Currently, family law in Australia is governed by the Family Law Act 1975 (FLA).
Family law in Australia has undergone a number of transformations in recent history, notably in the form of the establishment of the FLA which introduced no-fault divorce in Australia, the shift towards Alternative Dispute Resolution as a substitute to litigation, recognition of de facto relationships under the FLA, and changes to how family violence is dealt with in relation to family law matters.
The FLA encapsulates a wide array of family related issues including divorce or separation for de facto couples, property settlement, parenting arrangements, spousal maintenance, child support and family violence and intervention orders.
Understanding family law is especially important for individuals going through a relationship breakdown and couples wanting to divide their assets and deal with parenting arrangements.
These aspects of family law will be addressed below in more detail, providing a comprehensive outline of everything you need to know in relation to family law.
What is Family Law?
Family law is the area of law specifically related to regulating family relationships.
It encompasses a broad array of matters where they are all related to family such as parenting, marriage, divorce and financial matters including property division and child support.
Family law matters are the jurisdiction of the Federal Circuit and Family Court of Australia (FCFCoA), and are covered by the FLA.
Divorce in Australia
Divorce is the legal termination of a marriage. In Australia, divorce can occur where neither party is at fault for the dissolution of the marriage, the marriage simply needs to have broken down with no reasonable chance the parties will get back together.
To demonstrate this, the couple will need to be separated for 12 months or more.
A divorce does not include any arrangements for children or property settlement, it simply recognises that the marriage has ended.
A person can apply for divorce in Australia if:
- they or their spouse identify Australia as their home or intend to reside in Australia indefinitely,
- are an Australian citizen or ordinarily reside in Australia and have done so for the past year preceding filing for divorce.
Applications for divorce can be filed online with the Court and although individuals have the option to file for divorce themselves, a lawyer can also file divorce applications on behalf of a client.
Couples married less than two years will need to file a counselling certificate with the Court.
Couples separated but living under the same roof in the 12 months prior to filing for divorce will need to provide extra evidence of the marriage breakdown with an Affidavit.
There are also fees involved with filing a divorce application which are available on the FCFCoA website, these fees can be reduced in some circumstances.
If a person has filed for divorce as a sole applicant, that is not jointly with their spouse, they will need to serve the application on the other party.
In some circumstances, parties will need to attend court such as where there are children under 18. Once the divorce is granted by the Court, it will be finalised one month and one day later unless a shorter time is ordered by the Court.
If you need more information or expert advice on the divorce process in Australia, don’t hesitate to reach out to us. Our lawyers are here to provide the support and guidance you need during this challenging time. Contact us today!
Parenting Arrangements
Parents have ongoing responsibilities to their children regardless of the relationship between both parents.
The FLA also highlights the importance of children having a meaningful relationship with both parents, although the paramount consideration is the safety of the children.
- Where parties agree on arrangements relating to their children, arrangements can be formalised through parenting plans or consent orders.
- Where parents do not agree on matters relating to their children, they can attempt to come to an agreement through Family Dispute Resolution, followed by applying to the Court for parenting orders where Family Dispute Resolution is not successful.
Parenting is divided into two categories under Australian family law:
- Parental responsibility; and
- Parenting Time.
Parental responsibility refers to related responsibilities associated with raising a child such as authority to make decisions about the child’s welfare from medical needs to schooling.
Ordinarily parents have parental responsibility for their child however a court may decide that it is in the best interests of the child to remove responsibility from one or both parents, thereby removing some or all of their authority and duties in relation to the child.
Parental time refers to the time parents spend with their child. Parents may have a 50/50 equal share time arrangement, or the child may reside with one parent and spend time with the other. The best interest of the child will be assessed when parents cannot agree on an arrangement.
Parenting Plans
Parenting plans are not filed in a court and are therefore not legally binding, this type of parenting agreement is most suitable for parents who can agree on parenting arrangements.
Parenting plans do not have to follow a strict format but may consider matters set out in section 63C(2) of the FLA including:
- who the child is to live with;
- the allocation of parental responsibility;
- the communication the child is to have with other people;
- maintenance of the child;
- the process for resolving disputes around the parenting plan;
- the process for changing the plan; and
- matters relating to the care, welfare or development of the child or other aspects of parental responsibility
Although parenting plans are not legally binding and do not need to be drafted by a lawyer, legal advice should be sought in relation to creating a parenting plan, as if the matter proceeds to court for parenting orders, the parenting plan may be deemed relevant to these orders.
Parenting Orders
Parenting orders can be made by the Court if the parties’ consent to parenting orders, these are known as Consent Orders, or the orders can be made by the Court if an agreement can’t be made by the parties.
Consent Orders are legally binding and enforceable as they are made by the Court. Although Consent Orders are made where both parties come to an agreement about parenting arrangements, the Court will only make the orders if they’re satisfied that the agreement is in the best interests of the child.
