Navigating Family Law in Australia: Your Comprehensive Guide

Going through a separation or divorce is tough. There’s no way around it. On top of the emotional rollercoaster, you’re suddenly faced with a legal system that can feel confusing and overwhelming. What are your rights? What happens with the kids? How do you divide your property? It’s like being handed a complex map in a foreign language when you’re already feeling lost.

But take a deep breath. The purpose of this guide is to walk you through the basics of family law in Australia, step-by-step, in plain English. The Australian family law system is designed to help families sort out the legal side of relationship breakdowns. While it encourages you and your ex-partner to reach agreements yourselves where possible , it provides a framework for making decisions when you can’t agree, always with a focus on the well-being of any children involved. It might seem complicated, but understanding the fundamentals is definitely achievable, and this guide is here to help you do just that.

What Exactly is Family Law in Australia?

So, what does “family law” actually cover? Think of it as the set of legal rules that govern family relationships and what happens when those relationships change or end.

The Basics: Scope and Purpose

Family law in Australia is a broad area. It deals with everything from the legal requirements of marriage and de facto relationships (including same-sex relationships, thanks to important reforms like the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008) to the processes of divorce and separation. Crucially, it covers:

• Parenting arrangements: Figuring out who children live with, how much time they spend with each parent, and who makes major decisions about their lives.
• Property division: How assets (like houses, savings, superannuation) and debts are divided when a couple separates.
• Financial support: This includes child support (money paid by parents for children’s costs) and spousal maintenance (financial support one ex-partner might pay to the other).
• Family violence: Providing legal protection and considering the impact of violence on decisions, especially regarding children.

The main goal isn’t just about ending relationships legally; it’s about helping families navigate the legal and personal issues that arise, restructuring responsibilities and finances in a fair way, especially ensuring children’s welfare is protected. The system actively encourages separating couples to work things out between themselves through negotiation or mediation, seeing court as a last resort. This reflects a societal interest in finding stable, workable solutions for families post-separation. You’ll also notice the law has evolved significantly over time to include de facto and same-sex couples, showing its adaptation to reflect modern Australian families.

The Rulebook: The Family Law Act 1975

The cornerstone of Australian family law is the Family Law Act 1975 (Cth). This major piece of federal legislation revolutionised the system back in the 70s, most notably by introducing ‘no-fault’ divorce. This means you don’t have to prove someone was ‘to blame’ for the marriage ending; the only ground needed is that the relationship has broken down irretrievably.

But the Act does far more than just deal with divorce. It’s a massive piece of legislation (growing from 12 parts originally to over 28 today) that sets out the rules for almost everything we’ve mentioned:

• How parenting arrangements are decided, focusing on the child’s best interests.
• How property is divided.
• When spousal maintenance might be paid.
• How family violence is defined and considered.
• The processes for dispute resolution, like mediation.
• Rules around financial agreements (like prenups).

It’s important to understand that the Family Law Act isn’t static. It’s a living document that gets updated regularly through amendments (like major ones in 1983, 1995, 2006, 2011, and significant changes in 2023 and 2024). These changes often reflect shifts in society’s understanding of families, relationships, and issues like family violence, or respond to criticisms about how the system is working. This constant evolution shows the law trying to keep pace with the needs of Australian families.

Interestingly, while the ‘no-fault’ principle makes the divorce itself simpler, it creates a unique dynamic. Issues like family violence or financial misconduct, which definitely involve ‘fault’ or harmful behaviour, are still incredibly relevant when making decisions about children’s safety or dividing property fairly. So, the system has to carefully balance the no-fault divorce framework with the need to address harmful actions in related matters.

Who Handles Family Law Matters? The FCFCOA Explained

When people can’t agree on family law issues, they might need to involve the courts. In Australia (except Western Australia, which has its own state Family Court), the main court dealing with these matters is the Federal Circuit and Family Court of Australia (FCFCOA).

Court Structure: Division 1 vs. Division 2

The FCFCOA was formed in September 2021 by merging two previous courts: the Family Court of Australia and the Federal Circuit Court of Australia. The idea behind the merger was to create a more streamlined, efficient system with a single entry point for all family law cases. However, this merger wasn’t without controversy; many legal professionals worried about losing the specialised focus of the old Family Court and the potential impact on vulnerable people, like those experiencing family violence. This highlights an ongoing tension – balancing the desire for administrative efficiency with the need for careful, specialised handling of sensitive family issues.

The FCFCOA operates in two divisions:

• FCFCOA (Division 1): This is essentially the continuation of the specialist Family Court. It’s a superior court that handles the most complex family law trials (like tricky parenting cases or high-value property disputes) and hears appeals from decisions made in Division 2. It has fewer judges (around 35).
• FCFCOA (Division 2): This is the continuation of the old Federal Circuit Court. It’s the main entry point for almost all new family law applications, including divorce, simpler parenting matters, and property settlements. It has a much broader jurisdiction, also dealing with other federal matters like migration, bankruptcy, and workplace law. It has significantly more judges (around 76) and handles the bulk of the family law caseload.

