Adoption is the legal process by which a child joins and becomes a recognised member of a family. Adoptive parents assume all the rights and responsibilities of biological parents and birth parents no longer have any parental rights over the child.

Adoption arrangements in Victoria must be made through the Department of Human Services, or an approved adoption agency. There are restrictions on who can adopt a child. In particular, adoptive parents must be married, or have been living in a domestic (formerly known as de facto) relationship for at least two years.

Commonly, adoption arises in the context of a step-parent wishing to adopt their partner's child from a former relationship. In these circumstances, parents can seek either a formal adoption, or a parenting Order from the Family Court, which gives the non-biological parent the same rights and responsibilities as a biological parent. What process will be most appropriate depends on the circumstances of each particular family.

Adoption can be a complex and emotional process. Our team has experience in advising potential adoptive parents as to the correct process to be followed and the suitability of either the adoption process or obtaining Family Court Orders.

Our team works with separated parents to help them come to an agreement on arrangements for how their children will be cared for following the separation. Our services in this area include:

• determining who the child will live with and who the child will spend time with
• issues of parental responsibility for day to day and long term decisions involving the care, welfare and development of children
• orders in respect of same-sex relationships, including orders made under the Assisted Reproductive Treatment Act 2008.

Mediation
It is compulsory for all parents who have separated to attend mediation in an attempt to come to an agreement on arrangements for how their children will be cared for.

We can provide parents with legal advice before they attend their mediation session, so that they are aware of their rights and responsibilities under the Family Law Act.  If parents are able to reach agreement at mediation, we can then formalise that agreement by lodging an Application with the Family Court, which then makes the agreement binding and legally enforceable.   

If an agreement cannot be reached during mediation, we can help with:

• negotiating an agreed outcome with your former partner
• making an application to the Family Court for Parenting Orders
• responding to an application for parenting orders made by your former partner
• varying any Family Court Orders which are currently in place.

We can also assist people who may not be the parents of a child, but who have a significant involvement in that child's life, such as grandparents.   

 

Relocation and unlawful removal of children
We can advise on relocation, where one parent wishes to move with the child or children to a location that is some distance away from the other parent, such as interstate or overseas.  We also provide advice concerning the recovery of a child or children who have been unlawfully removed from a parent, or not returned to a parent.  

Same-sex parents
We assist same sex couples and families in applying for parenting orders, for example to ensure they are legally recognised as parents of their children. We also provide donor and surrogacy advice to same-sex prospective parents, as well as drawing up the related agreements. 

 

The 'Collaborative Law' approach, following a separation, is quite different from the more traditional methods of dispute resolution (such as litigation or mediation). It empowers you and your former partner to have greater control and input into your settlement process, via confidential meetings between you and your lawyers. You and your former partner can maintain control of your negotiations, any associated costs and ultimately, your outcomes.

The three basic principles of Collaborative Law are:

• a pledge not to go to Court
• an honest exchange of information
• a solution through negotiation in good faith, that takes into account the parties' priorities and where applicable, those of their children.

Our team can assist you at all stages from separation to settlement. We are able to guide you through the process and draft all documentation to reflect your negotiated settlement.

In the right circumstances, Collaborative Law can offer a number of benefits, including:

• it is generally cheaper, faster and more transparent than litigation
• it is more timely, in that you and your former partner determine the place and content of negotiations
• the process allows you and your former partner to have control over any restructuring or allocation of your assets
• it is less adversarial, which can have flow-on benefits for the ongoing relationship between former partners - this is particularly important where children are involved.

The incidence of people involved in de facto relationships (or as they are legally termed, "domestic relationships") is increasing in Australia. A domestic relationship includes both same sex and heterosexual couples.

Our team advises and represents domestic partners through all aspects of their property settlement and/or parenting disputes. Disputes arising after March 2009 are now covered by the Family Law Act, rather than under individual state legislation. We can advise you on the applicable jurisdiction and law, as well as representing you in the Family Court, if necessary.

In addition to property settlements, domestic couples can now also apply for maintenance, following their separation. This includes – in certain circumstances – the ability to get an urgent maintenance order.

We can also assist with drafting financial agreements both prior to entering into a domestic relationship, and following separation.

