Understanding the family law system in Australia
Being involved in any kind of legal matter causes stress. When it’s a family law matter, it usually involves other stressful life events, like the breakdown of a relationship and the subsequent matters that need to be resolved.
Whether it’s the first time you’ve been involved in any kind of legal matter or even if you’ve had a bit of experience in this area, being involved in a family law matter can leave you wondering where you start.
To help you, we’ve put together some information about the family law system in Australia and how to navigate it. Our aim is to provide you with information about the different types of matters you may need to resolve through the family law system, as well as how matters can be resolved and the role of the Court in Australia.
What is the family law system in Australia and what is its purpose?
The family law system in Australia provides the legislation and guidelines of how family-related disputes and issues should be resolved. The family law system’s key legislation is the Family Law Act 1975 (Cth). Family law matters can be about a wide range of things, but commonly they relate to issues that arise when the family relationship has broken down.
The family law system’s legislative framework has been designed to provide people with the opportunity to resolve matters together or privately. It does this by offering guidelines about the factors that should be considered when making decisions. This allows people to come to agreements that work for their unique situations.
While the system does allow for people to resolve matters themselves, it also provides systems and resources, like the Federal Circuit and Family Court of Australia, for those who are unable to do so. Matters may not be able to be resolved between the parties privately due to an inability to come to any kind of agreement or because it isn’t safe to do so without legal intervention.
What kinds of matters are handled by the family law system?
The family law system helps to resolve a wide range of issues and disputes that can impact the family, and as we mentioned above, many of these are due to the breakdown of the family relationship.
Some of the most common matters that fall under family law include:
- Divorce: This involves not only the legal process of ending the marriage – the application for divorce – but also, the matters that arise due to a divorce, such as property settlements (division of assets), and parenting and custody matters.
- De facto Separation: Like a divorce, the end of a de facto relationship can also mean that matters like property settlements and parenting/custody matters need to be resolved too.
- Property settlements: when a relationship, whether a marriage or de facto relationship, working out how your assets will be divided is an important process. Assets (and liabilities) in question can be real estate, vehicles, superannuation, investments, and many other items. For some couples they may be able to come to an agreement easily about parenting matters but struggle to work out property related matters.
- Parenting matters: when a marriage or de facto relationship ends and the former spouses have children under the age of 18, they must work out satisfactory parenting arrangements. This includes working out where the children will live and how they will spend time with each parent.
- Financial matters: Outside of working out a property settlement, other financial matters may need to be resolved, such as financial support for children and/or spouses. Parents have a duty to provide financial support for their children until they are legal adults. Spouses may be entitled to financial support too, known as spousal maintenance, however this is not an automatic entitlement.
- Family and Domestic Violence: These matters may arise after the breakdown of a relationship or while a couple is still together. The family law system provides protective options for those affected by domestic and family violence, such as protection orders.
Other matters that fall under the family law system include those related to the facilitation of adoption and surrogacy and also same-sex relationship matters, such as marriage, divorce, and parenting matters too.
How can family law matters be resolved?
Many people assume that when they are involved in a legal matter of any type, including a family law matter, that they will need to go to Court. However, in family law matter matters, the Australian family law system allows and actually encourages people to resolve matters themselves, if it is safe to do so, rather than going to Court.
Family law matters can be resolved in a few different ways, as outlined below:
Sorting out family law matters can often occur privately between the parties. Usually this involves the parties coming to an agreement between them about how they will parent, how they will divide their assets and any other matters that may have arisen.
When they have come to an agreement the parties often document it, for example, with parenting arrangements, these can be documented in a parenting plan or through parenting orders.
The agreements made privately can be informal agreements or they can be made into legally binding ones. As family lawyers, we recommend that parties formalise their agreements and make them legally binding. Agreements can be made legally binding through consent orders or binding financial agreements. If you wish to formalise an agreement, we also recommend seeking legal advice before doing so.
