FAQ COMMUNITY LEGAL SERVICE FOR FAMILY LAW

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Frequently Asked Questions

TCLS & ICLS (FAMILY)


 

Eligibility

Am I eligible for this service?
Our Family Law service is provided for those members of the community who are vulnerable and marginalised, subject to a general assessment of your circumstances and a conflict of interest check.

 

How will this service help me?

 

  • Our Family Law practitioners may provide you with legal advice on parenting matters, divorce or domestic violence issues.
  • We also provide information sessions on family law matters in conjunction with the Toowoomba Family Relationships Centre.
  • Individual legal advice on parenting issues.
  • Information sessions in conjunction with Toowoomba Family Relationship Centre.

 

How do I access this service?

 

For individual appointments on Monday evening 5.00-7.00 pm or Tuesday afternoons 1.00-4.30 pm. Phone 07 4699 5444

For group sessions Phone 07 4699 5444 for further information.

 

Will I be charged for the advice?

 

We provide free advice and representation to eligible clients.  Our funding for this service comes from the Australian Government Attorney-General’s Department.

 

Contact details

 

Phone 07 4699 5444 or 1300 348 248

FAQ’S

PARENTING

My partner and I have decided to separate and need to organize the time the children spend with each of us. How can we do this?
If you and your partner can come to an agreement you may make any arrangement that works for you and the children that is in the children’s best interests.

 

Your agreement can remain unwritten but can also be recorded as a written parenting plan which is signed by each of you or you can formalise the agreement as Consent Orders which are submitted to the Family Court.

My partner and I cannot agree on what is best for the children. What do we do now?
You may contact an agency such as TASC or Legal Aid Queensland or approach a private law firm for legal advice.

 

If you and your partner only need assistance to come to an agreement contact the Family Relationship Centre in Toowoomba or Ipswich where qualified and registered family mediators will guide you through an agreement to a parenting plan.

Do we have to go to court?
You will only need to go to court if you and your partner cannot come to an agreement or if you consider the safety and well-being of your children are at risk.

   

Before taking the step towards court you will first have to attend mediation (unless the children are at risk of harm or the matter is urgent or family violence) and show that you have each made a genuine effort to come to an agreement.  If no agreement is possible, or one party refuses to attend, the mediator will issue a certificate of attendance at mediation, often referred to as a 60-I certificate.

What is a parenting Plan?
This is a written agreement between you about the arrangements you make for who the children live with and the time spent with each parent.  It may also cover other methods of communication such as telephone and email, decisions about special occasions such as Christmas, birthdays as well as school holidays and extra-curricular activities.

 

From a legal perspective a parenting plan cannot be enforced by the courts but if the agreement breaks down and one of you seeks the courts’ assistance to resolve the matter, the parenting plan may be taken into consideration by the court as evidence of your original intentions.

What are Consent Orders?
Again, these are your written agreement for arrangements you make for who the children live with and spend time with, other methods of communication, school holidays, extra-curricular activities, special occasions, travel arrangements, passport arrangements.

 

However, Consent Orders are more specifically drafted than a parenting plan and a form providing your personal details must be completed and filed in the Registry of the Family Court of Australia.

 

Once filed, a Registrar of the Family Court will review the agreement and, if satisfied that the agreement is in the Best Interests of the Children, will formalise them with the seal of the Court.

 

If a Consent Order is breached and the breach not remedied in mediation, the issue may be brought before the courts.

 

For more information:

http://www.legalaid.qld.gov.au/publications/Factsheets-and-guides/Legal-information-guides/How-to-apply-for-a-domestic-violence-protection-order/Pages/what-is-domestic-and-family-violence.aspx

My partner has taken the children and won’t bring them back home and won’t let me see them. How do I get them back?
In these circumstances the quicker you act the easier it will be to resolve the matter.

 

You may need to arrange an urgent mediation if you are still in contact with your partner, but if that is not possible you may need to make an urgent application to the Court.

 

The action taken may depend on the type of agreement you and your partner have for the care of the children.

 

As each case will have different circumstances an urgent appointment with a lawyer to review your options would be the best place to start.

 

The following link will provide you with more detailed information.

http://www.familylawcourts.gov.au/wps/wcm/connect/FLC/Home/Publications/Family+Law+Courts+publications/Recovery+orders+brochure

 

More detailed information on parenting plans and consent orders can be found on the following Legal Aid link.

Divorce

What must I prove to the courts to obtain a divorce?
You must only affirm that your marriage has “irretrievably broken down” and that there is no likelihood of reconciliation.
When can I divorce my partner?
You must be separated for 12 months or more.

 

It is possible that this 12 months period can include a short reconciliation but any reconciliation greater than a couple of months will cause the 12 month requirement to start over.

My partner and I have only been married for a short time. Can we apply for a divorce?
If you have been married for less than 2 years the court requires you to attend counselling and provide a certificate of attendance from the counsellor with your application.

 

You will have to be separated for 12 months or more before you submit your application.

