HOMEFamily Law in Australia
FAMILY LAW MATTERS
Nofault divorce PUBLISHED: 03/05/2016
The Family Law Act 1975 established the principle of no-fault divorce in Australian law. This means that a court does not consider which partner was at fault in the marriage breakdown. The only ground for divorce is the irretrievable breakdown of the relationship, demonstrated by 12 months of separation.
Parenting cases - the best interest of the child PUBLISHED: 19/10/2018
The Attorney-General’s Department administer the Family Law Act 1975 .
When a court makes a parenting order, the Family Law Act requires it to regard the best interests of the child as the most important consideration. Parents are encouraged to use this principle when making parenting plans.
The Family Law Act focuses on the rights of children and the responsibilities that each parent has towards their children, rather than on parental rights. The Act aims to ensure that children can enjoy a meaningful relationship with each of their parents, and are protected from harm.
The Family Law Act makes clear that:
both parents are responsible for the care and welfare of their children until the children reach 18, and
there is a presumption that arrangements which involve shared responsibilities and cooperation between the parents are in the best interests of the child.
For more information about the best interests of the child, equal shared parental responsibility and family dispute resolution, see the Children and family law section on the Attorney-General’s website .
Financial cases PUBLISHED: 03/05/2016
The Court cannot make orders for the alteration of property interests unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
The general principles for a court to settle financial disputes under the Family Law Act 1975 are based on:
Working out your assets and liabilities; that is, what you've got (including superannuation) and what you owe; and what they are worth.
Looking at the contributions made by both parties during the marriage or relationship including:
direct financial contributions to the acquisition, conservation or improvement of any of the property, such as wage and salary earnings
indirect financial contributions to the acquisition, conservation or improvement of any of the property, such as gifts and inheritance from families
direct and indirect non-financial contributions to the acquisition, conservation or improvement of any of the property.
contributions to the welfare of the family, including any contribution made in the capacity as parent and homemaker
The future needs of the parties having regard to things such as age, health, care of children, income and financial resources of the parties
You can read the law which outlines these factors in Section 75 and Section 79 and Part VIIIA of the Family Law Act 1975 (if you were married) or in Section 90SF and Section 90SM and Part VIIIAB of the Family Law Act 1975 (if you were in a de facto relationship).
In addition, the Court, as far as practicable, is to make orders which will finalise the financial relationship between the parties (Section 81 of the Family Law Act).
The Law
The Family Law Act 1975 (Commonwealth)
The Family Law Act 1975 is the main law on matters involving divorce, property settlement after marriage breakdown or de facto relationship breakdown, spouse maintenance for a party to a marriage, de facto partner maintenance for a party to a de facto relationship that has broken down and issues relating to parenting arrangements after separation. The courts that exercise the jurisdiction under the Family Law Act are the Family Court of Australia and the Federal Circuit Court of Australia.
If you reside in Western Australia and/or your case may occur in Western Australia, the main law is found in the Family Court Act 1997 (Western Australia) and the Family Legislation Amendment Act 2006 (Western Australia). The Court set up under that Act is the Family Court of Western Australia. For more information about the law and practices and procedures in Western Australia go to www.familycourt.wa.gov.au , or contact your local family court registry in Western Australia.
Rules, Practice Directions and Guidelines
In the Family Law Act, the Parliament delegated authority to the Chief Justice of the Family Court to make rules, regulations and by-laws connected with the Act. These are known as the Family Law Rules 2004 . The Rules deal with the practice and procedure of the Court and apply to all proceedings under the Family Law Act in the Family Court.
The Chief Justice of the Family Court also has the authority to make practice directions and guidelines about the procedures of the Family Court. These are intended to inform everyone who uses the Court about the way cases move through the Court.
To view the Family Court Rules and Practice Directions see Rules and Legislation.
If your case will take place in Western Australia, for more information about the Rules, Practice Directions and Guidelines that will apply go to Family Court of Western Australia , or contact your local family court registry in Western Australia.
Child Support Acts 1988-89 (Commonwealth)
The Child Support (Registration and Collection) Act 1988 and the Child Support (Assessment) Act 1989 established the Child Support Agency. These Acts cover child support for:
children who were born on or after 1 October 1989, and
children whose parents separated after 1 October 1989, and
children who had a sibling (brother or sister) born after 1 October 1989.
Under these Acts, financial support for children is called child support. You apply to the Child Support Agency for child support. For information on how to change the child support assessment, contact Services Australia .
Case law
Case law refers to previous decisions, or judgments, made about family law by judicial officers. In the legal profession, these are known as precedents. These decisions become part of the family law which applies in Australia.
International law
Australia is part of an international agreement called the Hague Convention, which is an agreement about international child abduction. One of the main aims of the Hague Convention is to promptly return children wrongly removed from another convention country. Australia is a convention country but not all countries are. A complete list of convention countries can be found in Schedule 2 of the Family Law (Child Abduction Convention) Regulations 1986 .
For more information on the Hague Convention, see the fact sheet Family Dispute Resolution (Hague Matters).