Represented or unrepresented negotiations
Coming to any type of agreement often involves compromise and negotiation. Negotiation can occur in a variety of different ways, where you and your former spouse can negotiate privately, you can engage family lawyers to help facilitate negotiation alongside you, or a family lawyer can represent you in negotiations with your former partner or the legal representative.
It’s important to think about what is important to you when it comes to negotiation and ensure that you listen to the other party too.
Mediation is a common way for disputes to be resolved and agreements to be made. This is where a third-party mediator works as a neutral person to facilitate discussions and negotiations between the parties. Lawyers can also be present for mediation too.
Family law matters can be stressful because they usually involve matters that are somewhat emotional and very personal in nature, which can make it difficult to calmly discuss your situation with your former partner. The mediator’s role is to ensure that discussion stays on track and that each party gets to talk about their issues, concerns and wishes.
Mediation is also often a required step before parties can apply to court to have a matter resolved.
The court of the family law system in Australia is the Federal Circuit and Family Court of Australia and its’ role is to assist people to resolve their family law matters efficiently. The Court deals with all kinds of family law matters, including those that we listed earlier.
Going to Court to resolve a matter is usually a last resort unless the matter is particularly urgent. There are a few reasons for this including that having to go to Court may take a significant amount of time and can be quite costly for parties, but it’s also due to goal of the system being to allow people to come to their own agreements and have more control over the outcomes. When a Court makes an order (a decision) it may be able to be appealed, however, it can be difficult to change orders and occasionally, the decision of a Court may not be favourable or preferable for either party involved.
What factors matter when resolving family law disputes?
The family law legislation provides guidelines about some key factors that need to be considered when resolving family law matters. These factors are considered by the Court, legal professionals and should also be considered by the parties involved.
For matters that involve children and parenting, decisions should be based on the benefit of the child having a meaningful relationship with both parents, and the child having a right to be protected from harm of any kind. These factors are the two key principles of a family law concept known as the best interests of the child.
Matters that are about finances and property needs to take into account the fairness of any agreement and must be just and equitable in nature.
Do you need a lawyer for family law matters?
No, however it is recommended that you seek legal advice.
A family lawyer can provide legal advice, review agreements you’ve made, represent you in negotiations, provide support in mediations, help to prepare applications and documentation, and represent you in court.
While many family law processes do not require a lawyer, we recommend working with one because understanding family law is difficult. The system can be complex and when you’re going through a difficult time, trying to understand all that is required of you as well as what you’re entitled to can be difficult.
What to do if you are involved in a family law matter
If you’re involved in a family law matter, seek advice early. You don’t necessarily need to engage with a lawyer to resolve your matters, however, by seeking advice early, you can understand where you stand and move forward from there.
A family lawyer can give you the guidance you need to know how to move forward and resolve your matters more efficiently and fairly.
Mark Machaalani is the CEO and Co-Founder of Unified Lawyers, a law firm that aims to disrupt the traditional legal model through the incorporation of innovative technology. With a background in both law and information technology, Mark brings a unique blend of expertise to the firm. He has over a decade of experience in the legal field, specialising in areas such as commercial litigation, debt recovery, bankruptcy, insurance law, property law, and family law.
Mark is particularly passionate about intellectual property and technology law, and leads the strategic direction of Unified Lawyers, focusing on implementing innovative technology, creating a positive company culture, and investing in his team.
Unified Lawyers initially offered a comprehensive range of legal services but later decided to pivot and focus solely on family law as Mark recognised a need for a dedicated national family law firm that could provide better service to clients going through difficult family matters.
Mark’s drive to disrupt the legal industry stems from his upbringing in an entrepreneurial family. He has a personal perspective on the challenges faced by families, being married with three young boys. His goal is to make a positive impact and bring happiness to his clients and those around him.
To experience the difference, individuals can reach out to Mark and the team at Unified Lawyers for their legal needs.