To,
Jack Sparrow
27 Cutlass Place, Ballina
New South Wales
Re: Advise on Application for divorce and obtaining restraining order
Sir,
You have instructed us that you want to dissolve your marriage under the Family Law Act and you seek my advice as to whether you could remarry and ensure safety of your children and yourself by obtaining some sort of restraining order against your wife. My advice is as follows:
1. A divorce application may be filed after you have separated from your wife Buffy for a period of 12 months. In order to file a divorce application you are required to complete an Application for Divorce and the present it before the Federal Circuit Court Australia. At the time of filing the divorce application, the Federal Circuit court shall charge a fee of $865.00 as filing fee or an application fee. The filing fee may be reduced on certain grounds of financial hardship. If you and your spouse apply the divorce application, it shall be referred to as joint application but if it is the applied by you, you shall be referred to as the applicant.
2. You can apply for divorce in Australia as your spouse Buffy is a citizen of Australia and you have been granted an Australian citizen. In order to apply for divorce in Australia it is important to establish the following grounds:
3. There is no particular time limit for applying for a divorce application in Australia. Under the Family Law Act 1975, there is an established principle known as the ‘no-fault’ divorce which implies that the courts in Australia does not require the parties filing divorce application to provide reasons why the parties/party dissolved the marriage. The only ground for divorce that is considered by the court is the irretrievable breaking down of the marriage. In other words, there is no probability that you and your spouse will get back together. In order to establish the claim that the marriage is broken down irretrievably, the parties/party is required to prove that the parties have resided separately from each other for 12 months. The period of 12 months commences from the day the party or both the parties intends to terminate the marriage and communicates the same to the other.
4. After filing the divorce application and the filing fees, a copy of the divorce application must be served to the spouse. You are required to serve a copy to your wife Buffy. However, in case there are children from the marriage and they are below 18 years, the court shall grant divorce only if the court is satisfied that adequate arrangements are made for the children as was stipulated under section 55A of the Family Law Act 1975 (cth).
5. There is no mandatory provision for the party applying for the divorce application to tell his/her spouse but the applicant must ensure that the applicant ends the marriage by your actions or at least in a manner that clearly indicates the spouse that the applicant is ending the marriage. Such implied actions may include residing in a separate room by the applicant or starting another relationship and ceasing regular communication with the spouse.
6. There is a provision that the party applying for divorce may be separated from his/her spouse but they can continue to live in the same home during the period of 12 months before the party/ parties apply for the divorce application. This is known as ‘separation under the one roof’ and under such circumstances it is essential that the party/parties applying for divorce must establish that they have been living separately while he/she were living with his/her spouse under the same roof.
7. Separation is different from divorce as the former takes place when either party intends to dissolve the marriage and communicates about the intention to the other party. Under such circumstances, separation takes place while the party applying for divorce application is living with his or her spouse under the same roof.
8. As you have informed that, you and your spouse have tried to get back together for the sake of your children and wanted to give your marriage a second chance, there is a similar provision applicable to such situation stipulated under section 50 of the Family law act 1972 (Cth). After you separate from your spouse and wish to give another chance to your relationship, you may get back together but for a period of three months. However, under such circumstances, there is no need for you to commence the entire twelve months period of separation all over again.
9. After divorce application is filed, you are required to attend the court as you have children who are below 18 years of age and that you are not applying for a joint application. You must attend the court hearing on the stipulated day and time that is prescribed in your divorce application. However, you may request the court to hear the divorce application in your absence; nevertheless, the court may require you to attend the hearing.
10. Since you are seeking a divorce and wish to remarry Vampirella, you must not presume that the court will grant divorce at the first hearing. For instance, the court may ask the applicant to provide more and additional information for proceeding with the divorce application; it would take more time for obtaining a divorce. In the event, the applicant wishes to remarry, it is imperative for the applicant to provide the marriage celebrant a Notice of Intended Marriageprior to one month of the wedding date, the applicant is also required to comply with the requirements stipulated under the Marriage Act 1961.
11. When the court grants the divorce order, the marriage celebrant may accept the Notice of Intended Marriage and the applicant for the Divorce application is required to show the Certificate of Divorce to the marriage celebrant prior to the weeding date. The applicant for the divorce application cannot remarry until the court grants the divorce or the divorce becomes final. As per your information, you wish to marry Vampirella, but you cannot marry her unless your divorce is final. Hence, it is advised that you do not make any form of arrangements with respect to the wedding with Vampirella until the court fixes the date on which the court shall grant your divorce or the divorce would become final.