My partner and I separated over 12 months ago but have continued to live in the same house. Can we apply for a divorce now?
This circumstance is referred to as “Separation under one roof”.  It is possible to be granted a divorce in these circumstances but you must prove that the marriage has irretrievably broken down and that there is no likelihood of reconciliation.

 

These requirements are more difficult to establish if there is no obvious separation so you and your partner will each need to file an affidavit outlining the reasons for remaining in the same home as well as evidence of separate life styles and financial circumstances.  If possible, an affidavit from a friend and/or a relative would strengthen your application.

 

The following link will provide you with more detailed information.

http://www.familylawcourts.gov.au/wps/wcm/connect/FLC/Home/Publications/Family+Law+Courts+publications/Separated+but+living+under+one+roof

Do we have to attend the divorce hearing?
If you have children under the age of 18 you will need to attend the hearing as the Registrar hearing your application will need to ensure that any arrangements made for the children are in their best interests.

 

If you have been living under one roof for any part of the 12 month requirement or if the respondent party challenges the application, you will be required to attend the hearing.

 

If you are unable to attend the court in person you may ask to appear by telephone.  To do this you will need to submit a form to the court registry.

 

If you have no children, or there are over the age of 18, and there are no complicating factors, you will not need to attend the hearing and will be informed of the result in due course.

What if I don’t want to divorce my partner?
In Australia we have a ‘no fault’ system for divorce. It is enough that one party has communicated to the other that they no longer wish to be married, that the marriage has irretrievably broken down and that there is no likelihood of reconciliation.

 

If you consider that there are legal reasons that a divorce should not be granted then you may complete a ‘Response’ form and submit it to the Registry.

What will it cost me to apply for a divorce?
The Registry of the Federal Circuit Court or their website will provide you with the current fee which will have to accompany your application.

 

It is possible to have the fee, or part of it, waived if you have a current Health Care Card.  You will need to submit a Fee waiver form with your application.

 

The following link will provide you with more information.

http://www.federalcircuitcourt.gov.au/pubs/html/online_divorce.html

 

DOMESTIC VIOLENCE

Is Domestic Violence only physical violence?
No, you could be in a violent relationship not only if you experience physical and sexual violence but experience abuse such as psychological, emotional, economic, or if your partner threatens you, applies coercive or controlling behaviour to you and causes you to fear for your safety or wellbeing or the safety and wellbeing of another.

 

 

 

Where can I get help?
If you need urgent help contact Queensland Police on 000.

 

Information about Women’s Refuge can be obtained on 1800 811 811

 

If the matter is not urgent you may consider seeking help from a counsellor who could help you make a safety plan and possibly provide you with ongoing support.

Contact an agency such as Lifeline (13 11 14), Relationships Australia (1300 364 277) or Centacare (  ) for further information.

 

 

 

What is a Domestic Violence Protection Order?
This is an order of the Court that helps protect you, your children, and others close to you who might be affected, from the person you fear might hurt you or someone close to you.

 

 

 

How do I apply for a Domestic Violence Protection Order?
If the police have become involved they may seek an Order on your behalf.  Otherwise you may apply for one yourself, or someone close to you may apply on your behalf.

 

Before seeking an Order on your own behalf you should seek legal advice.

 

 

 

What happens if the Order is breached?
You must contact the police as only they can deal with breaches of Domestic Violence Protection Orders.

 

A written record of events and dates would greatly assist the police deal appropriately with the complaint.

 

 

 

Can I change the Order?
Yes, by completing a DV4 Application to vary a domestic violence protection order.

 

If you and the Respondent separated prior to the Order but decide to live together again then you should seek advice to have the Order varied as the Respondent could be in breach of that order.

 

The following link will provide you with more detailed information:

http://www.legalaid.qld.gov.au/publications/Factsheets-and-guides/Legal-information-guides/How-to-apply-for-a-domestic-violence-protection-order/Pages/what-is-domestic-and-family-violence.aspx

 

 

What can I do if I have been served with a Domestic Violence Protection Order?
The first thing you should do is to seek legal advice. If you cannot get an appointment with TASC, Legal Aid Qld or a private lawyer before the first court date then it is essential to attend court on the day and ask the duty lawyer to request an adjournment for you.  You could also make this request yourself if there is no duty lawyer present.

 

 

 

 

What are my options?
  1. You may ‘Consent without admission’.  This means that you agree to the order being made but do not admit to the facts contained in the Application.
  2. You may request an adjournment to allow you time to seek legal advice.
  3. You may challenge the Application.  The matter will then be set down for hearing.

Should you opt for either 2 or 3 above, it is likely that a Temporary Protection Order will be made against you.

 

If you do not attend court the Magistrate may adjourn the matter, however, an Order could be made against you in your absence.  Non-appearance on a second date would result in an order being made against you.

 

 

 

 

Will I have a Criminal Record?
Only if you breach the Order.
Will the Order affect Family Law proceedings?
The Family and Federal Circuit Courts do not view domestic violence kindly and it could affect the outcome, however, each case is viewed on its individual circumstances.
 
 
 
 

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