

Call (02) 9569 3847 or 1800 686 587

Domestic Violence Unit (DVU)

A dedicated statewide service of Legal Aid NSW bringing together specialist domestic violence lawyers, social workers and financial counsellors. Call 1800 979 529.

Women’s Domestic Violence Court Advocacy Services (WDVCAS)

WDVCASs assist women and children experiencing domestic violence get legal protection from the court. Call 1300 WDVCAS (1300 938 227)

Federal Circuit and Family Court of Australia

Call 1300 352 000 or visit the Federal Circuit and Family Court of Australia website.

Legal Aid NSW Family Dispute Resolution (FDR) Service

Call (02) 9219 5118 or (02) 9219 5119

Family Relationship Centres and Family Relationship Advice Line

Call 1800 050 321 or visit Family Relationships Online

CatholicCare Family Dispute Resolution (FDR) Service

Call 13 18 19

Community Justice Centres

Call 1800 990 777

Relationships Australia Mediation Service

Call 1300 364 277

Interrelate Family Centres

Call 1300 473 528

Centrelink

Call 136 150

Services Australia (Child Support)

Call 131 272

Australian Federal Police

Call (02) 5126 0000

Child Protection Helpline

Call 132 111

NSW Registry of Births, Deaths and Marriages

Call 13 77 88