Both divisions are led by a single Chief Justice, supported by Deputy Chief Justices/Judges. This structure aims to triage cases, sending the majority to the higher-volume Division 2 and reserving the specialised resources of Division 1 for the most difficult matters. The effectiveness of this filtering system is crucial for the court to manage its workload efficiently.

The Court’s Role: What They Do

So, what does the FCFCOA actually do? Its primary role is to help people resolve their family law disputes when they can’t reach an agreement themselves. This involves making legally binding decisions (called ‘orders’) on things like:

• Granting divorces
• Parenting arrangements (who children live with, spend time with, parental responsibility)
• Dividing property and finances
• Ordering spousal or de facto maintenance

A huge focus for the court is ensuring the safety of children and vulnerable parties. This is reflected in initiatives like:

• The Lighthouse Project: A specialised pathway for parenting cases involving risks like family violence, substance abuse, or mental health issues. It involves early risk screening, assessment, and tailored case management to prioritise safety. Its expansion across more court registries shows a commitment to addressing these risks systemically.
• Specialised Support: The court offers services like Indigenous Liaison Officers and maintains Indigenous Lists with modified processes sensitive to Aboriginal and Torres Strait Islander cultures.
• Promoting Dispute Resolution: The court actively encourages parties to use mediation and other dispute resolution methods, viewing court proceedings as a last resort. They provide resources and information to help people understand the process and their options.

The court’s role seems to be shifting from purely making judgments towards more active case management. They aim to identify risks early, guide parties towards resolution where possible, and manage cases efficiently and safely. This proactive approach, including targeted programs like Lighthouse, shows the court system trying to respond directly to known problems like family violence and access to justice barriers.

Key Areas Covered by Australian Family Law

Let’s break down the major types of issues that fall under the umbrella of Australian family law.

Ending a Marriage: Divorce and Separation

The No-Fault Approach and 12-Month Rule

As mentioned earlier, Australia has a ‘no-fault’ divorce system, established by the Family Law Act 1975. This was a big change from the past, where you often had to prove misconduct like adultery or cruelty. Now, the only legal reason (ground) for divorce is that the marriage has broken down irretrievably, meaning there’s no reasonable chance you’ll get back together.

How do you prove this? The key requirement is demonstrating that you and your spouse have been separated for at least 12 months immediately before you apply for the divorce. This 12-month period acts as objective evidence of the breakdown and provides a sort of ‘cooling-off’ period.

Importantly, ‘separation’ doesn’t necessarily mean one person has to move out. You can be considered separated even if you continue living in the same house (‘separated under one roof’), as long as you are living separate lives (e.g., sleeping apart, managing finances separately, no longer presenting as a couple). If you separate under one roof, you’ll likely need to provide extra evidence to the court about your living arrangements.

Once the court grants a divorce, there’s typically a one-month waiting period before the divorce order becomes final. Also, a recent change removed an older requirement where couples married less than two years had to attend counselling or get special permission from the court before applying for divorce; that extra hurdle no longer exists.

It’s crucial to remember that while the no-fault system simplifies the divorce application itself, it doesn’t mean that behaviour during the relationship is irrelevant to other issues. As we’ll see, things like family violence or how finances were managed can definitely impact decisions about parenting and property division.

Applying for Divorce: The Process

Applying for a divorce is mostly an administrative process, but you need to follow the steps carefully. Here’s a general overview:

1. Check Eligibility: You or your spouse need a connection to Australia (e.g., citizen, permanent resident, or lived here for the last 12 months).
2. Confirm Separation: Ensure you’ve been separated for at least 12 months and one day.
3. Prepare Application: You can apply by yourself (sole application) or with your spouse (joint application). The application is usually filed electronically through the Commonwealth Courts Portal.
4. Attach Documents: You’ll need to upload a copy of your marriage certificate (and a certified translation if it’s not in English). You might also need proof of citizenship/residency or affidavits explaining things like name changes or separation under one roof.
5. Pay Fee: There’s a court filing fee, though you can apply for a reduction if you qualify.
6. Sign & Witness: You’ll need to print and sign an affidavit confirming the application details, usually in front of a Justice of the Peace (JP) or lawyer.
7. Serve (Sole Applications Only): If you apply solely, you must legally notify your spouse by ‘serving’ the divorce papers on them. You can’t do this yourself; it needs to be done by someone else over 18 (like a friend, relative, or professional process server) or by post in some cases. This must happen at least 28 days before the court hearing date. Your spouse is usually asked to sign an ‘Acknowledgment of Service’ form. Failure to serve properly can delay your divorce.
8. Address Children’s Arrangements: If you have children under 18, the court needs to be satisfied that proper arrangements are in place for their care, welfare, and development before granting the divorce. You’ll need to provide details about living arrangements, time spent with each parent, communication, schooling, health, and financial support.
9. Court Hearing: A hearing date will be set. Attendance is often required if you filed a sole application and have children under 18. For joint applications or sole applications with no children under 18, attendance usually isn’t necessary.

