Australian family law
Family law in Australia is governed by the Family Law Act 1975 (Cth), which operates in conjunction with the Family Court Act 1975 (WA). Family Court proceedings are heard in the Family Court of Australia, the Federal Circuit Court of Australia or the Family Court of Western Australia.
Court process
If, after attending a family law mediation or dispute resolution, you and your former spouse or partner have been unable to resolve a family issue, you can apply to the Courts to make a final ruling for you. You can apply to the Courts for various orders, including Parenting Orders or Financial Orders.
If you apply for the Court to make a decision, you will need to pay a filing fee. You may be able to apply for a fee reduction depending on your financial circumstances. After you apply to the Court to resolve your matter, the Court will usually set down a date for your matter to be heard. Some matters, where one party may be in danger, can be heard with urgency.
Family Court of Australia
The Family Court of Australia is responsible for hearing the most complex family disputes. It was established in 1975, with the passing of the Family Law Act 1975 (Cth). It started operating on the 5th of January, 1976. It hears family matters in all Australian states other than Western Australia. Western Australia is serviced by the Family Court of Western Australia, and was established with the introduction of the Family Court Act 1975 (WA). Its operation is consistent with Commonwealth legislation.
It was created because there are matters related to de facto relationships and adoptions that extend beyond the scope of Commonwealth power.
The Court’s powers are vast, and include facilitation of possible reconciliations, family counselling, family dispute resolution or other family services; including breaches or non-compliance with previous orders the Court has made.
Federal Circuit Court of Australia
The Federal Circuit Court has limited jurisdiction and typically hears matters related to spousal maintenance, parenting orders, property disputes and the enforcement of Court orders made by the Family Court.
When hearing matters, the Federal Circuit Court must comply with the regulations set out in the Act and operates under the same jurisdiction as the Family Court in relation to matters involving child support.
Divorce
As everyone knows, marriages unfortunately do not always work out. The Family Law Act 1975 (Cth) lays out the regulations surrounding divorce in Australia.
No-fault divorce
Up until 1975, it was difficult for spouses to divorce as they would need to prove that their spouse had been unfaithful, was an alcoholic or was medically insane. It was often humiliating and very expensive for the spouse wishing to divorce. In some instances you would need to hire a private investigator and supply a great deal of evidence to be granted a Divorce Order.
The Family Law Act 1975 (Cth) introduced the concept of the no-fault divorce for couples whose relationship has broken down irreconcilably. Since the law was introduced, Australian couples have had the right to apply for a no-fault divorce.
This means that all you need to do is file the application and pay the fee; and the divorce will normally be granted. Before you apply for a divorce, you must have been separated for at least 12 months. If you still live under the same roof, you will need to prove that you are no longer in a domestic relationship. This means that you may need to supply additional documents or an affidavit supporting your claim of separation.
In matters where there are children that are under the age of 18, the Court will need to be satisfied that proper arrangements have been made for the children. The Court will consider all the circumstances before granting the Divorce Order.
Divorce application
If you want to, you can make a sole application or a joint application for a divorce. If you file a sole application for the divorce, then the other party to the marriage will be served with the divorce documents. After the divorce is finalised, a record of the Divorce Order will appear when you log into the Commonwealth Courts Portal. There is no time limit on applying for divorce, so if, after five or ten years of being separated, you want to apply for a divorce, you can do so.
Annulment
An annulment is different to a divorce. The effect of an annulment is that in the eyes of the law, you were never legally married. If you are of the Catholic faith then an annulment is a better option for you than divorce because you will be permitted to get married again in the Catholic Church. If you are divorced, you cannot get married in the Catholic Church. Both parties must be present at an annulment hearing, whereas if you apply for a divorce you can make a sole application.
You can apply for an annulment anytime after getting married. There is no waiting period.
Cohabitation and De facto relationships
Not all couples want to get married. Some couples just want to live together, without registering their relationship. These couples will be considered being in a de facto relationship. A de facto relationship is defined in Section 4AA of the Family Law Act 1975 (Cth).
A de facto relationship is when couple lives together on a genuine domestic basis.
If you are in a de facto relationship then you can apply to the NSW Births, Deaths and Marriages for the registration of your relationship. If your relationship is registered, then you can save yourself a lot of hassle if you split; and subsequently need to go to Court to resolve financial matters or parenting matters.
Other states in Australia, including Victoria, also allow couples to register their de facto relationship, so that you are protected in case the relationship breaks down. You do not need to live together to register your relationship.
Same-sex marriage
Since the 9th of December 2017, when the Marriage Amendment (Definition & Religious Freedoms) Act 2017 (Cth) was introduced, same-sex couples in Australia have been able to get married. The effect of this is that same-sex couples now have the same legal rights as opposite-sex couples. This means that if same-sex couples divorce or need to apply for parenting orders or spousal maintenance orders, their relationship can be proved much more easily. Same-sex couples can also prove the duration of their relationship, which prior to the legalisation of same-sex marriage was much more difficult.
Same-sex couples also have the option of registering their relationship in New South Wales under the Relationships Register Act 2010 (NSW). Other states in Australia have similar legislation giving you the right to register your relationship.
Polygamy and Bigamy
Unlike monogamy where you only have one spouse, or are in a relationship with one person, polygamy is the practice of having multiple spouses.
In Australia, you can be in a polygamous relationship, and you can have multiple partners, but you cannot have multiple spouses. This means that you cannot legally be married to multiple people at the same time. If you are married to multiple spouses, this is bigamy. Bigamy is a criminal offence in Australia as outlined in the Family Law Act 1975 (Cth).
