Sole custody in NSW is a type of custody arrangement wherein one parent enjoys exclusive rights to have custody of the child. 

Sole parental responsibility means that one parent has complete responsibility for the major long-term decisions of their children until the age of 18 years. Under Section 4 of the Family Law Act 1975, major long-term decisions include the child’s:

• Education (current and future);
• Religious and cultural upbringing;
• Health;
• Name; and
• Living arrangements.

It is important to note that it is not the same as child custody and does not mean the other parent cannot spend time with their children. Sole custody means a parent wants to have sole parental responsibility and sole care of the child.

 In short, divorce is the dissolution of a marriage. Australia has adopted the no-fault system. The only requirement for a divorce is an irretrievable breakdown of the marriage. This is reinforced by the condition that the husband and wife having been separated for a minimum of 12 months, with no likelihood of getting back together.  

Some people think that you need to sign a document or register the separation. That is not the case. You are separated if all of the following apply to you and your spouse: 

• One or both of you have decided that the marriage is over; 
• The decision that the marriage is over has been communicated; 
• One or both of you must then act on that decision either by living apart or, if you remain in the same home, by acting in such a way that it is clear that the relationship is over.

 What are consent orders?
The Family Court encourages families in dispute to reach agreement about the care arrangements for
their children, the division of property or spouse maintenance.
If you want your agreement to become an order of the Court, you can apply for ‘Consent Orders’ to be
made without having to actually go to Court. You can do this with the help of your
lawyer.
Consent Orders have the same legal effect as an order made after a Court hearing.

Financial agreements can be made under the Family Law Act 1975 (Cth) to deal with all aspects of the division of the parties’ property, including superannuation interests.

Financial agreements for de facto couples in all states which have referred their powers to the Commonwealth are governed by the Family Law Act 1975. De facto couples residing in Western Australia are governed by the Family Court Act 1997 (WA).

Financial agreements cannot be approved by courts or registered in courts.

For financial agreements to be binding, they must comply with the formal requirements of the Act.

Grandparents are entitled to apply for parenting orders under s 65C of the Family Law Act 1975, which provides:

A parenting order in relation to a child may be applied for by:
(a) either or both of the child's parents; or
(b) the child; or
(ba) a grandparent of the child; or
(c) any other person concerned with the care, welfare or development of the child.

There are generally two circumstances where grandparents seek advice on parenting orders:

1. One of the parents cannot or does not participate in the child’s life, for example, they are deceased, drug or alcohol addicted or mentally ill, and the grandparents are seeking orders either for the child to live with them, or to spend regular time with them; or
2. Both parents participate in the child’s life, but one of them prevents the grandparents from doing so, and the grandparents are seeking time with the child.

As with any parenting order, the court will always consider an application by the grandparents through the prism of what is in the child's best interests: s 60CC.

When separating parties are unable to come to an agreement on how to divide their property, they can apply to the court for a property settlement determination. The court will make an order on their behalf. In doing so, the court follows a five-step process to decide how to split the couple’s property fairly.

The Family Law Act 1975 (Cth) governs the division of assets, liabilities and superannuation following separation, whether it is in respect of a marriage or a de facto relationship. The court has wide discretion under the Act in determining the entitlements of each party based on the specific circumstances and facts of each case. Considerations of what is ‘just and equitable’ bookend the process.

The first step involves determining whether or not it is just and equitable to adjust the parties’ interests in property. It may not be considered right to alter their interests when the relationship has been short, and the parties have primarily maintained separate finances. If the court finds that it is right to adjust the respective interests, it proceeds with the next steps.

The property pool requiring division consists of the assets and liabilities of the parties, whether held in sole or joint names. Examples include ‘real’ property such as houses, land or investment properties. Other assets can include vehicles, shares, cash at bank and superannuation and liabilities can comprise of loans, mortgages, credit card debts and any outstanding tax due.

It is typically considered best to determine a settlement as quickly as possible, before either party purchases or disposes of any property. If a party wishes to prevent disposal of assets, an application can be made to the court for an injunction if it can be shown that disposals are imminent or possible.

A superannuation entitlement may not usually be thought of as ‘property’, but it is nonetheless taken into account in respect of the ‘pool’ and can generally be split between the parties.

There are several aspects of contributions. Initial financial contributions refer to the contribution each party brought into the relationship.

Contributions made during the relationship include, for example, earnings, payments towards a mortgage and living expenses.

Post-separation contributions include expenses paid such as credit card repayments, mortgage payments, and costs paid for children such as school fees.

Non-financial contributions include evaluation of work done in the home and as a parent, raising the children.

The timing of the contributions is, therefore, essential. Depending on the circumstances of these contributions, the length of the relationship and other factors, they can be treated differently to those made during the relationship.

Consideration must be given to the future needs of the parties. Any commitments that are necessary for each party to support themselves, or any other person, need to be taken into account.

This is assessed with reference to, for example, the age, the state of physical and mental health of each party, as well as any disparity between the earning capacities of the parties and the differing responsibilities for the care of any children.

The final step is to consider the practical effect of the proposed division of assets and whether it is just and equitable for a property settlement to occur. In ascertaining whether the proposed orders are just and equitable, the court will also have regard to the “clean break” principle. Where possible, orders should bring to a conclusion the financial relationship between the parties and create certainty for the future.

Although in most cases the court will find that a settlement is just and equitable, in some circumstances, the court may determine that it is not right to do so. If this happens, each party leaves the relationship with the assets and liabilities in their sole name or possession.