Family Law

Family Law in Australia is governed by the Family Law Act 1975 and is the jurisdiction of the Federal Circuit and Family Court of Australia. The Family Law Act 1975 overseas:

Divorce and nullity
Property division
Spousal maintenance
Issues regarding children

Divorce is the legal end of a marriage, otherwise known as a dissolution of marriage. Australia has no fault divorce, which means that the Court does not consider the reasons behind the marriage ending. Under section 48 of the Family Law Act 1975 the only ground for divorce is an irretrievable breakdown of marriage. This occurs once the couple has been separated for 12 months and there is no likelihood of them getting back together. If there are any children from the marriage under the age of 18 in the family, then the Court can only grant the divorce if it is satisfied that proper arrangements have been made for the children. These arrangements include education, health, financial support, and arrangements in spending time or communicating with each parent. The granting of a divorce does not decide these issues, but they are worked out separately by the parents.

The Family Law Act 1975 covers all types of parents including those who are married, in a de-facto relationship, same-sex relationships and even parents who have never been in a relationship or lived together. Most parents come up with a parenting plan, which is an informal agreement about where the children will live and the financial commitments each parent will make. This is not legally enforced. However, parenting orders made by the Court, which may contain the same information as the parenting plan is legally enforceable. Parenting orders are made by the Court in the best interest of the child. Parents may also agree to child support payments outside of the Court. It is recommended that each parent seeks their own legal advice from a child support lawyer before entering into a binding child support agreement.

If parents cannot agree on a parenting agreement, the Family Law Act 1975 requires parties to attempt to resolve the dispute through family dispute resolution. In most circumstance, the Act requires the parties to obtain a certificate (known as section 60I certificates) from the family dispute resolution practitioner before they file for a parenting order by the Court. The section 60I certificates can be issued when:

One party refused to attend dispute resolution.
If the matter was not appropriate to conduct under dispute resolution.
Parties attended and made a genuine effort to resolve the dispute.
Parties attended and did not make a genuine effort to resolve the dispute.

Section 60CC(2) outlines the primary considerations that need to be made in relation to a child. This includes that the child should have a meaningful relationship with both parents and that the child is protected from physical or psychological harm or exposure to abuse, neglect, and family violence. When considering parenting arrangements, the Family Law Act 1975 sets outlines the following principles:

The paramount consideration is what is in the best interest of the child.
Children have the right to know and have both parents part of the life.
Children have the right to be protected from physical and psychological harm, as well as family violence.
There Parenting should be shared equally, as long as it is in the best interest of the child.
Parents should be able to work out what is best for the children.

Under section 61C of the Family Law Act 1975 parents are deemed to be equally responsible for the care and upbringing of children, unless deemed otherwise by the Court. Children can spend time with the parents they do not live with but are not required to unless it is an order from the Court or it is agreed by the parents.

Financial and property agreements are separate from parenting agreements and must be started within 12 months of the divorce taking effect, unless otherwise agreed. A financial agreement is made between two or more under Part VIIIA (for marriages) and Division 4 of Part VIIIAB (for de facto relationships) of the Family Law Act 1975. You cannot enter into a financial agreement without each part seeking independent legal advice. It is recommended that you seek lawyer specialising in family law.

Family Law covers a multitude of areas. Therefore, it is always best to seek advice from a family law lawyer. They can help:

Clients resolve disputes and reach agreements outside of the Court.
Discuss options and provide assistance with parenting plans.
Advise clients of obligations and requirements of the Family Law Act 1975.
Advise clients on settlement agreements.
Advise clients of the factors the Court considers when making orders.
The client with any necessary documentation.
The client to understand their legal rights and responsibilities and explain how the law applies to their case.

Any information on this website is general in nature and should not be taken as personal legal advice. We recommend that you speak to a lawyer about your personal circumstances.