Financial agreements

Domestic couples can also now enter into financial agreements. Financial agreements are like "pre nuptial" agreements for married couples. As is the case with married couples, these are agreements that determine in advance the terms of any property settlement, should the relationship break down. The agreements are legally binding and, except in limited circumstances, will govern how property and financial assets are settled between a separating couple.

Property division for domestic couples

Previously, each State and Territory adopted a different approach to the division of property for domestic couples. This recently changed when the Family Law Act was amended to extend its coverage to most Australian domestic couples.

Now, provided a domestic couple separated on or after March 2009, the division of their property is treated in exactly the same way as for married couples. However, there are some basic criteria that must also be established, including that:

• the couple must have been living together in a domestic relationship for at least two years; or
• the couple has a child together; or
• one party has made substantial contributions to the relationship. Contributions can be financial or non-financial, such as contributions to the welfare of the family (for example, as a homemaker or a parent); or
• the relationship is or was registered under a relevant State law (for example, if the relationship was registered with the Department of Births Deaths and Marriages in the Victorian Relationships Register); or
• the couple were ordinarily living in one of the Australian states that are now covered by the Family Law Act (as opposed to the individual state legislation).

Couples who separated before March 2009

Property settlement disputes for couples who separated prior to March 2009 will be determined by the relevant State legislation. There can be significant differences in terms of approach and entitlement in each state.

Parenting disputes

Parenting disputes in relation to the children of same sex and heterosexual domestic couples will continue to be dealt with by the Family Court. This is regardless of whether the couple separated before or after March 2009.

A divorce is the legal dissolution of your marriage. You can apply for a divorce in Australia if either you or your spouse:

• regard Australia as your home and intend to live in Australia indefinitely; or
• are an Australian citizen by birth, descent or by grant of Australia citizenship; or
• ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.

You will need to satisfy the court that you and your spouse have lived separately for at least 12 months, and that there is no reasonable likelihood of resuming married life.
 
It is possible to live together in the same home and still be separated. However, if this is the case, you will also need include an affidavit confirming that you are actually separated when you file your application for divorce.

Our team of family and relationship lawyers can help you throughout the divorce process, including:

• providing practical advice on how to complete your application
• representing you at your divorce hearing (should a hearing be necessary).

The granting of a divorce does not decide issues about property and maintenance, or parenting arrangements for your children. We can also advise you in relation to these areas before you file your divorce application.

Time limits

It is important to be aware that, under the Family Law Act, any application for financial orders (ie court orders relating to property or maintenance claims) must:

• be filed within 12 months after the divorce has become absolute (this is one month after the divorce has been granted) if you were married; or
• be filed within two years following the end of your relationship, if you were in a domestic relationship.

In each case, you may be able to apply for financial orders outside of these time limits, provided certain conditions are met. Our team can advise you on what options are available to you.

 

An intervention order is made by a Magistrate and is intended to stop someone behaving in a way that makes another person feel unsafe. A person can obtain an intervention order to protect them from family violence and from stalking.

Family violence is harmful behaviour which can include physical abuse, sexual abuse, emotional or psychological abuse, or financial abuse. A family violence intervention order protects a person from a family member who is using violence. It can be used to protect children, property or people supporting the protected person.

Our lawyers can help guide you through the process of obtaining a family violence intervention order. We can advise you on how best to gather information before seeking an interim intervention order. We can also assist people who have been served with an intervention order and wish to oppose it.

If an intervention order has been made against you

If you have been served with an intervention order, it is important that you obtain legal advice as soon as possible prior to the court date. If you do not go to court for your hearing, the court can make orders against you in your absence and, in certain circumstances, may even issue a warrant for your arrest.
In representing you, we can attempt to stop the intervention order being made. Other options include:

1. agreeing with the intervention order (perhaps without making an admission of guilt);
2. agreeing to provide an undertaking to stop certain behaviour. In this instance, the intervention order application is then withdrawn; or
3. opposing the intervention order. A "contested" hearing will then be booked for a later date.

Our lawyers can help you identify your needs throughout the process of your intervention order. We can provide you with general legal advice about defending your intervention order, as well as helping you defend the granting of the order, if your matter is referred for a contested hearing.

Our team specialises in the preparation of financial agreements which couples can use to regulate and / or resolve how their finances will be managed during, or following the breakdown of, their relationship.