Crucially, getting a divorce only ends the marriage legally. It does not automatically sort out parenting arrangements or divide your property and finances. These need to be dealt with separately, either through agreement or separate court applications. Be aware of strict time limits: generally, you must start court proceedings for property settlement or spousal maintenance within 12 months of your divorce becoming final. This deadline creates an incentive to resolve financial matters promptly.

Focusing on Kids: Parenting Arrangements 

When parents separate, figuring out the arrangements for the children is often the most emotional and important issue. The law is firmly focused on one thing: what is in the best interests of the child?.1 This principle overrides everything else.

The ‘Best Interests of the Child’: What Does it Mean Now? (Post-May 2024 Reforms) 

Significant changes to the Family Law Act regarding parenting came into effect on 6 May 2024. These reforms aimed to make the system safer, simpler, and more focused on children’s needs. Here are the key shifts:

1. No More Presumption of Equal Shared Parental Responsibility: Previously, the law started with a ‘presumption’ that it was best for parents to have “equal shared parental responsibility” (meaning joint decision-making on major long-term issues). This presumption has been removed. This doesn’t mean parents can’t share responsibility, but the court no longer begins with that assumption. It was often misunderstood as a right to equal time with the child, which was never the case. The change allows for more flexible arrangements tailored to the child’s specific situation and safety.
2. Simplified ‘Best Interests’ Factors (Section 60CC): The old, complicated list of ‘primary’ and ‘additional’ factors the court had to consider has been replaced with a shorter, core list of six general factors. These are (in no particular order):

• Safety: Promoting the safety of the child and their carers from family violence, abuse, neglect, or other harm. This explicitly requires looking at any history of violence or relevant court orders.
• Child’s Views: Considering any views expressed by the child, taking into account their maturity and understanding.
• Child’s Needs: The child’s developmental, psychological, emotional, and cultural needs.
• Parental Capacity: Each parent’s (or proposed carer’s) ability to provide for those needs.
• Benefit of Relationships: The benefit to the child of having relationships with parents and other significant people (like grandparents or siblings), where it is safe to do so.
• Anything Else Relevant: A catch-all for any other specific circumstances of the child.

1. Specific Factors for Indigenous Children: If the child is Aboriginal or Torres Strait Islander, the court must also consider their right to enjoy their culture and connection to family, community, country, and language.
2. Stronger Focus on Safety: The reforms place an even greater emphasis on protecting children from harm, particularly family violence. Safety is the first factor listed and is embedded throughout the considerations.
3. Independent Children’s Lawyers (ICLs) Must Meet Children: When an ICL is appointed to represent a child’s best interests independently, they are now generally required to meet with children aged 5 and over to hear their views directly, unless there’s a good reason not to (like the child refusing or exceptional circumstances). This elevates the child’s voice within the legal process itself.

These 2024 changes represent a significant recalibration, moving away from potentially rigid assumptions towards a more nuanced assessment focused squarely on the individual child’s safety and well-being in their specific family context.

Parental Responsibility vs. Parenting Time

It’s vital to understand the difference between two key concepts:

• Parental Responsibility: This refers to all the duties, powers, responsibilities, and authority parents legally have concerning their children. It mainly relates to making major long-term decisions about things like the child’s education, health, religious upbringing, name, and significant changes to living arrangements. Generally, both parents continue to share parental responsibility after separation, unless a court orders otherwise (e.g., gives one parent sole responsibility for all or some decisions). The law encourages parents with shared responsibility to consult each other on these major decisions.
• Parenting Time: This is about how much time the child physically spends with each parent. This used to be called ‘custody’ and ‘contact’, but those terms are no longer used in Australian family law. There is no automatic rule that children must spend 50% of their time with each parent. The amount of time is determined based purely on what’s in the child’s best interests in their particular circumstances.

The law treats responsibility (decision-making) and time (physical care) as related but separate issues. This allows for flexible arrangements. For example, parents might share decision-making equally but have very different amounts of time with the child, or one parent might have sole decision-making power while the child still spends substantial time with the other parent – it all depends on the best interests assessment.

Parents can agree on these arrangements informally, write them down in a Parenting Plan (which shows agreement but isn’t legally enforceable like a court order), or apply to the court to have their agreement made into legally binding Consent Orders.

Dividing Assets: Property Settlement 

When a marriage or de facto relationship ends, one of the biggest practical tasks is dividing the property accumulated during the relationship (and sometimes before or after separation). This includes both assets (things you own) and liabilities (debts you owe).

The Four-Step Process Explained

When a marriage or de facto relationship ends, one of the biggest practical tasks is dividing the property accumulated during the relationship (and sometimes before or after separation). This includes both assets (things you own) and liabilities (debts you owe).

