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Family Law & You

Family Law and You is designed to provide visitors to this site who are contemplating separation or divorce with an overview of how family law works in Australia. It is not intended to provide you with legal advice.

Legal advice should be sought from a lawyer.  To find a lawyer in your area who practices in Family Law click here.

The information provided applies to people who are legally married.

The law relating to people in defacto relationships, or same sex relationships, varies from State to State.  For links to the various state Law Societies click here.

The Family Law Act is administered by the Family Court of Australia, the Family Court of Western Australia (for West Australian residents) and the Federal Circuit Court of Australia.

Reaching an agreement

The vast majority of separating couples are able to reach agreement in relation to the arrangements for their children, and financial issues.  Even in cases where one party has found it necessary to commence proceedings in Court, approximately 94% of cases are finalised by an agreement being reached.

There are many services available to assist parties in reaching an agrement. Click here for a list of some of these services.

From 1 July 2006, Family Relationship Centres opened in various loatins around Australia to provide families with information about relationships and separation.  Click here for a list of Family Relationship Centres.  These Centres provide up to 3 hours of free mediation and thereafter they charge a fee.

Before commencing court proceedings (other than in certain circumstances, such as urgency) parties are required to make a genuine effort to resolve matters by agreement.  The Family Court has endorsed "pre-action procedures", setting out the steps which parties are expected to take to try and resolve matters by agreement, and without commencing court proceedings.  A copy of the pre-action procedures is available on the Family Court website.

As Family Relationship Centres are phased in around Australia, the steps which parties must take to try and resolve matters regarding children by agreement before commencing court proceedings will alter.

Until 30 June 2007, parties will need to at least comply with the "pre-action procedures."

From 1 July 2007, most people will need to have a certificate from a family dispute resolution practitioner as to whether a genuine effort has been made to resolve the parenting matter, before they will be able to start court proceedings about their children.

Even when Court proceedings have commenced, the Judges place a heavy emphasis on the need for parties to make a genuine effort to reach agreement.  Various steps in the court process are designed to give parties an opportunity to reach agreement with the assistance of the parties' lawyers and input from a Mediator or Registrar.

Outside the court process, the parties can seek assistance from legally trained mediators and arbitrators, to economically achieve a private resolution of their matter.  The Australian Institute of Family Law Arbitrators and Mediators maintains a list of qualified family law arbitrators.  Click here to find an arbitrator.

Lawyers play an important role in assisting parties to reach agreement, both by providing the necessary advice so that parties can make informed decisions, and by assisting in negotiations.

Children

The Family Law Act sets out a number of important principles in relation to children:

  • The children have the right to know and be cared for by both their parents;
  • That children have a right to spend time, and communicate, on a regular basis with both their parents and other people who are significant to them;
  • That parents jointly share duties and responsibilities regarding their children;
  • That parents should agree about the future parenting of their children;
  • That children have a right to enjoy their culture; and
  • That where the court is asked to make decisions about children, it must regard the best interests of the child as being the paramount consideration.

It is going to cost you less in time, money and emotional distress, and be easier on your children, if you both agree on the arrangements you wish to make for your children after you separate.

There are a number of ways of formalising agreements relating to children, although you are not obliged to do so.  One way is to ask the Family Court or the Federal Circuit Court to make parenting orders by consent.  Another option is to enter into a written parenting plan which records the agreed arrangements.

If you cannot agree on the arrangements for your children, you can apply to the Family Court or the Federal Circuit Court to determine which parent is responsible for what.  These orders are called parenting orders.

They are of four types:

  • Orders about parental responsibility and decision-making
  • Orders about with whom the child with live
  • Orders about the child spending time with, and communicating with, the parent with whom he or she does not live
  • Child Maintenance Orders – these are infrequent because most children are now covered by the Child Support Scheme.

A parent, a child or anyone else concerned with the welfare of the child can apply to the Family Court or the Federal Circuit Court for a parenting order.  For example, grandparents or stepparents are entitled to apply to the Court.

The issues involved in the care, welfare and development of your children can be complex, and any decisions you make now can have significant implications for the future.  You should talk to your lawyer to ensure that all important issues are addressed, and that any agreement reached will be binding into the future.

Lawyers play an important role in assisting parties to reach an agreement, both by providing the necessary advice so that parties can make informed decisions, and by assisting in negotiations.

 

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© 2010 Family Law Section. All Rights Reserved.


© 2010 Family Law Section. All Rights Reserved.