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What is family law?

Once you have separated, family law is suddenly very relevant to you. What is family law? How does the Australian family law system work? What legal issues does it cover? This blog provides a simple overview of the Australian family law system and lists the common legal issues Australian families encounter.

The Courts

At present there are three main Family Law Courts in Australia:

1. the Family Court of Western Australia, and for the rest of Australia:

2. the Federal Circuit Court of Australia; and

3. the Family Court of Australia*.

Federal Circuit Court and Family Court registries (offices) are located all over Australia. Most cases proceed through the Federal Circuit Court. More serious or complex cases are usually dealt with in the Family Court.

The focus in the family law system is on resolving family law issues outside of court through mediation, negotiation, collaborative practise and other settlement methods. However, in some cases Family Law Court proceedings are necessary or unavoidable.

Family Law Court proceedings are commenced by the filing of an application, affidavit (a court statement) and other necessary documentation in the relevant Court. The application sets out the interim (temporary) and final orders a party seeks and the affidavit provides supporting evidence. The respondent to the application, usually the other parent or former partner, files a response, affidavit and other necessary documentation in reply.

The application may concern one or more family law issues, commonly, parenting, property and spousal maintenance. Other legal issues may be addressed as well, including how the parties’ legal fees are to be paid.

After the filing of the application the court process flows on from there with various court events leading to a final hearing or trial for the small percentage of cases that do not resolve by consent along the way. Very few cases require a final determination.

Family law issues may be resolved by agreement (without the court needing to be involved) and formalised according to law. An experienced family lawyer will be familiar with the legal requirements for formalising each type of agreement.

The legislation

The Family Law Act 1975 (Cth) (‘The Act’) is federal legislation covering family law issues in Australia, with the exception of Western Australia which has its own, largely similar legislation, the Family Court Act 1997 (WA)**. Thus, the law across the states and territories of Australia regarding divorce, de facto and matrimonial property division, parenting arrangements and spousal maintenance, (with the exception of a few differences in the Western Australian system), is the same.

There is separate legislation covering issues such as child support, domestic violence and child protection.

Common family law issues

Family law settlements may involve a wide range of legal issues. The legal issues differ from family to family.

However, the most common family law issues Australian families encounter are:

1. Divorce;

2. De facto or matrimonial property division;

3. Parenting arrangements & children’s issues;

4. Child support;

5. Spousal maintenance;

6. Domestic & family violence; and

7. to a lesser extent – Child protection.

Nothing in this article is legal advice particular to your circumstances. You should obtain legal advice from an experienced family lawyer as to your particular circumstances.

To access my 6 page legal guide “What is family law and how might it apply to me?” subscribe to my email community by using the “subscribe now” function below. That publication outlines the 7 most common legal issues and explains how the Australian family law system operates in more detail. I look forward to connecting with you.

Notes to this blog:

* Note that in May 2018 the Attorney-General of Australia, Christian Porter, announced that, from early 2019, the Family Court and the Federal Circuit Court will be combined into a new Court known as the Federal Circuit and Family Court of Australia (‘FCFCA’). This announcement was made whilst a significant review into the Australian Family Law System is still underway. If this Court is created it is expected that initially it will comprise two divisions; 1 – a Family Court trial division and 2 – the existing Federal Circuit Court.

** References in this publication will be to the Family Law Act 1975 (Cth) and not the Western Australian family law system, unless otherwise stated.

  • Best Wishes,
  • Julie Hodge The Family Lawyer
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