The Four-Step Process Explained

While every case is unique, the family courts generally follow a well-established ‘four-step process’ as a framework to decide how to divide property in a way that is ‘just and equitable’ (fair). Recent legislative changes aim to clarify and embed this approach more formally in the Family Law Act. Here are the steps:

Step 1: Identify and Value the Asset Pool: The first job is to figure out exactly what there is to be divided. This involves listing all assets and liabilities of both parties, whether owned jointly, individually, or held in structures like companies or trusts. Assets include things like the family home, investment properties, bank accounts, shares, businesses, cars, furniture, jewellery, and superannuation. Liabilities include mortgages, loans, credit card debts, etc.. Everything is valued at its current market value. The ‘net asset pool’ is the total value of assets minus the total value of liabilities. Superannuation is treated as property and can be split between partners as part of the settlement. A critical part of this step is full and frank financial disclosure – both parties have a legal duty to be honest and provide all relevant financial information and documents to each other. Hiding assets is taken very seriously and can lead to agreements being overturned or penalties. Transparency is key to a fair outcome.

Step 2: Assess Contributions: The court then looks at the contributions each person made to acquiring, conserving, or improving the assets in the pool. Contributions aren’t just financial; they fall into several categories:

• Direct Financial Contributions: Income earned, inheritances received, gifts from family, assets brought into the relationship.
• Indirect Financial Contributions: For example, one partner paying household bills allowing the other to save or invest.
• Non-Financial Contributions: Things like carrying out renovations, managing investments, or maintaining property.
• Contributions to the Welfare of the Family (Homemaker/Parent): Caring for children, running the household, supporting the other partner’s career. The law recognises these contributions as equally important as financial ones.

Step 3: Consider Future Needs (Section 75(2) / 90SF(3) Factors): After assessing contributions (which might result in a percentage split, say 60/40), the court considers if any adjustments are needed based on the future needs and circumstances of each party. This involves looking at factors listed in the Act (often called the ‘section 75(2) factors’ for marriages or ‘section 90SF(3) factors’ for de facto relationships), such as:

• Age and health of each person.
• Income, property, and financial resources of each person.
• Ability to work and earning capacity.
• Who has the primary care of the children under 18.
• Responsibilities to support themselves or others.
• A suitable standard of living.
• How the relationship affected earning capacity (e.g., if one person gave up work to raise children). Recent reforms now also explicitly require courts to consider the economic impact of family violence and the care and housing needs of children at this stage. This acknowledges that violence can hinder someone’s ability to contribute financially or increase their future needs, making the link between violence and financial outcomes clearer.

Step 4: Ensure a Just and Equitable Outcome: Finally, the court steps back and looks at the overall proposed division resulting from the first three steps. It considers the practical effect and asks: Is this outcome fair and equitable (just) in all the circumstances of this specific case?

This four-step process provides a structured way to approach property division, balancing past contributions with future needs to arrive at a fair result tailored to each family’s unique situation.

Financial Support After Separation: Spousal Maintenance 

Sometimes, after separation, one person may not be able to financially support themselves adequately, while the other person has the capacity to help. This is where spousal maintenance (for married couples) or de facto maintenance (for de facto couples) comes in. It’s essentially ongoing financial support paid by one ex-partner to the other for a period. It’s different from child support, which is specifically for the children.

When is Maintenance Payable? The Threshold Test

Spousal or de facto maintenance isn’t automatic or granted in every case. There’s a specific ‘threshold test’ that must be met:

Need: The person applying for maintenance must demonstrate they are unable to support themselves adequately from their own income or assets. The reasons for this inability could be:

• Having the care of a child of the relationship under 18 years old.
• Their age or physical/mental health prevents them from working appropriately.
• Any other adequate reason (which gives the court flexibility).

Capacity: The other party (the person being asked to pay) must have the financial capacity to provide support after meeting their own reasonable living expenses.

If both these conditions are met, the court then considers a range of factors (the same ‘section 75(2)’ or ‘section 90SF(3)’ factors used in property settlements) to decide if maintenance should be paid, how much, and for how long. These factors include age, health, income, property, ability to work, care of children, the standard of living during the relationship, and whether the relationship impacted earning capacity. This overlap in factors shows the court looks at property division and maintenance together to achieve an overall fair financial outcome post-separation.

Maintenance can be paid as regular periodic amounts (e.g., weekly or monthly) or sometimes as a lump sum. It might be ordered for a fixed period (e.g., while someone retrains for work) or, less commonly, indefinitely.

Important points to note:

• Time Limits: Like property settlement, there are time limits. Married couples must apply within 12 months of their divorce becoming final. De facto couples must apply within 2 years of separation. Applying outside these times requires special permission from the court.
• Remarriage/New Relationships: Entitlement to spousal maintenance usually ends if the person receiving it remarries. If they enter a new de facto relationship, the court will consider the financial circumstances of that new relationship when assessing their need for ongoing maintenance from their former partner.

