Family Law and the Family Law Court

Family Law and the Family Law Court

Family Law is a complex area of law requiring expert advice and assistance.

“No Fault” Divorce

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.

Financial Cases

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 the acquisition, conservation or improvement of any of the property, such as wage and salary earnings
  • indirect financial contributions to the 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 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 VIIIAB of the Family Law Act 1975 (if you were married) or in Section 90SFand 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).

Emphasis on resolving disputes

Where it is appropriate, parties are encouraged to reach agreements without a court hearing.

Parenting cases – the best interest of the child

When a court is making a parenting order, the Family Law Act 1975 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 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.

See Section 61DA of the Act for more detail.

Two tiers of consideration

In deciding what is in the best interest of a child, the Act requires a court to take into account two tiers of considerations – primary considerations and additional considerations:

Primary considerations:

• The benefit to children of having a meaningful relationship with both parents.
• The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
• The Court is required to give greater weight to the consideration of the need to protect children from harm.

Additional considerations:

• The child’s views and factors that might affect those views, such as the child’s maturity and level of understanding.
• The child’s relationship with each parent and other people, including grandparents and other relatives.
• The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent.
• The likely effect on the child of changed circumstances, including separation from a parent or person with whom the child has been living, including a grandparent or other relatives.
• The practical difficulty and expense of a child spending time with and communicating with a parent.
• Each parent’s ability (and that of any other person) to provide for the child’s needs.
• The maturity, sex, lifestyle and background of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant.
• The right of an Aboriginal and Torres Strait Islander child to enjoy his or her culture and the impact a proposed parenting order may have on that right.
• The attitude of each parent to the child and to the responsibilities of parenthood.
• Any family violence involving the child or a member of the child’s family.
• Any family violence order that applies to the child or a member of the child’s family, if:
  • the order is a final order, or
  • the making of the order was contested by a person.
• Whether it would be preferable to make the order that would be least likely to lead to  further court applications and hearings in relation to the child.
• Any other fact or circumstance that the Court thinks is relevant.

A court must consider the extent to which each parent has or has not previously met their parental responsibilities, in particular:

• taken the opportunity to:
  • participate in decision-making about major long-term issues about the child
  • spend time with the child.
• communicate with the child, and has:
  • met their obligations to maintain the child, and
  • facilitated (or not) the other parent’s involvement in these aspects of the child’s life.

If the child’s parents have separated, a court must consider events and circumstances since the separation.