You and family law

The family law system can seem daunting and confusing. With the right information and help, and by focusing on what is best for your children, you will be more likely to be able to make arrangements that suit you and your children.

You may be thinking in terms of who will have custody of the children, and who will have access to them. Words like custody, residence, access and contact are well-known, but are no longer used in the Australian family law system. Instead, the law talks about who children will live with, and spend time with.

Separated families are encouraged to agree on arrangements for children and property themselves without going to court. Many people manage to resolve family law disputes using alternatives to court, either by themselves or with assistance from mediators and Family Dispute Resolution providers.

Going to court is costly, time consuming, and may not result in a decision that you agree with. There are different pathways that separating families can take, depending on their needs and personal situations. 

The law

The Family Law Act 1975 is the main source of Australian family law. It covers what happens when there is a dispute about the care of children or dividing property after the end of a relationship. The Family Law Act applies to all children. It applies whether you were married, in a de facto relationship with the other parent, and if you were never in a formal relationship. It applies to all property owned by either of the people in a married or de facto relationship. 

If you are in Western Australia, there are two main laws on matters involving family law. The Family Law Act covers married couples who want to divorce and make arrangements for children and property. The Family Court Act 1997 covers de facto couples who want to separate and make arrangements for children and property.

Your rights and responsibilities

Children

The law focuses on the rights of the children and the responsibilities that each parent has towards their children. The law does not consider parental rights. 

The law does not look at whose fault it is that the relationship broke down. The main focus is what is best for your children. Unless a court orders otherwise, you will continue to share parental responsibility for your children, even if you are not in a relationship with their other parent. Parents continue to be responsible for the care, wellbeing and financial upkeep of their children.

Children have the right to a relationship with each parent, and other significant people in their lives, as long as they are safe.

You can access a local service to support with future arrangements for the children.

Property

When dividing property, the law looks at everything the couple owns, what they earn, and what debts they have, and divides these according to what it considers to be fair. It is not about who is right or who is wrong. It is about making arrangements for the future.

In a practical sense, you are responsible for:

  • making sure you attend any appointments or hearings relating to your family law matter
  • being prepared and informed, by researching and/or obtaining legal advice, and
  • following any court orders.

The role of lawyers

Speaking to a lawyer can be helpful. Making decisions after a relationship breakdown can be difficult. Getting legal advice can help you understand what choices you have.

Talking to a lawyer does not mean that you will have to go to court, although lawyers can help you do this if you need to.

The family law courts

If you do need to attend court, there are three family law courts in Australia. They are:

Magistrates courts in the states and territories sometimes deal with simple family law matters.

Most family law matters are heard in the Federal Circuit Court, however which court you will go to depends on where you live and how complex your family law matter is. 

Ahmed and Aisha have decided to separate. Ahmed is worried that he will lose custody of his children, and only have limited contact with them. When Ahmed finds out more about family law, he realises that both he and Aisha have parental responsibility, and may continue to share the responsibility of caring for their children. Ahmed and Aisha start to think about what would be best for their children, and work out a plan for their care. The children are able to spend time with both parents.

Related links

Family Relationship Advice Line 1800 050 321

Family Law National Enquiry Centre 1300 352 000 (for family courts procedures, no legal advice)

Next steps

Go to family mediation or Family Dispute Resolution.

Seek legal advice.

Make a parenting agreement.

Resolve money and property.