Our team of expert family lawyers in Sydney will help you through this tough period and ensure you and your loved ones get back on track with the right ongoing support and security. Family Law disputes are complex and highly emotional.They can have a lasting impact on children and young people.
Family Law introduction
In Australia, Family Law is dealt with at the Commonwealth level through the Family Law Act 1975 (Cth). Each state in Australia complies with the Family Law Act, however, the Family Law system is slightly different in Western Australia. Western Australia operates differently because it has not referred its Family Law powers to the Commonwealth. This means that married couples are dealt with under the Commonwealth system, however, de facto couples are dealt with under the State’s system. This impacts on property settlement and parenting matters for de facto couples. The Family Court of Western Australia is the only court that deals with Family Law in Western Australia. There are three components to Family Law:
1 Separation
2 Parenting arrangements
3 Property settlement
Before the courts will consider each component, they like to see that parties to court proceedings have attempted to resolve their issues. This is usually achieved through alternative dispute resolution such as mediation.
Family court matters are currently heard in the:
Family Court of Australia (for less complex matters), and
Federal Circuit Court of Australia (for more complex matters e.g. family trusts, etc).
These courts currently share an online service portal where your documents can be lodged and court fees can be paid.
The Attorney-Generals Department recently issued a media release announcing its intention to merge the two courts. The aim is for Family Law matters to be heard in the Federal Circuit Court of Australia.
There are a number of support services available for families experiencing breakdown e.g. counselling, domestic violence assistance, referral to mediation services, etc. Talk to our team to find out what services are available in your area.
Relationship breakdown and Separation
There are two types of relationships, marriages and de facto relationships.
Marriage
No-fault divorce was introduced by the Family Law Act 1975 (Cth). That means you no longer need to prove that someone was at fault for the relationship breakdown e.g. through an extramarital affair.
If your marriage breaks down in less than two years, the court will require you to complete mediation or marriage counselling before it will issue a divorce. Family violence may be an exception to this.
You must prove that you have been separated for at least 12 months before you can apply for a divorce. This can be proven through separate utility bills, change of licence address, etc. It may be possible to separate from your spouse while still living in the same house. This can be proven through a division in the utilities, affidavits by friends or family who can attest to the separation, etc. Some people with children often separate but continue to live together to prevent causing distress to their children.
Once you have been separated for 12 months, you can file an Application to Divorce. You can apply for a divorce on your own, or make a joint application.
If you do not have children and you do not require property settlement, it is a straightforward process. If you have children under the age of 18, you will be required to attend a hearing.
De facto relationship
You are considered to be in a de facto relationship if you have lived with your partner in a domestic capacity for more than two years.
Unlike marriage, if you separate from your de facto partner, you do not need to apply to the courts for an order to separate.
If you have children or property, including debt, you may need to apply for court orders.
Spousal maintenance
Spousal maintenance is paid by one partner to another in the event they are unable to meet their own reasonable expenses from their personal income or assets.
There are two types of spousal maintenance:
1 Spouse maintenance – you must apply within 12 months of your divorce being granted
2 De facto partner maintenance – you must apply within two years of the breakdown of your relationship
The court considers a person’s:
Age and health
Income, property and financial resources
Ability to work
Suitable standard of living
If the marriage has affected your ability to earn an income
Family Dispute Resolution (Mediation)
Mediation is a dispute resolution process that assists parties to come to a mutual agreement to resolve their disputes. It is the recommended first step during a relationship breakdown for both parenting and property disputes. Many people find mediation successful because it gives them an opportunity to be heard and apply solutions they are happy with.
If you have not attempted mediation prior to applying to the courts for orders, the court has the discretion to make a referral to mediation before it will hear your matter. If the court hears your matter, you may not like its solution to your problem.
A mediator can issue a section 60I certificate stating that mediation was not successful or appropriate and you can apply to the courts for orders. Mediation may be unsuccessful because:
The practitioner (mediator) considered it inappropriate e.g. domestic violence
One or both of you refuses to participate
You both made a genuine attempt to resolve your dispute but could not reach an agreement
One or both of you failed to make a genuine attempt to resolve your dispute
You both attempted to resolve your dispute, however, the practitioner (mediator) decided it was no longer appropriate to continue.
Mediation is usually conducted without your lawyer present. However, there may times where it is necessary to have your lawyer present (legally assisted mediation). The mediator has the discretion to decide whether mediation will require your lawyer to attend.
Disclaimer
The above is general legal information and should not be considered legal advice. You should speak with one of our family lawyers for legal advice tailored to your specific legal matter. The courts deal with matters on a case by case basis.
