Family Law Library

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Mathews Family Law have created many detailed articles answering the most common questions people have in relation to their rights and Australian Family Law.


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Dividing the property in Australia

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Who gets the children?

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I want to end my relationship but my ex-partner won’t move out of the house that we own. What can I do?

If you fear violence, you should seek advice immediately.

You cannot be forced to leave just because the property is not in your name. If you do have to move out, it will not affect your property entitlement. Your rights continue even if you leave.

Sometimes one party may seek a sole occupancy order which requires the other party to leave. This allows the remaining spouse to live in the house until the property is divided. This order will usually only be made in exceptional situations where there is domestic violence, threats are being made or if the house has been adjusted because somebody has a disability.

I have received a contravention application – what can I do?

It may be possible to negotiate a settlement with the applicant by writing a letter or attending family dispute resolution.

Where there is family violence or risk of harm to the child negotiation is not advisable.

Can family violence affect court proceedings?

The Court will only hear child related proceedings if an applicant has attended family dispute resolution and obtained a certificate. A certificate is not required where child abuse or family violence is involved.

Can family violence affect parenting orders?

As a starting point it is presumed that it is in the best interests of a child for parents to have equal shared parental responsibility for the child. This presumption is dropped if a parent has engaged in family violence.

Can family violence affect the division of property?

If there has been violence in the relationship, this can affect the division of property. This is due to the possibility that the effects of violence may have limited the ability of a party to contribute.

Alternatively, violence or other conduct may have resulted in long term effects to the party’s health and therefore could be a factor to consider under the ‘additional factors’.

Do I have to attend family dispute resolution?

Couples who have a dispute about parenting arrangements are required to attend Family Dispute Resolution and make a genuine effort to resolve their dispute before they can make an application to a Court for orders in relation to their children.

This requirement does not apply in certain circumstances, such as where there is urgency or in cases involving child abuse or family violence.

How can an AVO order be revoked?

An application may be made to the Court to either change the conditions of or remove the Apprehended Violence Order. This application may be made by the protected person, the defendant, a police officer or a person acting on behalf of the protected person.

Penalties for breaching an AVO

It is a criminal offence to knowingly breach an interim or final Apprehended Violence Order. The maximum penalty on conviction is a $5,500 fine or two years imprisonment or both. Where the breach itself is an act of violence and the defendant is at least 18 years of age, the defendant will likely be sentenced to a gaol term.