What is ‘family law’?

Contributed by Margie Rowe, Anna Theodore, Rosa Grahame and Elinor Knaggs and current to March 2022

What does this section cover?

A brief overview of the family law system, including Family Dispute Resolution, Family Courts and what you can use the family law system for.

The Family Law Act – what does it cover?

The Family Law Act 1975 first came into law in 1975, but has been amended many times since then. It is a law made by the Commonwealth government so applies to all states and territories, except WA which has its own version of the Act. The Family Law Act 1975 deals with such things as:

• marriage and divorce;
• who children should live with and spend time with;
• how property and finances should be divided;
• Injunctions – whether a person should be prevented from doing something, e.g selling a house, taking a child overseas.

What is not covered under the Family Law Act?

The Family Law Act 1975 does not deal with child support, except for dependent children over 18 and sometimes for step-children. You can read more in Child Support.

The Family Law Act 1975 does not deal with child protection involving government agencies. However, sometimes ACT Child Protection authorities provide evidence in family law cases about the involvement they have had with a child and their family.

While family violence is significant in many family law cases, obtaining a Family Violence Protection Order is usually done in the ACT Magistrates Court using the ACT’s Family Violence Act 2016, and is covered in Family Violence Orders.

What Courts deal with family law matters?

There is now one court that hears family law matters: the Federal Circuit and Family Court of Australia. In Canberra, the court is located on Childers Street at the edge of the Australian National University. The Federal Circuit and Family Court of Australia also has locations in regional areas such as Wagga Wagga and Albury.

The Federal Circuit and Family Court of Australia (FCFC): The FCFC, which previously operated as two separate courts, merged as one administrative structure on 1 September 2021, with the aim of improving the time and cost efficiency of the family law system. The FCFC deals with all family law matters including applications for divorce, property and financial disputes, parenting orders, enforcement of orders and determination of parentage. The FCFC has two divisions:

• Division 1 (a continuation of the Family Court of Australia) which only deals with family law matters;
• Division 2 (a continuation of the Federal Circuit Court of Australia) which deals with both family law and general federal law matters.

Both divisions have specialist family law judges, who are judges with sufficient expertise, knowledge and skills in family law to deal with family law matters, including family violence.

The Magistrates Court: Does have a limited family law jurisdiction, although this is rarely used in Canberra because people can use the FCFC.

What is ‘the family law system’?

The ‘family law system’ usually refers to the FCFC as well as Family Dispute Resolution (FDR) services that assist people to resolve disputes, either before court or during court proceedings. FDR services are provided outside the court system as well as by the courts themselves. Under the FCFC’s new case management pathway, where it is safe to do so, parties are required to undertake FDR within six months of filing an application and bringing a matter to court. This requirement is to encourage parties to resolve their dispute as early as possible and to subsequently reduce the financial and emotional stress of litigating a matter in court.

FDR outside of the Family Courts:

The main providers are:

• Relationships Australia;
• ACT Legal Aid;
• Conflict Resolution Service;
• Family Relationship Centre;
• Private accredited FDR practitioners, such as mediators and lawyers.

FDR within the FCFC:

• Family Consultants: these are usually psychologists, some employed by the Family Courts and others working privately, who will meet with families and provide reports to the Courts;
• FCFC Registrar: convenes Conciliation Conferences in property and financial matters at the Courts.

You can read more about FDR in Coming to an Agreement.

Who can use the family law system?

There are different requirements about who can apply to the FCFC depending on what sort of matter you have. For example you may be:

• applying for a divorce or other orders relating to your marriage;
• applying about children;
• applying about property and finances;
• seeking an injunction or other order that restrains or forces someone to do something.

In each section of this chapter there is information on who can apply to the FCFC.

You should remember that anyone can use out-of-court FDR services at any time.

If you have entered into a Civil Union in the ACT and registered this through with the Registry of Births, Deaths and Marriages, you don’t have to give any further evidence of your de facto relationship, as set out above. You simply need to lodge your registration certificate with the court.