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There is no definition of the typical Australian family. While the nuclear family (mum, dad, kids) still exists, the way society views family has changed. Families are now a mixture of the nuclear family, same-sex parents, step-siblings, single parents, etc. Regardless of the type of family you have, Family Law disputes are complex and highly emotional. They can have a lasting impact on children and young people.
Family Lawyer Sydney
Our team of expert family lawyers will help you through this tough period and ensure you and your loved ones get back on track with the right ongoing support and security.
Family Law introduction
In Australia, Family Law is dealt with at the Commonwealth level through the Family Law Act 1975 (Cth). Each state in Australia complies with the Family Law Act, however, the Family Law system is slightly different in Western Australia.
Western Australia operates differently because it has not referred its Family Law powers to the Commonwealth. This means that married couples are dealt with under the Commonwealth system, however, de facto couples are dealt with under the State’s system. This impacts on property settlement and parenting matters for de facto couples. The Family Court of Western Australia is the only court that deals with Family Law in Western Australia.
There are three components to Family Law:
- Parenting arrangements
- Property settlement
Before the courts will consider each component, they like to see that parties to court proceedings have attempted to resolve their issues. This is usually achieved through alternative dispute resolution such as mediation.
Family court matters are currently heard in the:
- Family Court of Australia (for less complex matters), and
- Federal Circuit Court of Australia (for more complex matters e.g. family trusts, etc).
These courts currently share an online service portal where your documents can be lodged and court fees can be paid.
The Attorney-Generals Department recently issued a media release announcing its intention to merge the two courts. The aim is for Family Law matters to be heard in the Federal Circuit Court of Australia.
There are a number of support services available for families experiencing breakdown e.g. counselling, domestic violence assistance, referral to mediation services, etc. Talk to our team to find out what services are available in your area.
There are two types of relationships, marriages and de facto relationships.
- No-fault divorce was introduced by the Family Law Act 1975 (Cth). That means you no longer need to prove that someone was at fault for the relationship breakdown e.g. through an extramarital affair.
- If your marriage breaks down in less than two years, the court will require you to complete mediation or marriage counselling before it will issue a divorce. Family violence may be an exception to this.
- You must prove that you have been separated for at least 12 months before you can apply for a divorce. This can be proven through separate utility bills, change of licence address, etc. It may be possible to separate from your spouse while still living in the same house. This can be proven through a division in the utilities, affidavits by friends or family who can attest to the separation, etc. Some people with children often separate but continue to live together to prevent causing distress to their children.
- Once you have been separated for 12 months, you can file an Application to Divorce. You can apply for a divorce on your own, or make a joint application.
- If you do not have children and you do not require property settlement, it is a straightforward process. If you have children under the age of 18, you will be required to attend a hearing.
De facto relationship
- You are considered to be in a de facto relationship if you have lived with your partner in a domestic capacity for more than two years.
- Unlike marriage, if you separate from your de facto partner, you do not need to apply to the courts for an order to separate.
- If you have children or property, including debt, you may need to apply for court orders.
Spousal maintenance is paid by one partner to another in the event they are unable to meet their own reasonable expenses from their personal income or assets.
There are two types of spousal maintenance:
- Spouse maintenance – you must apply within 12 months of your divorce being granted
- De facto partner maintenance – you must apply within two years of the breakdown of your relationship
The court considers a person’s:
- Age and health
- Income, property and financial resources
- Ability to work
- Suitable standard of living
- If the marriage has affected your ability to earn an income
Before making a decision relating to children, the court considers the best interests of the child. The court also prefers that where possible, parents work together to make decisions regarding their children rather than relying on the courts to.
Some of these decisions include:
- Who the children live with
- Where the children go to school
- Who the children can spend time with e.g. family members, family friends, etc.
- Medical decisions
- Who the children spend holidays with
It is a common misconception that equal shared parental responsibility means equal access to or time with the children. That is not true. Both parents are equally responsible for the care of their children, however, it may not be safe or practical to have equal access to or time with the children.
A parenting agreement is an agreement between the parents about how they will look after their children. A parenting agreement sets out the same information as above.
A parenting agreement can be informal or formal and amended at any time to reflect changing circumstances.
An informal parenting agreement can be a verbal or written agreement between parents. A written agreement can be drafted during your mediation sessions with the help of the mediator.
An informal parenting agreement is not binding and can be amended at any time. It is not enforceable. An informal parenting agreement is recommended for young children as circumstances quickly change as they grow up e.g. starting school, extracurricular activities, etc.
Formal parenting agreements are also called consent orders. A formal parenting agreement is a written agreement reached by both parents that is then presented to the Family Law courts to be signed off on. It is binding and enforceable and the courts take breaches seriously.
Consent Orders (Parenting Orders)
Consent orders are court orders stipulating the day-to-day care arrangements for children. They are enforceable and the court takes any breach seriously.
