What is included under Family Law?

Written by senior family lawyer Rebecca Lucas

The family law system in Australia exists to help people navigate and successfully resolve the legal aspects of family relationship issues and the Family Law Act 1975 (Cth) is the main source of Australian law regulating family law matters. In 2006, family law reforms introduced new shared parenting laws to encourage greater involvement of both separated parents in their children's lives after separation (provided that the children are protected from family violence or child abuse). Further reforms have taken place since that time and in May 2024 the Family Law Act will again be amended. The amendments to the Act focus on the safety and wellbeing of families and children.

Property settlements are the legal processes that deal with the division of assets and liabilities between separating or divorcing parties. The Act provides a legislative framework for property settlements that aims to achieve a fair and equitable distribution of property owned by the parties, including real estate, investments, superannuation, businesses, and personal belongings between them.

The best interests of the children are a priority under the Family Law Act, aiming to ensure their safety, wellbeing, and protection amidst family law disputes. Under this legislation, children services encompass various aspects such as parenting arrangements, visitation (commonly referred to as ‘time spending’), child support, and protection from abuse and/or neglect.

Parenting issues refer to conflicts or disputes that arise between parents regarding the care, welfare, development, final support and living arrangements, of their children. Such disputes are commonly about who has the decision-making power concerning issues relating to their children’s living arrangements, education, health, and child support. The Family Law Act's primary focus is that in resolving these disputes the best interests of the children are paramount.

Domestic violence refers to any form of abusive behaviour or conduct that occurs between individuals within a domestic or family relationship. It includes physical, emotional, psychological, financial, and sexual abuse, as well as coercive control. Section 4AB of the Family Law Act defines family violence.

A Binding Financial Agreement (BFA) is an agreement between parties to a relationship or marriage and is compliant with the requirements as set out in the Family Law Act. Binding Financial Agreements can be entered into before the commencement of the relationship (prenuptial agreement), during the period of the relationship, or even after the relationship has broken down (postnuptial agreement). Binding Financial Agreements assist with the division of property between the parties following a separation and/or spousal maintenance.

The Federal Circuit and Family Court of Australia website (and other similar platforms) serve as a valuable resource for individuals seeking to comprehend the legal processes and principles pertaining to specific family law issues. However, comprehending legislation, case law, and court regulations and rules, is not as straightforward as it may appear.

The complexity of family law arises from individual differences and variations that exist within each family. Each family possesses distinct needs and circumstances, which require a tailored approach and consideration in each case. Thus, seeking advice from an experienced and qualified family lawyer is crucial to understanding how the law and previous cases apply to your unique circumstances.

Also, by not engaging a family lawyer you are more open to the risks associated with adverse costs orders, the difficulty with drafting and filing legal documents, as well as poor negotiation due to inexperience and emotional state. By having an experienced family lawyer advocating for you, you can make informed decisions and obtain a fair and reasonable outcome in your matter.

Separation

Separation can take many forms, ranging from a few months apart to reconsidering the relationship objectives, to a more extended period where it becomes clear that the partnership has ended. You can seek advice from a family lawyer at Williams Legal at any stage of this process, or even before the separation occurs so that you have a clear understanding of the process.

You do not have to live separately during a separation, and it is common nowadays for parties to remain living together as they are not able to live apart due to financial or other reasons. However, you can still be separated and living under the same roof.

If you are married, then you are considered spouses. If you are not married, then you may be in a de facto relationship. A de facto relationship is defined as living together on a genuine domestic basis for 2 years or more, or have a child with one another, or one of the parties of the de facto relationship made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c) of the Family Law Act.

There are some differences between how the Family Law Act deals with parties to a marriage or de facto relationship, however, their rights and obligations under the Act are largely similar. Whether you were a party to a marriage or a de facto relationship, does impact your situation if your partner dies without a will or if you wish to discontinue the relationship.

Children

Custody is a term most people are familiar with. However, it is outdated and is no longer used within the family law context.

In 2006, The Family Law Amendment (Shared Parental Responsibility) Act modified family law to introduce the term “parental responsibility.” Parental responsibility is all the duties, powers, responsibilities, and authority which, by law, parents have concerning their child.

There is presently a presumption that parents of a child have equal shared responsibility for their children, regardless of where a child is living and how much time they spend with either of their parents. The Act intended to place the rights of the child at the focus of family separation and put the responsibility onto each parent for making significant decisions regarding their education, health, religion, and more.

However, some circumstances can be challenging to manage, and this is why it is so important to ensure you have a family lawyer on your side to advocate for you. This ensures you are fully informed about your rights and responsibilities during this time, as well as the rights and wellbeing of any children involved.

Once an agreement is reached, parents can create a parenting plan that outlines the agreed upon arrangements for their child. When unresolved disputes arise, the matter may need to be dealt with in court.

The Court can make changes, which can modify parental responsibility depending upon the circumstances, which may mean one parent has sole parental responsibility for a child. If a relative or another person has the care of a child, then they can apply for an order to have parental responsibility for the child.

Divorce / Annulments

In Australia, our "no-fault" divorce system means you do not have to prove that one party is at fault for the marriage breakdown. You need to prove that separation has existed for at least 12 months before you can make an application for divorce.

