Frequently Asked Questions
General FAQ’s
Does my case have to go to court?
What are the options for settling out of court?
Do I need a lawyer?
How long will it take?
When should I get legal advice?
How can I resolve my matter quickly?
We can assist you in reaching an early agreement by providing you with accurate advice, ensuring your matter is well prepared and advising and guiding you as to the most appropriate and cost effective way to resolve your dispute. This will sometimes involve third parties such as mediators and arbitrators.
What happens at the first consultation?
What if my former partner refuses to negotiate or refuses to be reasonable?
If your matter cannot be resolved through negotiation, then the best option may be for you to make an application to court. By making an application to court, it will often cause your former partner to enter into reasonable negotiations which often leads to a resolution of the dispute.
What happens at mediation?
The mediator’s role is to facilitate negotiations between the parties with the aim of assisting parties to reach an agreement. Mediation is a voluntary process and you cannot be forced to reach an agreement against your will.
In most cases, mediation is compulsory before making an application to court for a parenting order. In property matters, in most cases the judge will refer the matter to mediation after the court proceedings have commenced if a mediation has not already occurred.
Of the matters that go to mediation about 85% to 90% are resolved by agreement either at the mediation or shortly afterwards. It is desirable to have a lawyer to represent you at a property mediation and also sometimes at a parenting mediation.
Property Matters FAQ’s
How do we advise about a property settlement claim?
Does the Family Law Act apply to de facto and same-sex couples?
However, to have an entitlement to some of the property of the other party, it is necessary to establish that they:
- have been living together for a period of at least 2 years; or
- have a child together; or
- have made substantial contributions to the acquisition, conservation or improvement of any of the property of the parties; or
- the failure to make an order would result in a serious injustice.
Is superannuation included in the pool?
What is spouse maintenance?
Will assets I acquire or income I earn after separation be included in the pool?
However, in determining what is the appropriate division of property the court will consider what assets have been contributed post separation and any change of values since the separation.
Parenting Matters FAQ’s
How does the court decide parenting matters?
If we can’t agree on parenting arrangements is it automatically 50/50 or equal time?
What if I want to relocate (move to another city or town) with my children?
What if my former partner is harming my children?
What is a parenting plan?
Fertility Law FAQ’s
Do I need a lawyer when I want to have a child through surrogacy?
Surrogacy is the most complex way of becoming a parent. International surrogacy is the most complex form of surrogacy. With an international surrogacy journey, it is wise to have legal representation at both ends. If you or your child is entitled to multiple citizenships, then further international representation might be desirable. We can refer you to surrogacy lawyers in most places around the world, to help you on your journey to become parents.
Do we need a lawyer when we have a known sperm donor?
It is wise to plan these arrangements very carefully. Having expert legal advice at the beginning sets out both the risk of something going wrong and ways of minimising that risk.
When buying a house, it is not compulsory to check whether the house might have a termite infestation. However, a wise purchaser will have an expert check over the home and get a clearance first before proceeding with the sale. Obtaining advice about a proposed sperm donor arrangement is not expensive and pales into insignificance with potential legal costs in the Family Law Courts if something goes wrong.
Can I use my late husband’s sperm to become pregnant or via surrogacy?
Do you know anything about the law where I live?
Many years ago, Queensland was the only State that criminalised all forms of surrogacy. In those days, our partner Stephen Page was asked by clients:
“If we can’t do surrogacy here, where can we do it?”
This meant that he had to become expert about surrogacy laws Australia wide.
From the beginning, we have become expert at fertility laws Australia wide. We have also advised clients from 30 countries overseas from as far afield as the US, Malaysia, Hong Kong, Solomon Islands and Brazil.
We have also acted for IVF clinics and sperm and egg banks.
Is surrogacy legal in Australia?
The Northern Territory has no laws about surrogacy. In practice for a number of reasons, this means that NT residents typically go overseas or interstate.
Isn’t it illegal to go overseas for surrogacy?
It’s legal for those residing in Victoria, Tasmania and the Northern Territory to go overseas for commercial surrogacy.
What is commercial surrogacy?
Have you done surrogacy for people where I come from?
Do I need a surrogate from around here?
We are at the very start of our journey to become parents. What happens next?
We don’t live in Brisbane. How can we have a meeting with you?
Do I have to do IVF here for surrogacy?
In the ACT, Victoria, South Australia and Western Australia some or all of the IVF needs to be done locally.
None of the IVF can occur in the Northern Territory, so Territory residents need to go somewhere else.
Australia is one country. Surely the same rules apply across the country?
If we are overseas, can we commit an offence to do with surrogacy and egg donation in Australia?
You may commit a surrogacy offence in Queensland, New South Wales, the ACT and Western Australia if you are temporarily overseas.
If you are living overseas but not domiciled there, you may commit an offence to do with surrogacy under New South Wales law if you are domiciled in New South Wales.
Is it lawful to advertise for an egg donor?
Is it legal to advertise for a surrogate?
It is legal in the Northern Territory to advertise for a surrogate – but IVF and transfer of parentage are not available.
My mother/friend/aunt/sister-in-law has offered to have a baby for us. Can she?
What is surrogacy?
What is traditional surrogacy?
What is gestational surrogacy?
Is traditional surrogacy legal?
IVF clinics may decline to treat because of concerns that the surrogate may not give up the baby. We help clients identify surrogacy options that are right for them, appropriate clinics and identify and deal with risk factors with traditional surrogacy – to minimise risk.
What is the point of having a sperm donor agreement?
When we bring our child back home to Australia, surely we are the parents?
Does the law apply to me when I live in Australia but I am not an Australian citizen?
I am single. Is surrogacy available to me?
Surrogacy is not available in effect in the NT for people living there- due to a lack of laws. Other surrogacy options may be available.
We are in a same-sex relationship. Can we do surrogacy?
Surrogacy is not available in effect in the NT for people living there- due to a lack of laws. Other surrogacy options may be available.
Where can I go for overseas surrogacy?
- Legal settings overseas – to make sure that you are recognised as the parents, and that the human rights of the surrogate and baby are protected.
- Quality and reliability of IVF.
- Exchange rates and cost of the surrogacy journey.
- Health care costs overseas.
- The ease or difficulty in having your child come back to Australia.
- Whether your journey overseas is lawful in that country.
- Whether the surrogacy journey is commercial surrogacy and therefore may be a criminal offence at home.
I live in Sydney but I am not an Australian citizen. Can I do surrogacy overseas?
How old do I have to be to become a parent through surrogacy?
How old does the surrogate have to be?
How old is too old to become a parent through surrogacy?
What is the oldest the surrogate can be?
Experts In Mediation, Divorce, Fertility And LGBTIQ
Page Provan are privileged and honoured to help parents do the best they can by their children