You can apply directly to the court for parenting orders, however, if you have made no attempt to establish a parenting agreement before applying, it is highly likely that the court will send you to mediation before it will hear your matter.
A new parenting agreement can alter the consent orders and it is recommended that you receive legal advice before entering into a new parenting agreement.
Child support is paid by the non-residential parent to the parent (who the child resides with), for the ongoing care of the child. It can be self-managed (informal), registered assessment or court-ordered. It can impact other areas of your life, for example, your will, your Family Tax Benefit and any new relationship you enter into.
Self-managed child support does not require a formal assessment or registration. You can come to an agreement with your ex about:
- How much to pay
- When to pay
- How to pay
You can make an application to Services Australia to have child support assessed and determine:
- Who needs to pay child support
- How much needs to be paid
- When payment needs to be made
Payment is assessed based on:
- The parent’s income and combined income
- How much time each parent cares for the child
- The age of the child
Court-ordered child support
The court has the jurisdiction to order a parent to pay child support. This often occurs where the child is over the age of 18 and has a disability or is participating in further education. If the court orders child support, you can apply to Services Australia to have them manage the assessment and payments.
Financial agreements (pre-nuptial agreement) can be established at the start of a relationship, during a relationship or after a relationship ends to prevent or resolve disputes. They apply to both married and de facto couples, however, they only apply to de facto couples if they normally reside in NSW, Queensland, Victoria, South Australia, the Northern Territory, the ACT or Norfolk Island at the time the agreement was made.
Financial agreements are binding and enforceable. They can cover:
- Financial settlement including superannuation after separation,
- Spousal maintenance upon separation, and
- Incidental issues
Time limits apply to property settlement and it is advised that you complete it as soon as possible.
If you are:
- Married: applications for property settlement must be made within 12 months of your divorce being finalised
- De facto: applications for property settlement must be made within two years of the breakdown of your relationship.
Property settlement can be completed by:
- An agreement between the parties without going to court
- If both parties agree, you can formalise your agreement by applying to the court for consent orders
- If both parties are unable to agree, you can apply to the court for financial orders
The court will consider:
- Your assets, debts and their total value e.g. house, cars, superannuation, loans, credit cards, etc
- Direct financial contributions by both parties e.g. wage or salary
- Indirect financial contributions by both parties e.g. gifts and family inheritance
- Non-financial contributions e.g. child-raising, homemaking, etc
- Future requirements e.g. age, health, financial resources, ability to earn, caring for children, etc.
Family dispute resolution (mediation)
Mediation is a dispute resolution process that assists parties to come to a mutual agreement to resolve their disputes. It is the recommended first step during a relationship breakdown for both parenting and property disputes. Many people find mediation successful because it gives them an opportunity to be heard and apply solutions they are happy with.
If you have not attempted mediation prior to applying to the courts for orders, the court has the discretion to make a referral to mediation before it will hear your matter. If the court hears your matter, you may not like its solution to your problem.
A mediator can issue a section 60I certificate stating that mediation was not successful or appropriate and you can apply to the courts for orders. Mediation may be unsuccessful because:
- The practitioner (mediator) considered it inappropriate e.g. domestic violence
- One or both of you refuses to participate
- You both made a genuine attempt to resolve your dispute but could not reach an agreement
- One or both of you failed to make a genuine attempt to resolve your dispute
- You both attempted to resolve your dispute, however, the practitioner (mediator) decided it was no longer appropriate to continue.
Mediation is usually conducted without your lawyer present. However, there may times where it is necessary to have your lawyer present (legally assisted mediation). The mediator has the discretion to decide whether mediation will require your lawyer to attend.
The above is general legal information and should not be considered legal advice. You should speak with one of our family lawyers for legal advice tailored to your specific legal matter. The courts deal with matters on a case by case basis. It should also be noted that there may be court delays due to COVID-19.
Frequently Asked Questions.
If there are no court orders in place and there are no concerns for the children’s safety, you should not prevent your partner from having access to the children. The court does not look favourably on this behaviour as it does not view it as being in the best interests of the child.
Apart from the cost of your family lawyer, there are a number of expenses involved in separating. Some common expenses include court fees:
- Application for divorce = $930*
- Application for consent orders = $170*
- Initiating application – interim and final parenting and property (the Family Court of Australia) = $715*
- Initiating application – interim and final parenting and property (the Federal Circuit Court of Australia) = $715*
- Daily hearing fee = $655*
Some of these fees may be reduced in the event that you are able to prove you are suffering from financial hardship or you have a Government concession card.
*These figures are accurate as of the publication date of June 2021.
No. If you and your partner have separated amicably and there is nothing that will complicate your separation e.g. being married less than two years, family violence, children under the age of 18, etc, you can complete and file all the necessary paperwork without going to court. It is still recommended that you receive legal advice tailored to your specific circumstances to avoid any complications that might arise.
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