Family Law in Australia

In Australia, the main legislation covering Family Law matters is the Family Law Act 1975 (Cth). This is applicable to all states and territories except for Western Australia, in which the Family Court Act 1997 (WA) and the Family Legislation Amendment Act 2006 (WA) applies.

The courts that may hear Family Law matters are the Family Court of Australia, the Federal Circuit Court of Australia, and the Family Court of Western Australia.

Marriage

The legislation governing who can marry in Australia currently only allows one man and one woman to be married. One of the partners can be 16 or 17 years old with parent/guardian permission and a Magistrates Court Order. A person cannot marry if he or she is currently married to another person, or if he or she is in a relationship with a parent, descendant, sibling or half-sibling.

Divorce

Australia has a “no fault” ground when applying for a divorce, and the basis for an application is that the marriage has broken down irretrievably. The divorce process itself is fairly straight-forward; however, finances and children create further considerations in the application process.

Before an application for divorce can be made, married couple must have been separated for at least 12 months. If they are separated but remain living under the same roof, for example due to financial constraints, then they will be required to provide further evidence of their separation through affidavits by each person of the marriage, as well as by two other adult persons who can attest to the separation. If, at the time of the application for divorce, the separated couple have been married for less than two years, then they are both required to attend compulsory relationship counselling.

Before a divorce involving children under the age of 18 years will be granted, the Family Court must be satisfied that the children of the marriage will be appropriately provided and cared for.

Property Settlement

If settlement cannot be reached between husband and wife or spouses or de facto partners, then an application can be made to the court to have the division of the assets determined by the Family Court. These assets include real estate, other assets such as shares and businesses, and superannuation. The Family Court will take into consideration the parties’ financial and non-financial contributions during the relationship, as well as children and the earning capacity of both parties, in order to determine an equitable division of assets.

Spousal Maintenance

Where one party does not have the capacity to adequately support themselves financially and the other party has the capacity to support them, the Family Court may determine that spousal maintenance may be required to be paid, and this will usually be determined as part of the overall property settlement.

Financial Agreements

Often incorrectly referred to as “pre-nuptial agreements”, Binding Financial Agreements can be made by the two parties to a relationship either prior, during or after marriage. These Agreements contemplate property division, debts, spousal maintenance, superannuation and other issues. It is important to seek independent legal advice, which is a requirement for a valid financial agreement. Unlike court orders, they are not binding; however, they must be entered into cautiously, as they can still be upheld.

Children

All decisions made involving children will be determined by what the Family Court considers the “best interests of the child”, which is the paramount consideration.

Primary considerations:

  • The benefit to the child having a meaningful relationship with both of the child’s parents; and
  • The need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.

There is an extensive list of secondary considerations that the Family Court also takes into account, including the child’s views, their relationship with each of their parents, and the willingness, ability and capacity of each parent to parent the child.

Who a child lives with and spends time with

If agreement as to parenting arrangements cannot be reached, then either or both of the child’s parents, the child (through an Independent Children’s Lawyer), a grandparent of the child, or any other person concerned with the care, welfare or development of the child can apply to the Family Court for Parenting Orders to be made.

Related concepts include the following:

  • Parental Responsibility: There is a presumption that it is in the child’s best interests for the child’s parents to have equal shared parental responsibility, and the Family Court will only deviate from this presumption in extreme circumstances
  • Equal Time: A child spending equal time with both parents will be decided by the Family Court on reasonable practicability
  • Substantial and Significant Time: If there is equal shared parental responsibility, but equal time is impractical, then the Family Court will usually determine that the child spending substantial and significant time with the other parent is in the child’s best interests

Relocation of a Parent

If one parent is moving a significant distance from the other parent with the motive being to prevent the other parent from spending time with the child, then the Family Court will not look favourably upon this and may order the return of the child. However, if there are genuine reasons for a relocation either within Australia or overseas, then the Family Court will consider what is in the best interests of the child and will protect the ability of the child to spend time with the other parent as much as possible.

Location and Recovery of Children

Where one parent has taken the child, the other parent can make an urgent application to the Family Court for the location and recovery of the child. This process can be quite difficult, and even more so when the child has been taken overseas. If the country where the child has been taken is a signatory to the Hague Convention, then the country will assist the Australian authorities with returning the child to Australia. If the country is not a signatory, then a foreign court may order that the child should live with that parent in that country, and Australian courts must recognise this order. It is important to act expeditiously in the case of abduction of a child by one parent, whether domestically or internationally.

Contravention of Orders

If one parent fails to comply with court orders, then the other parent can apply to the Family Court to enforce the orders. If the parent who contravened the orders does not have a “reasonable excuse”, then the Family Court will impose penalties, ranging from attendance at parenting programs, compensatory time with the child to the other parent, fines, and terms of imprisonment for more serious contraventions.

Change of Child’s Name

The change of a child’s name can often be a difficult and emotional issue, and can arise where the mother resumes using her maiden name, re-marries or enters into a de facto family and wants the child to share her surname. Changing the child’s name requires the consent of both parents except in extenuating circumstances, under which an application to the Family Court can be made for the change without the other parent’s consent. If no court order was applied for and one parent discovers that the name has been changed without their approval, the parent can apply to the Family Court to reverse the name change.

Child Support or Child Maintenance

A child under the age of 18 years must be financially supported by both parents, regardless of whether or not the parents are married or in a de facto relationship. Child support is an amount paid (usually by the parent with whom the child does not live) to the other parent to assist with food, living, educational, medical and clothing expenses of the child.

Parents can agree to an amount between themselves by a private agreement, or at any point in time either parent can apply to the Child Support Agency (Department of Human Services) for an assessment or review of the amount to be paid if circumstances have changed or if they do not agree with the amount. The Child Support Agency can also enforce payment of Child Support if this is required.

Family Violence and Abuse

A victim of family violence and abuse can apply for an Apprehended Violence Order (AVO). There are two types of AVOs in Australia:

  • Domestic Violence Orders (DVO) for those in a domestic relationship with the alleged violent person; and
  • Personal Violence Orders (PVO) for all other individuals.

It is important to seek advice if you are the victim of family violence and abuse, especially if you are contemplating a separation.