Addressing Family Violence 

Family violence is a critical issue within the family law system. The law takes it very seriously, recognising the devastating impact it can have on individuals and children, often escalating during separation.

Definition and Impact on Court Decisions

The Family Law Act (in section 4AB) provides a very broad definition of family violence. It’s not just physical assault. It includes “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family… or causes the family member to be fearful”.

Examples given in the Act include:

• Physical assault or injury
• Sexual assault or sexually abusive behaviour
• Stalking
• Repeated derogatory taunts (emotional/psychological abuse)
• Intentionally damaging property
• Harming or killing pets
• Unreasonably controlling finances (economic abuse) 
• Preventing someone from connecting with family, friends, or culture (social isolation)
• Unlawfully depriving someone of their liberty

This broad definition, which has expanded over time to explicitly include concepts like coercion, control, and economic abuse, reflects a deeper understanding that violence takes many forms. The law also recognises that a child is exposed to family violence if they see it, hear it, or experience its effects (like comforting a victim or seeing police attend).

Family violence has a significant impact on family law proceedings:

• Parenting: Protecting children from physical or psychological harm arising from exposure to abuse, neglect, or family violence is a paramount consideration in determining their best interests. Safety is the top factor in the revised ‘best interests’ list. Evidence of violence can lead to orders for limited or supervised time with a parent.
• Property Settlement: As mentioned, recent reforms explicitly allow the court to consider the economic impact of family violence when dividing property. This acknowledges that violence can affect a person’s ability to earn income or contribute financially (sometimes referred to as the Kennon principle).
• Dispute Resolution: Allegations of family violence or risk can be grounds for an exemption from the requirement to attend Family Dispute Resolution (FDR) before going to court for parenting orders.
• Protection Orders: Courts can make Family Violence Orders (injunctions under the Family Law Act) for personal protection. These operate alongside, and interact with, state and territory protection orders (like AVOs or DVOs).
• Court Processes: The FCFCOA uses specialised processes like the Lighthouse Project for early risk screening and management in cases involving violence. New ‘harmful proceedings orders’ can also be made to stop perpetrators from using litigation itself as a form of abuse.

The increasing focus on family violence across all aspects of the system shows a systemic shift towards prioritising safety. However, proving violence in court can still be challenging, as it often happens privately. While the law doesn’t require independent corroboration like police reports for a finding, gathering evidence and navigating the process can be difficult for victims.

Resolving Disputes: Pathways Beyond the Courtroom

While the court is there to make decisions when needed, the family law system strongly encourages people to resolve their disputes without lengthy and expensive court battles.

Court vs. ADR: What’s the Difference?

There are fundamentally two ways to resolve family law disputes:

1. Court Proceedings (Litigation): This involves filing applications, presenting evidence (like affidavits and witness testimony), and having a judge make legally binding decisions based on the law. It can be formal, adversarial (though courts are trying to use less adversarial approaches), costly in terms of legal fees and emotional stress, and take a long time to reach a final outcome.
2. Alternative Dispute Resolution (ADR): This is an umbrella term for various methods used to resolve disputes outside of a formal court hearing. Common ADR methods in family law include:

• Negotiation: Direct discussion between parties or through their lawyers.
• Mediation: A neutral third party (the mediator) helps parties communicate, identify issues, explore options, and try to reach their own agreement. Family Dispute Resolution (FDR) is a specific type of mediation for family law.
• Conciliation: Similar to mediation, but the third party might offer more guidance or suggestions.
• Arbitration: A neutral third party (the arbitrator) makes a binding decision after hearing from both sides, often quicker and less formal than court.
• Collaborative Practice: Parties and their specially trained lawyers commit to resolving issues respectfully without going to court.

ADR processes are generally cheaper, faster, more flexible, and less formal than court. They focus on empowering parties to find mutually agreeable solutions. The strong push towards ADR reflects a policy goal of managing court resources and promoting less conflict-ridden outcomes for families.

Mediation and Family Dispute Resolution (FDR) 

Family Dispute Resolution (FDR) is a crucial part of the family law system, especially for parenting matters. It’s a specific type of mediation conducted by an accredited FDR practitioner. Their role is to help separating parents communicate effectively, identify the issues they disagree on, explore possible solutions, and try to reach an agreement about arrangements for their children.

FDR is generally confidential, meaning what’s said during the process usually can’t be used as evidence in court later (though there are exceptions, particularly regarding child safety). This confidentiality encourages open and honest discussion.

Perhaps the most important thing to know about FDR is that, for parenting disputes, you are generally required by law to make a genuine attempt at FDR before you can apply to the court for parenting orders. There are exceptions, mainly in cases involving family violence, child abuse, or urgency. This mandatory requirement positions FDR as a critical gateway, designed to filter cases and encourage resolution before they hit the courtroom. Online tools like amica are also available to help couples negotiate agreements online.

