Family law in Australia is mainly governed by the Family Law Act 1975 (Cth). Divorce, property and parenting cases are heard in the Federal Circuit and Family Court of Australia. Apprehended domestic violence orders and care and protection matters are dealt with in the NSW courts.
Divorce
To apply for a divorce you must have been separated for at least 12 months, and there must be no reasonable likelihood that you will get back together. You can be separated while living under the same roof, but you will need extra evidence. If you have children under 18, the court must be satisfied that proper arrangements have been made for them. We prepare and file the application and advise you on service and the hearing.
A divorce ends the marriage. It does not divide your property or decide arrangements for children. Those are separate matters.
Property settlements
A property settlement divides the assets, debts and superannuation of a couple after separation. The court generally considers:
- What there is. All assets, liabilities and superannuation of both parties, whoever owns them.
- Contributions. Financial and non-financial contributions, including as a homemaker and parent.
- Future needs. Age, health, income, earning capacity and care of children.
- Fairness. Whether the proposed division is just and equitable overall.
Most settlements are reached by agreement and formalised by consent orders or a binding financial agreement. If agreement is not possible, we can take the matter to court.
Time limits: married couples must start property proceedings within 12 months after their divorce takes effect. De facto couples must start within two years after separation. Outside those limits you need the court’s permission.
Children
In parenting matters the court’s first concern is the child’s best interests. Before applying to court for parenting orders, you generally need to attempt family dispute resolution (mediation) and obtain a certificate, unless an exception applies, such as family violence or urgency. Arrangements can be recorded in a parenting plan or in consent orders made by the court.
De facto relationships
De facto couples, including same-sex couples, have broadly the same rights to a property settlement as married couples. Whether a de facto relationship existed, and when it ended, can itself be in dispute. We advise on both questions.
Financial agreements
A binding financial agreement can be made before, during or after a marriage or de facto relationship. Each party must receive independent legal advice before signing. We prepare agreements and give that advice.
Apprehended domestic violence orders
An ADVO is made by the Local Court under the Crimes (Domestic and Personal Violence) Act 2007 (NSW). We act for people who need protection and for people responding to an application. Breaching an ADVO is a criminal offence, so a defendant should get advice before agreeing to orders.
Children’s Court: care and protection
When the Department of Communities and Justice takes action to protect a child, the case is heard in the Children’s Court under the Children and Young Persons (Care and Protection) Act 1998 (NSW). We represent parents in these proceedings, including as Legal Aid NSW panel solicitors. Danny Lagopodis has given presentations on care and protection law for the Law Society of NSW and Legal Aid NSW for more than 20 years.
Frequently asked questions
Do we have to go to court?
No. Most family law matters are resolved by agreement. Going to court is the last option, used when agreement cannot be reached or when urgent protection is needed.
Does a 50/50 split apply automatically?
No. There is no automatic equal split of property, and no automatic presumption of equal time with children. Each case turns on its own facts.
Can I get legal aid for a family law matter?
Legal aid is available for some family law matters, particularly those about children. We are on the Legal Aid NSW family law and care and protection panels. See legal aid.