Parenting orders may also be made by the Court where the parents cannot come to an agreement about parenting arrangements. Such parenting orders are legally binding as well and are made in the best interests of the child, after there has been genuine effort to reach agreement between the parents which has failed.
Spousal Maintenance
Spousal maintenance is a payment made by a party to a marriage to support the other party where they are unable to adequately support themselves.
Where couples were not married, but were in a de facto relationship, a similar payment called a de facto maintenance payment can be made for the same reasons.
Spousal, or de facto maintenance is covered by the FLA.
Spousal maintenance payments can be ongoing or in the form of a lump sum and are paid privately, unlike child support which can be managed through Services Australia.
When making an order for spousal maintenance, the Court assesses the needs of the party in need of financial assistance, and the capacity of the other party to support them financially. When making orders the Court may consider the following about both parties:
- Age and health;
- Income, property and financial resources;
- Ability to work;
- What is a suitable standard of living in the context of the relationship;
- If the marriage or de facto relationship affected the income capacity of the party in need; and
- With whom any children under 18 are residing.
Generally, a person is not entitled to continue receiving spousal maintenance once they marry someone else, although in some circumstances the Court may order otherwise.
If the party receiving spousal maintenance starts a new de facto relationship, the Court will take into account the financial circumstances between that party and their new partner.
There are time limits in relation to when you can claim spousal or de facto maintenance, so it is important to speak to a lawyer immediately to retain legal advice if your seeking spousal maintenance.
If you need guidance on spousal maintenance or de facto maintenance matters, our lawyers are here to help. Contact us today for expert legal advice tailored to your unique situation.
Child Support
Child support payments are ongoing payments made between parents in order to financially support the cost of raising a child. These payments are normally arranged through Services Australia and are assessed using a complicated formula by Services Australia based on the following:
- Both parents child support income is calculated based on their income a minus self-support amount;
- Both parents combined income;
- The percentage of each parent’s income;
- Both parent’s percentage of care for the child;
- Each parent’s percentage of costs;
- Each parent’s child support percentage;
- The costs of the child based on age; and
- Total amount of child support payable.
Child support may also be arranged privately as well, usually where one or both parents have a higher income and want to accommodate payment of costs not covered by child support normally such as private school fees and extra-curricular activities.
Parents can therefore agree to create a binding child support agreement. These agreements require both parents to seek separate independent legal advice in relation to the agreement and cover matters such as:
- amounts to be paid by which parents,
- when and how payments will be made,
- when the agreement will cease (such as when the child turns 18)
- and termination arrangements.
They are enforceable once the parties sign up to them.
Family Violence and Intervention Orders
Family violence is violence which occurs within a family and may include physical, emotional and financial abusive behaviours such as:
- Violent assault;
- Sexual assault;
- Repeated insults and criticism;
- Damage or destruction of property;
- Killing or injuring a family pet;
- Controlling and restricting finances;
- Isolating a family member away from their friends, family and culture;
- Depriving someone of their freedom;
- Threatening injury to a family member or themselves;
- Intentional humiliation; and
- Monitoring and stalking behaviours.
Family violence can impact family law matters in relation to property settlement and parenting orders.
Family violence can impact parenting orders as the Court’s number one consideration when making parenting orders is the need to protect the child from harm. Where the Court finds that a child may be at risk due to family violence, the Court may order that the child spend less time with the violent parent or that the child see the parent under certain conditions such as under supervision.
Family violence has more weight in relation to parenting orders, however it can still impact property settlements where the Court finds that there has been a “discernible impact” on the victim’s ability to make financial contributions to the marriage as seen in Marriage of Kennon (1997) 22 Fam LR 1.
Family Violence Intervention Orders (FVIO) are court orders obtained where there has been family violence in order to protect an affected family member. These orders usually prevent the perpetrator from contacting the victim or coming within a certain distance of them.
Where an FVIO is in place, parties are obligated to inform the Court that there is an FVIO so that the Court can identify possible risks to children involved.
FVIO’s are usually given considerable weight by the Court in relation to parenting orders.
Navigating the Family Court System
It is important to seek legal advice to help navigate through the Family Court system as it can often be complicated, confusing and stressful.
There are a number of documents such as affidavits that need to be filed with the Court depending on what a particular family law case involves. Information is available through Victoria Legal Aid and Federal Circuit and Family Court of Australia to assist with preparation for court, although a lawyer can help with this.
Choosing the Right Family Lawyer
When choosing the right family lawyer for your case it’s important to do your research, check reviews and ask around to find a reputable family lawyer.
Location may also be important so it may be better to choose a lawyer who works nearby.
At Matthies Lawyers, we are here to cater to your family law needs. Our team of family lawyers proudly serves clients in South Yarra, Toorak, Windsor, Prahran, Armadale, and Richmond.
Contact us today for expert legal advice and support or call +61 3 8692 2517.
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Kate Scolyer – Solicitor– Matthies Lawyers
Disclaimer: This article contains general information only and is not intended to be a substitute for obtaining legal advice.