The Role of Section 60I Certificates

To prove to the court that you’ve met the FDR requirement (or that an exception applies), you generally need a Section 60I certificate. Only accredited FDR practitioners can issue these certificates.

The certificate will state one of several things, depending on what happened during the FDR attempt:

• That one party refused or failed to attend FDR.
• That the FDR practitioner decided FDR was not appropriate (e.g., due to safety concerns, power imbalances, or lack of readiness to negotiate).
• That both parties attended and made a genuine effort to resolve the issues (even if they didn’t fully agree).
• That parties attended, but one or both did not make a genuine effort.
• That FDR started, but the practitioner decided it wasn’t appropriate to continue.

You need to file this certificate with your court application for parenting orders. Courts now have the power to reject applications filed without a required certificate or a valid exemption. The certificate itself doesn’t contain details of the discussions, but the type of certificate issued (e.g., ‘failed to attend’ or ‘did not make genuine effort’) gives the court some initial context about the pre-court attempts at resolution. Be aware that courts can potentially order a party who didn’t attend or participate genuinely in FDR to pay some of the other party’s legal costs, adding incentive to take the process seriously. Certificates are generally valid for 12 months from the last FDR session. Keep an eye out for changes to FDR practitioner accreditation rules coming in April 2025.

Important Legal Tools and Considerations

Beyond the core areas of divorce, parenting, and property, there are other important tools and calculations within family law.

Child Support: How is it Calculated? 

Both parents have a legal duty to financially support their children after separation, regardless of who the children live with most of the time. This is handled through the child support scheme, administered by Services Australia.

While parents can make private agreements about child support (called Binding Child Support Agreements), most rely on an assessment by Services Australia. This assessment uses a complex basic formula to calculate the amount payable. The formula aims for an objective calculation based mainly on income and the amount of care each parent provides.

Here’s a simplified overview of the 8 steps involved:

Table: Child Support Basic Formula Steps

Step	Action	Key Factors / Calculation
1	Work out each parent’s Child Support Income	Adjusted Taxable Income (ATI) minus Self-Support Amount (currently approx. $29,841 for 2025) minus any Relevant Dependant Allowance.
2	Work out Combined Child Support Income	Add both parents’ Step 1 incomes together.
3	Work out each parent’s Income Percentage	(Parent’s Step 1 Income ÷ Combined Step 2 Income) x 100.
4	Work out each parent’s Percentage of Care	Based on the number of nights per year the child spends with each parent.
5	Work out each parent’s Cost Percentage	Determined by the Percentage of Care (see table below).
6	Work out each parent’s Child Support Percentage	Parent’s Income Percentage (Step 3) minus Parent’s Cost Percentage (Step 5). A positive percentage usually means that parent pays support.
7	Work out the Costs of the Children (COTC)	Based on the Combined Income (Step 2), number of children, and their ages, using official Costs of the Children tables.
8	Calculate Annual Rate of Child Support Payable	For the parent with a positive percentage at Step 6: Child Support Percentage (Step 6) x Costs of the Children (Step 7).

The relationship between the amount of care a parent provides and their ‘Cost Percentage’ is crucial:

Table: Care Percentage and Cost Percentage (Approximate)

Care Percentage Range	Nights per Year (Approx.)	Care Level	Cost Percentage
0% – 13%	0 – 51	Less than regular	0%
14% – 34%	52 – 127	Regular care	24%
35% – 47%	128 – 175	Shared care	25% + 2% for each point over 35%
48% – 52%	176 – 189	Shared care	50%
53% – 65%	190 – 237	Shared care	51% + 2% for each point over 53%
66% – 86%	238 – 313	Primary care	76%
87% – 100%	314 – 365	More than primary care	100%

(Based on tables in)

As you can see, the formula is detailed! Because the ‘Percentage of Care’ directly impacts the ‘Cost Percentage’ and therefore the final amount, accurately calculating parenting time is vital. Even small errors in counting nights can significantly change the child support payable. Services Australia has online estimators that can help give you an idea of the likely assessment. Also, be aware that the amount of child support paid or received can affect your eligibility for, or the amount of, Family Tax Benefit (FTB) payments.

Planning Ahead: Financial Agreements (Prenups) 

What if you want to decide in advance how your finances would be handled if you separate? Or perhaps you’ve separated and reached an agreement yourselves, and want to formalise it privately without going to court for Consent Orders? This is where Binding Financial Agreements (BFAs) come in.

A BFA is essentially a private contract between a couple (married or de facto) made under specific parts of the Family Law Act (Part VIIIA for marriages, Part VIIIAB for de facto relationships). They allow you to set out how your property, financial resources, and even spousal maintenance will be dealt with in the event of separation.

BFAs can be made :

• Before a marriage or de facto relationship (these are commonly called ‘prenuptial agreements’ or ‘prenups’).
• During a marriage or de facto relationship.
• After a marriage breakdown (divorce) or de facto relationship separation.