Financial agreements need to be carefully considered and worded to ensure that they take into account any structural implications (eg family trusts, companies, self-managed super funds) of the proposed settlement, as well as tax implications and any other consequential matters, such as refinancing obligations.

Pre-Nuptial Agreements

Financial agreements provide an opportunity for couples to consider how they would like their property or financial resources to be split in the event that their relationship breaks down (also known as a "pre-nuptial" agreement). They are available to both married couples and couples in domestic relationships (formerly known as de facto relationships), and are now specifically recognised under the Family Law Act as being legally binding.

Couples can make a financial agreement at any time prior to starting a relationship or marriage, or at any time during the course of their relationship (or marriage).

Financial agreements following separation

Financial agreements may also be used to formalise the division of a couple's financial and property assets, following their separation. Financial agreements in this instance provide a legally binding record of any settlement agreed by both parties.

The Family Court is frequently called upon to make injunctions and restraining orders in both property and parenting cases.

There are clear guidelines as to when a court will impose an injunction or restraint on one party. For example, with regard to property matters, generally the court must be satisfied that there is a real risk and evidence that one of the parties intends to squander or waste assets, in order to frustrate the property settlement of the other party.

Types of injunctions - parenting

In parenting matters, the types of injunctions that are commonly sought include:

• restraints on one party moving the residence of the child;
• restraints on one party from travelling interstate or overseas with a child;
• restraints on altering a child's school, name or other important detail;
• restraints on parents contacting, approaching or communicating with each other.

Types of injunctions - property

In property matters, common types of injunctions that are sought include:

• restraints on one party selling, transferring or dealing with a particular item of property such as bank accounts or chattels;
• restraints on one party dealing with business assets, other than in the ordinary course of business;
• restraints on one party from occupying a particular property.

We have extensive experience in acting for people who are either seeking or opposing an injunction.

We also represent third parties who have become involved in Family Court litigation and against whom an injunction is sought. This is becoming increasingly common as the financial relationships between parties, especially when they own businesses, become more complicated.

As re-location overseas is becoming a more common scenario for Australian families, family and relationships law often extends beyond Australian borders. Our team frequently advises ex-pat clients who need assistance with Australian family law. We also act in many re-location matters which involve international aspects.

In particular, we have experience with the following:

• Financial agreements for married, heterosexual and same-sex domestic couples. This includes drawing up financial agreements to record any agreement reached by a couple about how their property and financial assets will be settled if they should separate. 
• Property settlement and the re-structure of family assets: advising on property settlement and the re-structure of family assets following separation, including assets located both in Australia and overseas.
• Arrangements for children: advising on appropriate arrangements for children following separation, including where one party wishes to re-locate with the children, or return to Australia with the children.
• Child support: advising on appropriate child support arrangements and documenting these by way of binding child support agreements.
• Registration of overseas orders: including child support and maintenance orders and judgments.
• Obtaining a divorce in Australia: where one or more of the parties to the marriage is an Australian citizen.

When couples who have been married, or who were in a domestic (formerly known as "de facto") relationship, separate, there is sometimes a need for one of the parties to continue to financially support the other. This is known as maintenance.

In order to obtain a court order for maintenance, you must show that you are unable to adequately support yourself (for example, this could be because of your age, a medical condition or if you are caring for young children). The other party must also have the capacity to contribute to your financial support, after taking into account their own reasonable costs of living.

Generally, maintenance will be paid before a final property settlement is in place. This is so that the person making a claim for maintenance can support themselves and any children while they wait to receive their final property settlement. However, in certain circumstances (for example when the asset pool is small and one party has a substantial income) maintenance orders can operate for a period of years following the final property settlement.

Maintenance can be an extremely technical area of law and detailed legal advice should be sought, whether you wish to seek or resist an order for maintenance. Our team has many years experience in advising clients who are seeking maintenance orders, and we can advise you as to the most appropriate type of maintenance order for your particular circumstances.

For clients who wish to resist an order for maintenance, we can provide advice as to the reasonable amount of support to be paid and the duration of these payments.

 

Mediation has now been widely embraced by senior family law practitioners who understand the benefits of former spouses being able to resolve their financial and children-related disputes in a controlled environment, with the assistance of an independent third-person mediator. 

