A legal guide to understanding the family court system
Family law regulates legal obligations and responsibilities of couples who marry, live together as de facto partners or have children together. Family Law can apply at any time in the relationship – including before, during and after the relationship.
Issues covered by family law
Australia's family law system helps people resolve legal issues that arise from a family relationship. Such issues, include:
- living arrangements and time a child spends with parents, a grandparent or any other person concerned with the care, welfare and development of a child
- the issues concerning the care, welfare and development of a child
- the property and financial arrangements between a couple: before, during and after a relationship
- the financial support from one member of a couple to the other after a relationship ends – spousal maintenance
- any financial support for children after a relationship ends – ie child support or child maintenance
- any financial support for adult children after a relationship ends – ie adult child maintenance
- ending a marriage – ie divorce/annulment.
The first step to resolving a family law issue – alternative dispute resolution
The family law system encourages people to agree on arrangements without going to court. It requires that they participate in alternative dispute resolution before commencing court proceedings.
- For parenting cases, parties must attend a Family Dispute Resolution conference before filing an application to seek parenting orders from the Court. There are exceptions including if there is family violence as detailed below.
- For property and financial cases:
- before filing an application in the Family Court, parties must follow the procedures set by the Court Rules (pre-action procedures as explained below)
- before filing an application in the Federal Circuit Court, parties are encouraged (although are not strictly required) to attempt to reach an agreement via various methods (similar to the pre-action procedures required by the Family Court).
Family dispute resolution conference
A Family Dispute Resolution conference (FDR conference) is an opportunity for parents to discuss, and attempt to reach, an agreement about the living arrangements or any issues concerning their children. A neutral person, called a FDR practitioner (usually a trained social worker, counsellor or lawyer), assists in this process.
Exceptions to the requirement to attend a FDR conference include if:
- there has been abuse of a child by one of the parties
- there would be a risk of abuse of the children if there was a delay in applying to the court
- there has been family violence by one of the parties
- there is a risk of family violence by one of the parties
- the parties have reached agreement and wish to formalise the agreement in a court order (ie a consent order as detailed below)
- there has been an alleged contravention of a parenting order
- there is a circumstance of urgency
- one or more of the parties is unable to participate effectively in the FDR conference (because of any incapacity, physical remoteness from dispute resolution services or some other reason).
You can arrange a FDR conference either via a private FDR practitioner or via a government subsidised agency.
Visit familyrelationships.gov.au or call 1800 050 321 to find out more about dispute resolution and registered providers in your area.
The pre-action procedures require that before filing a court application in relation to a property or financial issue, parties must:
- participate in dispute resolution, such as negotiation, conciliation, arbitration and counselling
- exchange a notice of intention to claim and explore options for settlement
- comply with their duty of disclosure – ie provide the other party with copies of all documents relevant to their case.
The requirement to participate in alternative dispute resolution must be followed unless a party can demonstrate:
- an urgency
- any allegations of family violence
- any allegations of fraud
- a genuinely intractable dispute
- a person would be unduly prejudiced or adversely affected if notice is given to the other person (in the dispute) of an intention to start court proceedings
- a time limit is close to expiring
- a dispute about the existence of a de facto relationship
- any potentially serious consequences if parties do not comply with these requirements – eg the court may order one person to pay all or part of the legal costs of the other person.
Who can help me?
If you have a family law issue, you can seek assistance from:
- a relationship counsellor or family consultant (see separate brochure)
- a family lawyer.
Who is a family lawyer?
Family lawyers represent people in resolving family law disputes via alternative dispute resolution or, if unsuccessful, in court. These practitioners have a complex set of skills that includes a thorough knowledge of state and Commonwealth law and court rulings, an understanding of commercial, taxation and property law, and the ability to conduct court matters, when necessary.
Separation can be an upsetting experience for everyone involved. Parties need to consider important decisions about the future care of children, property and spousal maintenance. Working through these issues can be a challenging process.
If a person is considering separation or has separated, it is advisable that they seek legal guidance. A family lawyer can help a party to understand their legal rights and responsibilities and also explain how the law applies to their circumstances.
Family lawyers play an important role in assisting parties to reach an agreement. They provide the necessary advice to help each party to make informed decisions — often without the need to go to court. They may also alert their clients to issues they may not have considered.
The Queensland Law Society can refer a party to an accredited specialist family lawyer who has successfully completed an advanced, peer-reviewed assessment program in family law and who is highly skilled in this area.
What to do if you reach an agreement about a family law issue
It is strongly recommended that you formalise any agreement in a written document to ensure that you and your family have certainty for the future.
A number of different types of documents can formalise an agreement about a family law issue, depending on your circumstances.
- For a parenting case:
- A parenting plan
- A court order – referred to as a consent order
- For a property/financial case:
- A financial agreement
- A court order – again referred to as a consent order
- For a child support / child maintenance issue:
- A court order (if linked to another family law issue)
- A limited child support agreement
- A binding child support agreement.
A family lawyer can help you to prepare any of the above listed documents.
If you can’t reach an agreement – court processes
If the parties cannot reach an agreement, they may consider applying to the court for appropriate orders. Going to court can be stressful, expensive and time-consuming. Sometimes, however, it is the only way to resolve a dispute. The court that you attend depends on the matter you are seeking to resolve. A family lawyer can advise the parties.
Even when an application for a court order has been filed, it is still possible at any time for the parties to reach an agreement without the need for a court hearing.
After the court’s decision
Each party who is the subject of a court order is legally bound by it and must comply with it.
Services in the community can help the parties and their families to adjust to, and comply with, a court order:
If a party does not comply with an order or a party wishes to change its terms, they may file an application for enforcement or variation of the order.
The information in this brochure is merely a guide. It is not meant to be a detailed explanation of the law and it does not constitute legal advice. Queensland Law Society recommends you see your solicitor about particular legal concerns.