NSW Divorce

[Singlemum36]

Hi a bit of background before my question well two questions really.
I want to get a divorce I've been separated for 2yrs, married 12yrs, 2 kids, no assets just his super but he got early release access only weeks after we separated and spent it. I have very little super as was mostly a stay at home mum for the 12yrs. No house, he kept 95% of the furniture and the car. I left our rental the children came with me and as I had no money I had to live with my parents. AVO for 2 yrs was taken for DV then there were a lot of breaches till he went to jail for only a very short time. He has finally left me alone. He has made no contact through a lawyer to have contact with the children which I would be concerned for their safety and I’m petrified to start family court because what if he is given access and all the DV starts again. He has seen the children once this year by visiting their school. Which I can’t stop because no family court orders.
Child support is exempted for my safety. But money would be very helpful but I’d rather live without being scared and petrified than get support. Which I doubt I’d get anyway as when I first applied just after we separated he lost it at me about the amount he had to pay on the assessment. I was so scared I agreed to a significantly less amount but then he quit his high paying job then the DV escalated and child support stop for my safety.
My question is
I REALLY WANT A DIVORCE but Do I have to see him or discuss the children’s arrangements to get a divorce.? As that petrifies me. We are finally happy, living a calm, not chaotic and not scared everyday. I can’t go back to him having control over our lives and that’s exactly what he will do through the children.
I just want him legally out of my life!! But family court proceedings are long and terrifying? Please tell I can legally divorce him without children arrangement orders ?

Also am I in titled to any of his super? and if yes what happens if he spent it reducing the total amount just after we separated (like only few weeks) so not leaving much in the Super account?
Thanks

 

[sammy01]

You can apply for a divorce. That is pretty easy.
This site can help

How do I apply for divorce? | Federal Circuit and Family Court of Australia

The Federal Circuit and Family Court of Australia has the jurisdiction or power to deal with dissolution of marriage (i.e. divorce) under Part VI of the Family Law Act 1975.

www.federalcircuitcourt.gov.au

Getting access to his super? You would need to get an agreement. That would require some communication.

A bad husband doesn't means he is a bad dad. Kids have a right to have a meaningful relationship with both parents.

 

[Atticus]

Do I have to see him or discuss the children’s arrangements to get a divorce.?

No .... The info you need is within the link that Sammy has provided above .... Basically, if you choose to make a sole application, as long as you can provide a place for service of papers (home, work address for eg) then you can have somebody else serve the papers ..... As there are children, you will be required to attend court, he doesn't have to show but if you are concerned you can arrange a phone/video appearance ...

As long as the court is satisfied that the kids are safe & being cared for, in suitable housing etc, & you provide a reason why the other parent is not in contact if it's asked that is all they will want to know..

Also am I in titled to any of his super? and if yes what happens if he spent it reducing the total amount just after we separated (like only few weeks) so not leaving much in the Super account?

So first step is to find out what is left if any.... To do that you will have to send off a superannuation information request (including a form 6 declaration) to the fund... Probbaly best to do this before a divorce, Info & forms here >>> Superannuation Information Kit - Federal Circuit Court of Australia

There may be a fee charged by the fund trustee so find out what that is before sending off the paperwork ...... There are rules that prohibit the trustee from notifying a member that this request has been made, so it's a good way of first of all finding out if it's worth your pursuing without the other party knowing ...

From there you will be better placed to decide if it's worth pursuing ... ultimately there is no way that you can without involving your ex I'm afraid ..... If the fund has been depleted, but he still has assets then you can still pursue a settlement, but again will involve courts, unless of course he agrees, fairly unlikely in this case on what you have written

 

[Poidah]

but he still has assets then you can still pursue a settlement

I thought a settlement is mandatory 12 months after the divorce is granted, but it sounds like you can walk away and accept no settlement due to safety concerns etc. Might be worthwhile indicating and stressing your personal safety issues when the divorce is granted.

Out Of Time Property Settlement - Cudmore Legal

You have a strict time limit of 12 months from that date of your divorce order to make an application to the Court for a property settlement. In de facto, you have two years to apply to the Court for a property settlement.

www.cudmorelegal.com.au

 

[Atticus]

I thought a settlement is mandatory 12 months after the divorce is granted

No .... In fact it's not mandatory at all... There is a time limit of 12 months from granting of decree absolute, but even that can be waived if an out of time application is accepted .... I do recommend in @Singlemum36 case that she does go forward with sending off the super information request prior to divorce .... Only so that there can be no disputing her being an eligible person to seek that info

 

[Poidah]

super information request prior to divorce

Hopefully you might have the super information already @Singlemum36, or allow the court processes to investigate. Requesting super details might set off another round of violence. But applying for a flag on his super would be a good option but that might also provoke danger. The super funds are aware of court ordered flagging of super benefits.

https://www.oursuperfund.com.au/content/dam/groupsuper/Docs/Factsheet-family-law.pdf

Divorce and superannuation | Separation | ART

Find out what happens to superannuation when you separate or divorce. Learn how to split super with an ex-spouse or ex-partner.

www.sunsuper.com.au

 

[Atticus]

Hopefully you might have the super information already @Singlemum36, or allow the court processes to investigate

She needs to send the fund trustee the information request (in the prescribed manner, ie, the form 6 declaration & form as in the link I provided).... The court can't 'investigate'..... The info can only be applied for by an eligible person. ATM, @Singlemum36 is ...... That information sheet from the trustee is actually REQUIRED by the court as part of any financial statement where a splitting or flagging agreement is sought ... Court can't (won't) do jack without it..

Requesting super details might set off another round of violence

Incorrect .... the fund trustee must NOT inform the member (her ex) that an information request has been made (section 90XZB(6) of the act) .... If having considered the super remaining is sufficient enough to warrant her pursuing her legal right to a splitting agreement, then there are provisions available to protect a person doing so from FV, in addition to state police of course... In any case, merely seeking the info will not alert her ex to the fact

But applying for a flag on his super would be a good option but that might also provoke danger.

Again .... A splitting/flagging agreement can only be served on a fund trustee by court order.... It can't be 'applied' for except in the context of a financial settlement via court

End of the day, @Singlemum36 best option is to first send the prescribed information request to the super fund trustee, find out how much the fund is worth, & seek further advice from there

 

[Poidah]

the fund trustee must NOT inform the member (her ex) that an information request has been made

That is fantastic.
Sorry Attitus, I missed your link and did not realise that Form 6 was that helpful. I thought it was just an information sheet. That is a great way to obtain the required information from Super. Is there an easy way to figure out which super though? Or is there a way to contacting all the various super companies?

Superannuation Information Form 6 for Family Law Valuation

Free Family Law Superannuation valuation and Form 6 for obtaining Superannuation Information Form in Australian divorce and property settlements.

www.lawtech.com.au