If a BFA is properly made and binding, it generally ‘ousts the jurisdiction of the court’. This means the court usually cannot override the agreement and make different orders about the issues covered by the BFA. It allows couples to ‘contract out’ of the usual court process for property settlement and/or spousal maintenance.

However, for a BFA to be legally binding, it must meet very strict technical requirements set out in the Act (sections 90G for marriages, 90UJ for de facto). These include:

• The agreement must be in writing and signed by both parties.
• Crucially, before signing, each party must receive independent legal advice from a qualified lawyer about:

• The effect of the agreement on their rights.
• The advantages and disadvantages for them of making the agreement at that time.

• Each lawyer must provide a signed statement (certificate) confirming they gave this specific advice, and these certificates must be annexed to the BFA.
• The agreement hasn’t been terminated or set aside by a court.

These strict requirements, especially the mandatory independent legal advice, are designed as safeguards to ensure both parties understand what they are signing and aren’t being pressured or misled. The law tries to balance the autonomy of allowing private agreements with protecting potentially vulnerable parties.

Even if a BFA meets these requirements, it’s not completely untouchable. A court can still set aside a BFA in certain circumstances, such as:

• If the agreement was obtained by fraud (including failing to disclose significant assets or liabilities).
• If one party signed under duress, undue influence, or their conduct was unconscionable (extremely unfair).
• If circumstances have changed significantly since the agreement was made, making it impractical to carry out.
• If there’s been a material change relating to the care of a child of the relationship, and a party will suffer hardship if the agreement isn’t set aside.

So, while BFAs offer certainty and control, they need to be drafted very carefully with proper legal advice to be effective, and even then, they aren’t immune to challenge if fairness or procedure was compromised.

Keeping Up-to-Date: Recent Family Law Reforms (2023/2024) 

The family law landscape is constantly evolving, and there have been some very significant changes recently, mostly taking effect from 6 May 2024. These reforms, driven by government inquiries and reviews, aim to make the system simpler, safer, and more focused on children.

Key Changes to Parenting Laws

As discussed earlier under Parenting Arrangements, the Family Law Amendment Act 2023 brought major changes:

• Removal of the presumption of equal shared parental responsibility: This is perhaps the biggest shift, moving away from a potentially confusing starting point towards a more flexible assessment based purely on the child’s best interests.
• Simplified ‘best interests’ factors (s60CC): A shorter, clearer list focusing on safety, the child’s views and needs, parental capacity, and safe relationships.
• Mandatory ICL meetings with children: Strengthening the child’s voice in proceedings.
• Clearer rules for varying final orders: Codifying the Rice v Asplund principle, requiring a significant change in circumstances and it being in the child’s best interests to reconsider a final order.
• Revised enforcement provisions: Aiming for simpler compliance with parenting orders.

These changes collectively represent a significant effort to refine the parenting framework based on expert advice and feedback, prioritising safety and individual circumstances. Western Australia has also mirrored these Commonwealth reforms in its state family law system.

Information Sharing and Safety Focus

Alongside the parenting changes, the Family Law Amendment (Information Sharing) Act 2023 also commenced in May 2024. This Act aims to break down silos between systems. Its main goal is to improve the sharing of crucial information about family violence, child abuse, and neglect risks between the family courts, state/territory child protection agencies, and police forces.

This means the court should have better access to relevant information held by other agencies when assessing safety risks in parenting matters. The Act introduces new court powers to order information sharing, provides protection for people who report suspected abuse (notifiers), and sets rules about how shared information can be used in court. This directly addresses concerns that vital risk information wasn’t always getting to the family court judges making critical decisions about children’s safety.

Other recent or upcoming reforms further emphasize safety and efficiency:

• Family Violence & Property: Explicitly considering the economic impact of family violence in property settlements.
• Pets: Allowing courts to consider factors like family violence when deciding ownership of pets.
• Less Adversarial Trials: Expanding the court’s ability to use less formal, more judge-led trial processes in property and financial matters, not just parenting cases.
• Children’s Contact Services: Establishing a regulatory framework for services that supervise contact between children and parents when safety is a concern.
• Divorce Simplification: Removing the requirement for counselling or court leave for couples married less than two years seeking divorce.

Taken together, this package of reforms shows a concerted effort to make the family law system more integrated, responsive to safety risks, and less combative for the families navigating it.

Conclusion: Key Takeaways

Navigating separation and the Australian family law system can feel like a daunting journey, but understanding the key landmarks can make it more manageable.

We’ve seen that family law covers the essential legal aspects of relationship breakdown – divorce, arrangements for children, dividing property, and financial support. The Family Law Act 1975 is the main rulebook, and the Federal Circuit and Family Court of Australia (FCFCOA) is the primary venue for resolving disputes when agreement isn’t possible.

