Family Law

The Family Law Act 1975 is commonwealth legislation that governs most family law matters across Australia, including in New South Wales. This Act sets out the legal framework for issues such as marriage, divorce, property settlements, parenting arrangements, and child support. De facto couples may also access remedies under family law legislation and, in some cases, may need to prove that they were in a de facto relationship before doing so. Various factors will be considered to determine whether an unmarried couple were in a de facto relationship, including the length and nature of the relationship, financial dependence or interdependence, the care and support of children, and whether the relationship was registered under state law.

Property Settlements

Property settlement is the process of dividing assets and liabilities between separating partners (whether the couple were married or in a de facto relationship). It involves determining the pooled value of various assets, property, financial resources and debts, and reaching an agreement on how they will be divided.

Factors considered during a property settlement include the length of the marriage, the contributions made by the parties (financial and non-financial), and their future needs. The goal is to achieve a fair and equitable distribution of assets, although the definition of “fair” may vary and need not necessarily result in an equal split. Superannuation funds also form part of the property pool and may be divided in a property settlement via a superannuation splitting order.

Former spouses and partners may negotiate the division of property themselves or seek assistance from mediators or lawyers. However, it is generally advisable to consult with a family lawyer to understand your rights and options regarding the division of your property after a relationship breaks down. If an agreement is reached, it can be formalised in a legally binding document.

If an agreement cannot be reached on how to divide property, the matter may proceed through the Federal Circuit and Family Court of Australia for determination. This, however, is generally a last resort and most couples will be able to finalise their property settlement without the intervention of a court.

Care of Children

Under family law legislation, the best interests of the child are the paramount consideration when determining parenting arrangements. In cases involving family violence or child abuse, the court prioritises the safety of the child and will make orders to protect them.

It is important to know that the starting point is that both parents have equal and shared parental responsibility for their children, regardless of their living arrangements or relationship status. This means both parents should make decisions about major long-term issues affecting the child’s welfare, such as education, health, and religion. Shared parental responsibility does not necessarily mean that the children will spend equal time with each parent. Living arrangements are determined in consideration of a range of factors.

Parents are encouraged to create a written parenting plan that outlines the agreed-upon arrangements for their children. The plan covers matters such as living arrangements, time spent with each parent, and decision-making responsibilities. If parents reach an agreement, they can apply to the Federal Circuit and Family Court of Australia for consent orders, which formalise the parenting arrangements. These orders have the same effect as if they were made by a judicial officer after a court hearing.

If parents cannot reach an agreement, they may seek court intervention. The court will consider the child’s best interests and may make orders regarding parental responsibility, living arrangements, and other matters related to the child’s welfare. Before going to court, parents are required to attempt mediation or alternative dispute resolution services to resolve any disagreements regarding parenting arrangements.

Family Violence

Family violence in Australia encompasses a range of behaviours used to gain power and control over family members. It can include physical, sexual, emotional, and financial abuse, as well as stalking, harassment, and coercive control.

Family violence is widespread in Australia, affecting individuals of all ages, genders, and backgrounds. According to national surveys, approximately one in six women and one in sixteen men have experienced physical or sexual violence from a current or former partner.

Australian laws recognise family violence as a crime and provide legal protections for victims. Each state and territory have their own legislation that defines and addresses family violence, with provisions for intervention orders, safety plans, and criminal charges.

If you or someone you know is experiencing family violence in Australia, it is essential to seek help and support. Contacting local helplines or domestic violence organisations can provide guidance and assistance in accessing the appropriate resources for your situation. If you are in immediate danger, you should contact your local police.

Family law matters are some of the most challenging and complex legal issues our clients face. We can explain your legal rights and help you negotiate a fair division of property and make parenting arrangements that are in your family’s best interests.

If you need help, contact [email protected] or call 0401 451 322 for expert legal advice.