A Guide to Family Law in Australia

Family law in Australia provides the legal framework for resolving family disputes and managing relationship breakdowns. Whether you’re contemplating separation, seeking a divorce, or navigating custody arrangements, understanding how the Australian family law system works will help you make informed decisions during what can be a challenging time.

The Court System

The Australian family law system operates primarily through the Federal Circuit and Family Court of Australia (FCFCA), which handles family law matters across all states and territories, except Western Australia which maintains its own Family Court system. 

Separation and Divorce

Separation occurs when a couple decides to end their relationship and stop living together as a married couple. No court process is required to separate, and couples can even be considered separated while living under the same roof (“separation under one roof”) if they can prove they’ve ceased living as a married couple. The date of separation is significant as it marks the beginning of the mandatory 12-month waiting period before divorce.

Divorce, by contrast, is the legal dissolution of marriage and requires court involvement. To obtain a divorce in Australia, you must meet these requirements:

• Be separated for at least 12 months
• Prove the marriage has irretrievably broken down
• Submit an application (either jointly or individually)
• Pay court fees (reductions available for eligible applicants)
• If children under 18 are involved, satisfy the court regarding care arrangements

Property and Financial Settlements

Property division can be initiated at any time after separation and doesn’t require waiting for divorce. The court uses a four-step approach to determine fair division:

1. Identifying and valuing all assets, liabilities, and financial resources

2. Assessing both financial and non-financial contributions (including homemaking and childcare)

3. Considering future needs (income capacity, age, health, care responsibilities)

4. Ensuring the final settlement is just and equitable

Couples can resolve property matters through private agreement (formalized through Consent Orders), mediation, or court proceedings if agreement cannot be reached.

Parenting Arrangements

The law focuses on children’s best interests rather than parental rights. Parents are encouraged to develop parenting plans through mediation, but if agreement can’t be reached, the court can make binding parenting orders. These orders typically cover:

• Living arrangements
• Time spent with each parent
• Decision-making responsibilities about education, health, and welfare
• Communication arrangements
• Travel and passport considerations

Court attendance

If you file a joint application (with your former spouse), you generally do not need to attend court for the divorce hearing.

If you file a sole application (by yourself), you do not need to attend court if there are no children under 18 from the relationship, or you have a lawyer appearing for you.

However, you will need to go to court if:

• You file a sole application AND there are children under 18 from the relationship, or
• There are specific circumstances the court needs to discuss with you

It’s important to note that this applies only to the divorce itself if there are disputes about property settlement or parenting arrangements, these are separate matters that may require court attendance regardless of how the divorce is processed.

Family Violence

Family violence is taken seriously in the Australian family law system. The courts provide immediate protection through intervention orders (also called domestic violence orders or apprehended violence orders). When family violence is involved, the court system offers several protections:

• Priority handling of cases involving family violence
• Special provisions for giving evidence (separate rooms or video links)
• Court support services for affected parties
• Consideration of violence history in property and parenting decisions
• Mandatory reporting requirements for child abuse or risk of harm

Legal Support

The family law system offers comprehensive support through Family Relationship Centres for mediation, legal aid for eligible applicants, and various court support services. Family consultants and child experts are available when needed to assist in complex cases. These services ensure that all parties can access the support they need throughout the legal process.