Family law in Australia covers a wide range of legal matters that affect families during significant life transitions. When relationships break down or family circumstances change, understanding the various areas of family law becomes essential. Walkden Law can help you navigate these complex legal waters with compassion and expertise.
Key Takeaways
Table of Contents
What is family law in Australia?
Legal framework
Australia’s family law system primarily operates under the Family Law Act 1975, which provides the foundation for dealing with relationship breakdowns. This federal legislation works alongside state laws and common law principles to address various family matters. While most family issues fall under federal jurisdiction, states and territories retain responsibility for child protection, adoption, and some aspects of domestic violence law.
Which courts and tribunals handle family law
The Federal Circuit and Family Court of Australia (FCFCA) is the main court handling family law matters. This court operates in two divisions – Division 1 (formerly the Family Court) handles complex cases, while Division 2 (formerly the Federal Circuit Court) manages most family law applications. State children’s courts deal with child protection matters, while various tribunals oversee adoption and surrogacy arrangements.
Who can seek help and when
The family law system serves married couples, de facto partners (including same-sex couples), parents, and anyone with a significant interest in a child’s welfare. Time limits apply to certain applications – divorce requires 12 months of separation, while property settlements must generally be initiated within 12 months of divorce finalization (for married couples) or within 2 years of separation (for de facto couples).
Separation and divorce
Difference between separation and divorce
Separation occurs when a couple stops living together as a unit, though they may still share the same residence in some cases. Unlike separation, divorce is a formal legal process that officially ends a marriage. Australia follows a no-fault divorce system, requiring only evidence of 12 months’ separation without any need to prove wrongdoing by either party.
Applying for divorce
To qualify for divorce in Australia, you must demonstrate that your marriage has irretrievably broken down by living separately for at least 12 months. Applications can be made jointly or by one spouse alone. The court doesn’t consider why the marriage ended, focusing instead on proper arrangements for any children under 18.
“Many people are surprised to learn that divorce is actually separate from resolving property and parenting matters. These issues can be addressed before, during or after the divorce process.” – Walkden Law
Interim steps after separation
The period immediately following separation often requires temporary arrangements. Parties can seek interim orders for parenting matters or urgent financial issues. These temporary arrangements remain in place until final orders are made or the parties reach agreement.
Parenting and children’s matters
Best interests of the child
The paramount consideration in all parenting matters is the best interests of the child. Courts assess numerous factors, including the benefit of the child having meaningful relationships with both parents balanced against the need to protect the child from harm. Children’s views are considered based on their maturity and understanding.
Parenting orders and parenting plans
Parenting arrangements can be formalised through court-issued parenting orders or privately negotiated parenting plans. Parenting orders are legally binding and enforceable, covering aspects like who the child lives with, communication arrangements, and decision-making responsibilities. Parenting plans, while not legally enforceable, provide a flexible written agreement between parents.
Property and financial settlements
Four-step property settlement process
Courts follow a four-step approach when determining property settlements:
Binding financial agreements and consent orders
Couples can formalize property settlements through binding financial agreements (before, during, or after a relationship) or consent orders approved by the court. While both provide certainty, consent orders have the benefit of court approval, ensuring the agreement is fair and reasonable.
Child support
How child support is assessed
Services Australia administers child support using a formula based on both parents’ incomes, the percentage of care each provides, the number and ages of children, and whether there are other dependents. This administrative assessment can be varied in special circumstances or by private agreement between parents.
Domestic and family violence
Protection orders and intervention orders
Family violence protection orders (called different names in different states) provide legal protection for victims of domestic violence. These orders can prohibit certain behaviours, restrict contact, or remove the perpetrator from the family home. Emergency orders can be issued quickly when immediate protection is needed.
Family dispute resolution and mediation
When mediation is required
Before filing parenting applications in court, most parents must attempt family dispute resolution and obtain a certificate from an accredited mediator. Exceptions exist for urgent matters, cases involving family violence or child abuse, or when mediation is inappropriate or impractical.
International family law issues
Hague Convention and international child abduction
Australia is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, which provides a process for the return of children wrongfully removed from their country of habitual residence. This treaty helps prevent parents from forum-shopping by taking children to countries with more favourable laws.
Practical steps after separation
Financial and paperwork checklist
After separation, it’s advisable to gather important financial documents, open individual bank accounts, update wills and beneficiaries, and make a list of assets and debts. Consider changing passwords for personal accounts and redirecting personal mail if you’ve moved out of the family home.
Common myths about family law in Australia
Common misconceptions include beliefs that mothers automatically get custody, assets are always split 50/50, and that you need to go to court to resolve family law matters. In reality, there’s no presumption favouring either parent, property division follows the four-step process rather than an automatic equal split, and most cases settle through negotiation without court intervention.
Seeking professional advice
While general information provides a starting point, family law matters benefit from personalised advice. Each family situation has unique aspects that may significantly affect legal outcomes. Getting early legal advice helps you understand your rights and obligations from the beginning.
When facing family law challenges, seeking proper legal guidance can make a significant difference in outcomes. Walkden Law provides expert assistance across all areas of family law, helping you make informed decisions during difficult times. Don’t hesitate to reach out for professional support tailored to your specific circumstances.