12. There is a scope that the spouse may oppose the divorce application filed by the applicant. However, the spouse of the applicant may oppose the divorce application on two grounds. The spouse may apply for divorce if there has been separation between the applicant and the spouse for 12 months as stipulated in the divorce application. The other ground on which the divorce application may be opposed is when the court does not have any jurisdiction. In order to oppose a divorce application, it is important that the party opposing the application completes the Response to Divorce application and file it and the party is required to appear before the court in person.
13. If the court is satisfied that there is no chance of reconciliation and the applicant and the spouse have been living separately for 12 months, the court will grant the divorce in favor of the applicant. The party opposing the divorce application is required to attend the divorce hearings. In the absence of the opposing party in the divorce hearing, the court may decide the divorce application.
14. You are seeking for restraining orders to prevent your wife form causing harm to you and your children given the violent nature of your wife and behavior. You may apply for a restraining order if anyone commits personal violence or family violence towards you or threatens you or intends to intimidate you and you fear that this will continue and cause you harm. A restraining order would prevent such person from coming near you or your property and it would be unlawful if such person breaches the restraining order. There are three types of restraining orders namely: family violence restraining order, violence restraining order and misconduct restraining order. A police officer, a person seeking protection, parent of a child and a guardian of a person, can make an application for such restraining order.
15. Under the circumstances described by you, you may seek a family violence restraining order (FVRO) and a misconduct restraining order (MRO). A FVRO is a court order against your wife, which would prevent her from committing violence or threaten to commit violence, exhibit a behavior that controls, coerces or causes harm to you and your children. You can apply for this order as you are in family relationship with Buffy as she is your wife and you have been in a family relationship with her. The FVRO shall cover your three children as well provided you ask the court to include your children within the order. In order to include your children within the order, you must establish that the children have been exposed to family violence and there is a probability that there is a probability that they will be exposed to such violence in future; there is a reasonable fear that the children shall be exposed to family violence in future.
16. A MRO order is a restraining order that prevents any person who intimidates, threatens, or exhibits a behavior that is offensive to the applicant. It would prevent the person from causing damage to the property or from acting in a way that result in breach of peace. This restraining order is applicable to someone with whom the applicant does not have any family relationship. Under the circumstances described by you, you may apply for the Misconduct restraining order against Barnaby Joys, who is the best friend of your wife.
17. To sum up, I would advise you to apply for a divorce application on the ground that your marriage ha irretrievably broken down and given the nature and behavior of your wife Buffy, it is impossible for both of you to get back together. The court is not concerned about the fact who, was at fault and the cause of the dissolution of the marriage. Under the Family Law, the applicant may live with the spouse under ‘separation under same roof’ provision for up to 3 months and establish the facts that while they were residing together under the same roof, they were living separately.
18. You must establish the fact that while you and Buffy decided to get back together, you communicated to her about the dissolution of marriage but Buffy refused to leave. You must establish that you had let her stay under the same roof but she was living in the verandah of the house and not in the bedroom with you. After she left, she did not take care of the children and neither contributed to any household expenses. Further, the children were scared of her. In regards to the fact that you wish to remarry Vampeirella, it is imperative that you wait for the court to grants divorce and prior to the weeding, you are required to present to the celebrant with the divorce certificate.
19. However, before the court grants divorce, it would ensure that necessary arrangements have been made for your three children owing to the fact that they are below 18 years of age.
20. You may further obtain a family violence restraining order against your Buffy for preventing her from intimidating you conducting in a way that poses danger to you and the children. Further, she has her best friend Barnaby who threatens to kill your pet dogs and intimidate you to the extent that you fear you and the children might be exposed to violence and harm in the future. You may obtain MRO to prevent Barnaby from causing any such harm to you and your children.
Reference List
Family Law act 1972 (Cth)
Australia, F. (2017). Divorce – Family Court of Australia. Familycourt.gov.au. Retrieved 15 September 2017, from https://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/family-law-matters/separation-and-divorce/divorce/divorce
Australia, F. (2017). Home – Federal Circuit Court of Australia. Federalcircuitcourt.gov.au. Retrieved 15 September 2017, from https://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/home/
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