Family Law

When a couple decides to separate, establishing the date of separation is a critical first step under the Family Law Act 1975. This date marks the beginning of the required twelve-month separation period before a divorce application can be filed. Separation isn’t solely about living apart — it requires an intention to end the relationship, acting on that intention, and communicating it to the other party. In some cases, couples may still live under the same roof while legally considered separated, provided there is clear evidence that the relationship has ended.

Once the separation period has passed, either party can apply for a divorce on the basis that the marriage has irretrievably broken down. Applications can be made jointly or individually. Joint applications tend to be more straightforward, as they eliminate the need for formal service or response. If children under the age of 18 are involved, at least one parent must attend the divorce hearing to demonstrate that proper arrangements have been made for their care and welfare.

Beyond the divorce itself, separation often brings up complex matters such as property division, parenting arrangements, and financial support. These issues can often be resolved through negotiation or mediation, but where agreement cannot be reached, the court may be required to make orders. Property settlements follow a structured approach, considering the asset pool, each party’s contributions (financial and non-financial), future needs, and what is fair and equitable under the circumstances. The goal of family law is to achieve outcomes that support both parties’ long-term wellbeing and prioritise the best interests of any children involved.

In Australia, child custody is legally referred to as parenting arrangements. The Family Law Act 1975 focuses on the best interests of the child as the paramount consideration. This includes the child’s right to maintain a meaningful relationship with both parents, while also being protected from harm, abuse, or neglect. Courts no longer use the terms “custody” or “access”; instead, they speak of parental responsibility, living arrangements, and time spent with each parent.

In most cases, the law assumes that both parents should share equal parental responsibility, meaning they must consult each other on major decisions about the child’s education, health, religion, and living arrangements. However, equal shared parental responsibility does not automatically mean equal time. The specific parenting schedule will depend on various factors, including the child’s age, needs, relationship with each parent, and practical considerations such as distance and work schedules.

Parents are encouraged to agree on parenting arrangements without going to court — through informal agreements, parenting plans, or consent orders. If agreement can’t be reached, the court may issue parenting orders that are legally binding. The court’s primary goal is to ensure the child’s safety and stability while maintaining positive relationships with both parents wherever appropriate. In high-conflict cases, the court may appoint an Independent Children’s Lawyer (ICL) to represent the child’s best interests in proceedings.