Family Law

The Australian Constitution gives the Federal Government the exclusive power to make laws in relation to marriage. Most states and territories also give the Federal Government the power to make laws for de facto partners (the only hold out is Western Australia, which has its own family law system). As a result, most Australian families fall under a single, federal family law system.

Federal Circuit and Family Court of Australia

This family law system sets out the process to resolve conflicts about two main issues: property and parenting. If a dispute about one of these issues cannot be resolved outside the courtroom, the Federal Circuit and Family Court of Australia will hear from both parties and make orders based on the law.

The good news is that the family law system is designed to be fair and equitable. Parenting laws focus on the best interests of the children, and property law aims to help separating couples reach a fair property division.

Property

Family law sets out the procedure for dividing property after a separation. All of the couple’s assets are included in a property pool, including assets that are owned individually by each person. The law supplies a formula for how to fairly divide this property pool. It is important to know that “fair” does not necessarily mean “equal”.

There is no automatic 50/50 divide of joint property under Australian family law. Instead, the law looks at what each person:

brought to the relationship;
contributed during the relationship; and
will need in the future.

Paid work and domestic contributions are given similar value in this system.

Parenting

Family law starts from the premise that a child should have an active relationship with both parents. Because both parents have “equal and shared” responsibility for their child, equal time might be spent with each parent. Even if equal parenting time is not practical, it is still expected that a child will spend significant time with each parent.

The family law system presumes that it is in the child’s interest to have some contact with each parent, even in difficult circumstance, such as where there is substance abuse or a history of domestic violence. In those challenging circumstances, contact might have to be supervised, or arranged via the telephone or mail.

Fundamentally, Australian law is very reluctant to sever all contact between a child and their parent. It is important to understand that this reluctance has nothing to do with “parental rights” (which is not a concept in Australian law). Rather, research suggests that a child benefits from knowing their parents, even if their parents have challenges.

Private Agreements

Separating couples can choose to avoid the family law system and make a private agreement about parenting or property. For instance, it is quite common for amicable ex-partners to agree a childcare schedule that best suits their needs, or to agree a private property division.

Unfortunately, some people who try to reach a private arrangement find themselves agreeing to an unfair outcome. This is often the case when the former relationship had dysfunctional power dynamics and is especially prevalent when there was domestic or family violence in the relationship. We would always recommend that you at least formalise a private agreement by putting it in writing. In addition, any agreement should be consistent with the Australian family law system so it can be enforced through the Federal Circuit and Family Court of Australia.

Gary March is an experienced, empathetic, and pragmatic family lawyer. Our approach is solution focused – we work with clients to deliver outcomes that align with their needs and the situation at hand. We have worked with a wide cross section of the community and understand and appreciate the complexity involved in a range of family law cases.

If you need assistance, contact one of our lawyers at [email protected] or call 03 9531 8628 for expert legal advice.