Throughout the process, the best interests of the child are the absolute top priority, especially their safety.8 The significant 2024 reforms have reinforced this, simplifying parenting laws, removing the potentially confusing presumption of equal shared parental responsibility, and strengthening the focus on safety and the child’s voice.

When it comes to finances, property settlement generally follows a four-step process considering assets, contributions, and future needs, while spousal maintenance depends on one party’s demonstrated need and the other’s capacity to pay. Family violence is defined broadly and taken very seriously, impacting decisions across parenting, property, and court procedures.

The system strongly encourages resolving disputes through Alternative Dispute Resolution (ADR) like mediation or Family Dispute Resolution (FDR), which is mandatory for parenting matters before court action (unless exempt). Tools like Binding Financial Agreements offer a way for couples to plan their financial affairs privately, provided strict legal requirements are met.

Ultimately, the family law system aims to provide a framework for fair and workable resolutions during a difficult time. While this guide provides an overview, family law is complex and every situation is different. Don’t hesitate to seek professional legal advice tailored to your specific circumstances and make use of the many support services available to help you through this process.

Disclaimer:

This article provides general information on Australian family law and is not a substitute for legal advice. Laws change, and this information may not be fully up-to-date. Always consult a qualified family lawyer for advice specific to your situation. We accept no liability for reliance on this content.

Frequently Asked Questions (FAQs)

What’s the first step if my partner and I separate?

If you’ve just separated, the very first priority is ensuring everyone’s immediate safety, especially if there are concerns about family violence. Practically, start thinking about immediate living arrangements and how children will be cared for day-to-day. It’s highly recommended to get initial legal advice early on to understand your rights, responsibilities, and options under family law. Begin gathering important financial documents like bank statements, pay slips, and property valuations, as these will be needed for property settlement. Explore dispute resolution options – Family Dispute Resolution (FDR) is often the starting point, particularly for sorting out parenting arrangements.1 Resources like the government’s Family Relationships Online website and advice line can provide valuable initial information and referrals.

Do we have to go to court to sort things out?

Absolutely not! In fact, the family law system strongly encourages you not to go to court if possible. Court proceedings can be lengthy, expensive, and stressful. Most separating couples manage to reach agreements on parenting and/or property matters through negotiation (either directly or via lawyers), mediation (including the mandatory FDR process for parenting disputes), or collaborative practice. Court should generally be seen as the last resort for when you genuinely cannot agree. If you do reach an agreement, you can make it legally binding by applying to the court for ‘Consent Orders’ without needing a formal hearing, or by entering into a ‘Binding Financial Agreement’ (which requires independent legal advice).

How have the 2024 law changes affected parenting arrangements?

The May 2024 changes significantly shifted the focus in parenting matters. The biggest change was the removal of the ‘presumption of equal shared parental responsibility’ – the court no longer starts by assuming joint decision-making is best. Instead, decisions about parental responsibility and time are based purely on a simplified list of ‘best interests’ factors. These factors place a very strong emphasis on the child’s safety (including protection from family violence), the child’s own views, their individual developmental needs, and the capacity of parents to meet those needs. The aim is to make decisions that are safer, simpler, and more tailored to the specific child and family, rather than applying potentially misunderstood presumptions. Additionally, Independent Children’s Lawyers now generally have to meet with children over 5 to hear their views directly.

Is a ‘prenup’ (Financial Agreement) actually binding in Australia?

Yes, a ‘prenup’ or any Binding Financial Agreement (BFA) made before, during, or after a relationship can be legally binding, but only if it strictly follows the rules set out in the Family Law Act. The most critical rule is that both parties must receive independent legal advice from separate lawyers about the agreement’s effects and fairness before they sign it. The lawyers must then provide signed certificates confirming this advice was given. Even if these steps are followed, a court can still set aside a BFA later if, for example, it was obtained through fraud (like hiding assets), duress, unfair pressure (unconscionable conduct), or if a major change in circumstances (especially regarding children) makes the agreement cause hardship. So, while they aim for certainty, they aren’t completely bulletproof if not done correctly or if circumstances dramatically change.

Where can I get help or more information about family law?

There are many resources available:

• Family Relationships Online: Website (familyrelationships.gov.au) and phone line (1800 050 321) for information, advice, and referrals to services like FDR.
• Federal Circuit and Family Court of Australia (FCFCOA): Website (fcfcoa.gov.au) has forms, guides, videos, and information about court processes.
• Legal Aid: Each state and territory has a Legal Aid commission offering free information and potentially representation for eligible people.
• Community Legal Centres (CLCs): Provide free legal advice and assistance in local communities.
• Private Family Lawyers: You can find accredited specialists through your local Law Society or Law Institute. They can provide tailored advice and representation.
• Services Australia: For all matters relating to Child Support assessment and collection.
• Family Violence Support: Services like 1800RESPECT (1800 737 732) offer counselling and support.
• amica: An online tool developed by National Legal Aid to help separating couples negotiate agreements for parenting and property.