Applying for a divorce is done through the Federal Circuit and Family Law Court of Australia, and it can be done with or without a family lawyer. One person may apply for the divorce, or it can be completed as joint applicants, indicating both parties acknowledge the end of the marriage. You or your spouse must be an Australian citizen or live in Australia to apply for a divorce.

The divorce occurs when a court has no objections to the application, and a divorce order is issued bringing the legal end to the marriage.

An annulment is a legal acknowledgment that a marriage was invalid. The marriage is dissolved and treated as if the marriage never existed. An annulment only applies in specific circumstances, such as where one person is already married or where one person did not give proper consent.

Property Settlements

Property settlements involve more than simply property. They include all assets, liabilities, superannuation, and other financial resources such as shares or investments the parties have an interest. Such property includes assets that have been acquired throughout a relationship, and may also encompass assets obtained before the relationship occurred.

The Family Law Act entails the laws and principles for dividing property. However, this does not mean that the assets will be divided equally. The court takes a position of a 'just and equitable' division of property based on several factors, including the contributions of each party to the relationship. These can be financial or unpaid work like child-rearing, domestic cleaning, and household management. Superannuation is also considered property and is especially important to divide where one party has not been in paid employment due to caring responsibilities for children for some or all the duration of the relationship.

Full financial disclosure must occur during property settlement negotiations where court proceedings occur.

Couples who have entered into Binding Financial Agreements, also known as pre-nuptial or post-nuptial agreements, can predetermine how property will be divided in the event of separation.

Parties to a marriage have 12 months from the date of divorce to bring any application for property settlement or spousal maintenance in the Federal Circuit and Family Court of Australia. Parties to a de facto relationship have 2 years from the date of separation to bring such claims in the Court.

Spousal Maintenance

Where one party is genuinely unable to support themselves financially after the relationship breakdown, the other party has the financial obligation to support them provided they have the financial capacity to do so. Applications can be made to the court for financial support to be paid by your spouse as either a lump sum or regularly such as fortnightly.

Multiple criteria apply when determining a claim for spousal maintenance. The court will consider the income of both parties, their earning capacity, the duration of the relationship, caring responsibilities for any children, and the age and health of both people.

Binding Financial Agreements

Also known as pre-nuptial or post-nuptial agreements, these are legal documents that outline how property and assets will be divided in the event of separation. The agreement must have been entered into voluntarily without duress or undue pressure on either party. For a Binding Financial Agreement to be considered valid, it must be transparent with full financial disclosure being exchanged between the parties. Where this has not occurred, the agreement may be invalid and unenforceable.

It is a legal requirement that before entering into a Binding Financial Agreement, both parties are to obtain independent legal advice as to the effect of the agreement and the advantages and disadvantages of the agreement at the time of entering into it.

Child Support and Child Support Agreements

Child support arrangements are governed by Australia's Child Support Agency (CSA). You can make a private arrangement for support and such private agreements can be recorded in a Binding or Limited Child Support Agreement and registered with the Registrar of Child Support. Where parents cannot agree, the CSA apply a formula to determine the amount of financial support required in each circumstance.

Child support ensures financial well-being for the children after their parents' separation or divorce. The formula considers the income of each parent, the number of children from the relationship, how much care each parent provides, and the overall cost of raising children.

Where a parent does not meet child support obligations as determined by the CSA, various enforcement actions may begin, including wage garnishing, tax refund interception, and legal proceedings. A family lawyer will help you understand your rights and obligations, plus assist with negotiations during the divorce process.

Adult Child Maintenance

When a child of a relationship is over 18 but there are extenuating circumstances, such as needing to finish their education or they have a disability and are still dependent on their parents, adult child maintenance addresses the financial support needs.

This results in the opportunities for the child not suffering due to the breakdown of the relationship. Factors considered will be the financial capacity of the parents and the ability of the dependent to assist in their support.

Parentage

The most straightforward method of establishing parentage is when a person is a biological parent, and when a child is born to a heterosexual couple in a marriage or relationship, the male is presumed by law to be the father of the child. If in dispute, this can be determined via genetic testing.

Establishing parentage where a biological link does not exist is essential for legal rights and responsibilities, such as parenting issues, child support, and inheritance. Legal processes can still establish parentage in de facto situations where the relationship has not been registered.

In cases of adoption, the parentage of a child is legally transferred from the biological parents to the adoptive parents.

The law surrounding parentage can be challenging to navigate, and where it is in dispute, you should contact a Williams family lawyer and obtain tailored legal advice.

Williams’ Family Lawyers are here to help

When you need advice regarding family law, you can quickly feel out of your depth as many aspects of the legal system are highly detailed, and technical, and therefore, can be challenging to grasp. Especially during an already stressful time.

We serve as an invaluable resource in guiding you through and on how to enhance your chances of achieving a favourable outcome, especially regarding the practical measures that individuals can undertake to improve their prospects. Particularly in contentious child custody disputes and complex property settlements.

The Williams Legal team of family lawyers possess extensive experience working within the court system and the application of family law. We will provide you with award-winning representation in proceedings within the Federal Circuit and Family Court of Australia, along with any related court-ordered events, as well as offer you legal representation for alternative approaches such as Collaborative Law, Private Mediation, and Family Dispute Resolution Conferences (FDRs).

Get in touch with us today so we can begin assisting you towards a better outcome.