Parental responsibility
If, after having children, two parents separate or divorce, then the presumption is that both parents will have equal shared parental responsibility for the children of the marriage.
Financial responsibility for children
Equal shared parental responsibility means that both parents have a responsibility to support their children, financially and emotionally. Financial support can either be paid through child support, child maintenance or through sharing the care of the child. If you have a higher level of care for your child, then the amount of child support that you need to pay may be lower.
Best interests of the child
Fewer than 10% of family matters make it to Court. Most parents resolve parenting matters by themselves. In circumstances where the matter is handled by the Court, the Court will consider the best interests of the child.
If the child has special needs or a disability that one parent would struggle to support the child with, then the other parent may be awarded sole parental responsibility.
AVOs and ADVOs
If you are in physical danger of being harmed by your domestic partner or spouse, you can apply for an ADVO (Apprehended Domestic Violence Order) through the Police or directly through the Family Court.
If the ADVO is granted, then it will normally have standard conditions attached to it. Other conditions may be attached as well, such as the person the ADVO has been served on, not consuming alcohol. An ADVO may or may not affect the person’s ability to see your children, if you have children together. The Court will consider the risk that you, or they will be harmed when making a decision. It is very rare, even in cases where an ADVO has been made, that the Courts will make a no-contact Order.
Unless stated otherwise, an ADVO is valid for 12 months.
Property and financial settlement
After a marriage or de facto relationship breaks down, the matter of property settlement needs to be considered. You and your former spouse may elect to make a limited financial agreement or a binding financial agreement.
If a financial settlement is required, then this can either be paid as spousal maintenance at periodic intervals, or it can be paid as a lump sum.
Before you sign any agreement or make a decision, you should have any documents reviewed by one of our legal practitioners. They can give you advice and make recommendations on any amendments to the agreement that should be made.
Another option, if you do not wish to take the matter to court is to make use of the Attorney General’s digital service. It allows couples to negotiate with their former spouse online. The system uses artificial intelligence to make suggestions on how the assets should be split. It takes into consideration the couple’s particular circumstances and the kinds of agreements that couples in similar circumstances have made.
There are strict time limits to commence property settlement proceedings. You have only 12 months from the date of a Divorce Order being granted, or two years if you in a de facto relationship.
Surrogacy and adoption
Surrogacy in NSW is governed by the Surrogacy Act 2010 (NSW), which gives anyone considering surrogacy the opportunity to enter into a non-commercial surrogacy agreement. Commercial surrogacy agreements are prohibited in Australia. You can only enter into an altruistic surrogacy agreement where a surrogate mother has agreed to surrogacy out of goodwill, without being compensated for her services. This means that when the baby is born, she cannot be compelled to give up the child. It is however possible for the non-birth parents to apply to the Court for a Parenting Order giving them parental responsibility for the child.
Anyone in NSW can apply to adopt a child. The Court will consider all the circumstances when deciding whether or not to make a Parenting Order granting the proposed adoptive parents, parental responsibility for the child. The guidelines are set out in the Adoption Act 2000 (NSW).
Frequently Asked Questions
Family Law is a vast area that covers a range of topics. We’ve covered a few of the most frequently asked questions we get below.
What is the Family Law Act Australia?
The Family Law Act 1975 (Cth) was enacted to focus on the rights of children. It also sets out the responsibilities that each parent has for their children. The purpose of the Act is to ensure that children can have a meaningful relationship with each of their parents; and that they are protected from harm. It provides information about the financial support obligations that parents may have for their children. It also provides details for what parents should do if they disagree on parenting matters.
How does family law work in Australia?
The purpose of Family Law in Australia is to help people resolve legal issues related to the dissolution of a marriage. People are encouraged to make private agreements without going to Court, however when this is not possible, the Courts can help people resolve their matter. If the Courts are involved then any decision made by a Judge or Magistrate is binding in law. This means that if you breach a Court Order, you may be prosecuted, depending on the circumstances.
What is a property settlement in family law?
Property settlement is the division of assets and property after a relationship has ended. It could involve a lump sum payment or regular spousal maintenance.
Is family law federal or state in Australia?
Matters in every state, other than Western Australia, fall under Federal Legislation. The Family Law Act 1975 (Cth) governs the rules for dealing with family matters. Matters in Western Australia fall under state legislation and are governed by the Family Courts Act 1975 (WA) and will be heard in the Family Court of Western Australia.
Do unmarried parents have equal rights?
Yes. Australian family law operates on the presumption that children have a right to a meaningful relationship with both of their parents. Whether or not the parents were married is irrelevant. The Court places primary considerations on the best interests of the child. This may mean they decide that one parent should have sole parental responsibility, or that both parents should have equal shared parental responsibility.
This does not mean that both parents will spend equal time, or even significant time with their children. It just means that both parents have the right to make joint major decisions in relation to the child.
The Court will assess all the facts and then place paramount consideration to what will be in the child’s best interests. If a child has been exposed to family violence of neglect, then it is very likely that the Court will award parental responsibility to the other parent.
Want to know more?
If you would like to know more about family law, then contact our Unified Lawyers legal team. We have expertise in dealing with all family matters, and have helped previous clients reach a successful outcome, such as being awarded shared custody after a relationship has broken down.
Our team of lawyers are available six days a week from Monday to Saturday. We can be contacted via telephone, email or video conference. We will strive to help you resolve your matter in the most painless way possible. From the outset, we will explain legal terms in a simple manner, so that you are not confused by legal jargon. We will also be upfront and honest with you throughout the process so that you know exactly where you stand and what your options are.
Give us a call on 1300 667 461 for a confidential free discussion with an experienced family lawyer.