A properly structured and planned mediation enables all areas of a dispute to be analysed and resolved without the need for lengthy and expensive litigation.

Our qualified mediators have many years experience in helping separated couples to resolve their parenting and financial issues.

Who are mediations suitable for?

In our experience, mediations can benefit all people, irrespective of whether they are looking to settle relatively straightforward financial arrangements or complex financial arrangements.

In the case of couples who have complex financial arrangements, it is important that your lawyer takes into consideration any issues related to corporate structuring (eg family trusts, companies and self-managed superannuation funds), as well as any tax implications. Mediation in this instance allows for a considered discussion about these issues to take place in a more relaxed and informal environment than going through a formal court process.

Our team helps clients work through the often challenging area of marital financial settlements. We can assist in a wide range of different approaches, depending upon the particular issues involved, including:

• direct conferencing
• mediation
• collaborative law
• litigation (if there is no other viable alternative).

Our advice on the right approach to use will depend on each individual client's needs and circumstances, and will be designed to achieve a commercially sensible result for our client.

In addition, our team has developed an excellent network of other professionals who may be of assistance to our clients in other specific areas. These include family counsellors, specialist lawyers in areas outside of family and relationship law, tax advisors, accountants, financial planners and specialist valuers.

Commonwealth laws and State laws changed in 2008 to ensure that the rights of same-sex couples are recognised in the same way as heterosexual couples.

At Lander & Rogers we acknowledge and recognise same-sex relationships and families, and the particular legal issues and difficulties that can arise in relation to parental responsibility and financial matters for same-sex couples. We offer practical legal advice and suggestions to deal with those issues.

Parenting and Children's matters

Access to adoption and reproductive technology has lead to new avenues through which same-sex couples can become parents. However, particularly in areas such as adoption and surrogacy, there are still gaps and uncertainties affecting the children of same sex-couples. 

Our team routinely provides advice and representation to same-sex parents and prospective parents on issues including:

• artificial conception procedures including IVF, infertility treatment, donor insemination or self insemination;
• registration of same sex couples on the birth certificate of a child conceived using artificial conception procedures;
• legal recognition of non biological mothers in a same sex relationship;
• legal status of donors
• donor agreements;
• parental rights in relation to children born via surrogacy and surrogacy arrangements;
• equal parenting rights;
• obtaining or amending parenting orders;
• negotiating parenting and care arrangements, either during and/or at the end of a relationship.

Financial Matters

Same-sex couples can create financial agreements which are legally binding and set out how their property and finances would be divided if they separate. These agreements can be created before entering a domestic (formerly known as de facto) relationship, or at any time during or following the break down of a domestic relationship.

Our team provides advice and assistance with all aspects of asset division, following a separation, including:

• financial agreements
• property settlement orders
• child support and child support agreements.

For sometime now, it has been possible for separating couples (both married and de facto couples) to "split" their superannuation entitlements as part of a property settlement package.

For example, if one of you has superannuation of $100,000 and the other has superannuation of $50,000, it is possible to equalise your superannuation entitlements so that you both end up with $75,000 in your respective superannuation funds (or this could be any other dollar amount as agreed by you and your former partner).

Superannuation splits can be made for various types of funds, including accumulation funds, defined benefit funds and self managed superannuation funds.

The rules in relation to superannuation splitting are highly technical, and great care is needed in applying the law and drafting the necessary documentation. This is especially so in matters where superannuation forms a substantial portion of the overall asset pool.

Our team of experienced family and relationship lawyers can:

• advise you as to the advantages and disadvantages of splitting your superannuation, or receiving a superannuation split, as part of an overall property settlement;
• liaise with Trustees of various funds on the necessary steps to formalise a superannuation split; and
• draft court orders and agreements relating to a superannuation split.

With the increasing use of more complex financial structures, such as family trusts, companies and self-managed superannuation funds, separating couples' financial assets are also becoming more complex to negotiate and settle. In any restructuring of a couple's financial affairs when negotiating a property settlement, proper consideration must be given to any tax implications.

Our team has many years of experience in this area, and our lawyers specialise in complex financial and property settlements. We understand the tax implications which may need to be addressed and incorporated into any settlement negotiations.