Family Law

In Australia, the Family Law Act 1975 established the principle of no-fault divorce in Australian law. This means that a Court does not consider which partner was at fault in the marriage breakdown. The only ground for divorce is the irretrievable breakdown of the relationship, demonstrated by 12 months of separation. 

There are a few circumstances where it is more appropriate to apply for a Decree of Nullity, namely that the marriage is void, but in those circumstances you would need to first obtain legal advice.  

If you are applying to the Court for a divorce, you would be the applicant. Your spouse is called the respondent. You may apply for a divorce if at the time that you filing, either you or your spouse are: 

• An Australian citizen 
• Domiciled in Australia (that is that you live in Australia and intend to continue living permanently in Australia); or 
• Are ordinarily resident in Australia and have been so resident for one (1) year immediately preceding that date. 

The application to the Court for a decree dissolving your marriage is based on the ground that the marriage has broken down irretrievably. Australia has a "no fault" jurisdiction and the only ground for divorce is an irretrievable breakdown of the marriage. 

To establish that ground, the Court must be satisfied that you and your spouse have separated and lived separately for a continuous period of at least 12 months preceding the date on which you filed your application for divorce. The court will not make an order for divorce if the court is satisfied that there is a reasonable likelihood that cohabitation will be resumed. 

There needs also to be certain information given to the Court about children of the marriage under the age of 18 years. A child of the marriage means: 

1. A child born to you and your spouse before or during the marriage; 
2. Adopted by you and your spouse during the marriage or by either of you with the consent of the other; or 
3. Born during the marriage to the woman as a result of an artificial conception procedure; or 
4. A child of one of the parties if the child has been treated by the husband and wife as a child of their family at the time immediately before they separated. 

Where there are children under the age of 18 years, before the Court can grant your application for divorce, it must be satisfied that: 

1. Proper arrangements in all the circumstances have been made for the care, welfare and development of those children; or 
2. If such arrangements have not been made, there are circumstances by reason of which the decree nisi should become absolute. 

If you are considering getting a divorce, please contact our office for assistance.

The law seeks solutions in "the best interest" of the children.  Public policy officially discourages an approach to settling parenting arrangements by “dividing” the child between parents, like an asset to be distributed. By various reforms to family law, the Australian Parliament has worked hard to change parents’ attitudes about what they might consider are their rights to their children, encouraging instead the idea that it is the children who have rights. 

When a Court makes a parenting order, the Family Law Act 1975 requires it to regard the best interests of the child as the most important consideration. Parents are encouraged to use this principle when making parenting plans.

The Act focuses on the rights of children and the responsibilities that each parent has towards their children, rather than on parental rights. The Act aims to ensure that children can enjoy a meaningful relationship with each of their parents, and are protected from harm and makes clear that:

• both parents are responsible for the care and welfare of their children until the children reach 18 years of age, and
• there is a presumption that arrangements which involve shared responsibilities and cooperation between the parents are in the best interests of the child.

It is difficult for many parents to see their child’s interests as separate and perhaps different from their own, especially when the pain of even a short-term separation from the child seems unbearable.  Although parents themselves are not legally bound to prefer their children’s best interests to their own, it is a requirement that parents consider the children’s best interests as a condition in their family dispute resolution agreements. The Court will determine objectively what is in the child’s best interests and may retrospectively assess whether the behaviour of parents indicates a similar orientation.  

 When parents separate, one of the most important disputes that they need to address relates to the importance of continuing a relationship between the children or child and the parent who they do not live with on a permanent basis.

The Family Law Act sets out that its objective is to ensure that children have the benefit of a meaningful relationship with both of their parents to the maximum extent that is in their best interests and to enable them to "achieve their full potential". The Act also emphasises that there is a need to protect children from any physical or psychological harm from being subjected or exposed to abuse, neglect or family violence.

The principles underlying this objective are, unless it would be contrary to a child's best interests, that:

• Children have the right to know and be cared for by both their parents. 
• Children have a right to spend time on a regular basis and communicate on a regular basis with both parents. 
• That parents jointly share duties and responsibilities concerning the care, welfare and development of their children. 
• That parents should agree about the parenting of their children 
• That children have a right to enjoy their culture.

If parents can agree about the parenting of their children, who their children should live with and the time that their children should spend with the other parent, then they may formalise that agreement in several ways through the Family Court.

If, unfortunately, parents cannot agree about the parenting of their children, then an Application can be made to the Local Court, the Federal Circuit Court or the Family Court for its assistance in resolving disputes. Through the Court process, parents will be encouraged to reach their own agreement about the children, however, ultimately if parents are unable to agree, the Court can make Parenting Orders about a child or children. What is now referred to as a "live with" Order is a Parenting Order and the primary interest of such Orders is always the best interest of the child.

Children of a certain age and/or maturity may also be considered by the Court to have the capacity to express a view that should be considered when the Court comes to make an Order with regard to their care.

The concept of custody no longer exists in Australia. Instead, the two main components to a parenting matter are parental responsibility and residence. The allocation of parental responsibility and determination of who will be the residence parent depends solely on the circumstances of your case. The main consideration in making these decisions is what will be in the best interest of the child. 

 You can organise either a Parenting Plan or Consent Orders. Depending on your situation these can be done to suit your or your former partner's situation and provide the most suitable arrangement for you and your children. 

 This is possible, but until Court Orders are put in place, it is necessary that the parents live close enough to each other so that a relationship can be maintained between the child and both parents. 

Moving interstate is possible after Court Orders are made but often requires compromise and effective communication between the parties so that time between the child and non-residence parent can be facilitated.  The Court will of course consider the best interests of the child as of paramount importance.

 When a couple separates, how the shared assets are divided is usually contentious. The Court has a procedure to resolve property disputes. These are:

• The net value of your property is determined, including superannuation and any debts.
• Financial and non-financial contributions of each party are identified.
• a consideration of the parties’ present and future needs.

The matters that are taken into account are set out in Section 75(2) of the Family Law Act and include (but are not limited to):

  - the age and health of the parties

 - whether each party has care and control of the children

 - the appropriate standard of living

 - the income and financial resources of each party

 - the duration of the relationship

Court orders are made considering all the above factors. The Court must decide if the proposed property division is fair for both parties in order to be just and equitable.

There is no set formula or prescribed rule that determines how property will be divided.  The Courts are not required to split property in a 50/50 ratio. However, the Courts do consider many factors.  Importantly, the Court considers the financial and non-financial contributions either directly or indirectly made by you and your spouse in assessing the appropriate outcome. 

No. Negotiations about property can occur as soon as the marriage breaks down, but if you are divorced you must start Court proceedings or formalise an agreement within 12 months of your divorce becoming final. 

Mediation, or what is referred to by the Family Law Act as “Family Dispute Resolution” (FDR), is an effective alternative to court proceedings and litigation. FDR is a process whereby parties can meet with a FDR Practitioner to discuss their issues and discuss options to resolve disputes that may have resulted from their separation. FDR is ideal to discuss parenting arrangements post separation as well as property matters.

Mediation/FDR is mandatory if there are children involved. Parents or other interested persons in a child’s life cannot go to Court for parenting orders unless a certificate has been issued by an accredited FDR Practitioner to indicate that the parties have attempted FDR. There are exceptional circumstances where the certificate is not required, however, the general rule is mediation is necessary before court proceedings are commenced.

FDR is an opportunity to discuss the party’s concerns and the options available to try and reach an agreement without the matter escalating further or requiring a determination by a Judge or Magistrate. All discussions are confidential and any information exchanged between the parties is not allowed to be used in subsequent Court litigation. There are exceptions to this rule such as where threats are made against the other person or the other person’s property or there is a disclosure that a child may have been subjected to abuse or there is a risk of abuse.

The mediation process can be attended either by the parties on their own or the parties with their lawyers, if they have engaged lawyers or if they wish to have the lawyers present with them. The goal of FDR is to reach agreement to finalise a dispute but even if no agreement is reached, FDR is a positive tool that helps narrow the issues in dispute and assists the parties in their future communication. FDR is a cost effective away of dealing with disputes but it is not appropriate in every case particularly in matters involving family violence. FDR is determined on every matter after speaking to both parties and completing the intake process.