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Alternative Dispute Resolution processes support separating families to resolve their disputes amicably and by agreement while avoiding the expense and stress associated with litigation.

In family law matters, the most commonly used alternative dispute resolution methods are Family Dispute Resolution (FDR) and Mediation. In both FDR and Mediation, parties have the opportunity to vent their concerns and contemplate a resolution to their family law dispute with the guidance of an independent facilitator.

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Divorce is the legal dissolution of a marriage. People often use the term “divorce” to refer to separation and the dividing of assets, however the Courts treat divorce as an independent process. A Divorce Order does not determine issues about property and maintenance or parenting arrangements for the parties’ children. An Application for Divorce is simply a formal application to the Court to legally terminate a marriage between two individuals.

In Australia, there is a no-fault system of divorce. When granting a divorce, the Court does not consider why the marriage broke down, only that the marriage has broken down and there is no reasonable likelihood that the parties will reconcile.

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Following a separation, parenting disputes can occur where parents are unable to reach agreement about practical issues of parental responsibility. Disputes may arise about where the children will live, or the time that the children will spend with a non-resident parent.

Parents may not be able to agree about how to divide the children’s school holiday time and special occasions, which parent should bear responsibility for major decisions relating to the children, or what arrangements to put in place for overseas travel with the children.

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Property settlement in family law is the formal division of assets between two parties following their separation. Property settlement occurs where the parties were married or in an eligible de facto relationship.

Under the Family Law Act 1975, the Family Court and Federal Circuit Court of Australia have the power to make orders altering the interests of the parties in the property of the relationship. The Court exercises a wide discretion in determining an appropriate property settlement so it is important that, following separation, parties seek legal advice about their rights and entitlements in relation to property settlement.

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The law treats same sex de facto couples and married couples in the same way that it treats heterosexual de facto couples and married couples in relation to the division of the property of a relationship.

For the purposes of the Family Law Act 1975 (Cth), a person is in a “de facto relationship” with another person if they are not legally married to each other, not related by family and they share a relationship as a “couple living together on a genuine domestic basis”.

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Spousal maintenance is financial support paid by a spouse or de facto partner to their former partner after the breakdown of their marriage or de facto relationship. Spousal maintenance is often paid in circumstances where one spouse has been dependent on the other for financial support and cannot meet their own financial commitments following separation.

Spousal maintenance is different to child support, and for eligible parties, it is paid in addition to child support.

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The Child Support (Assessment) Act 1989 provides that every parent has a primary duty to maintain their child. Parents often pay or receive child support payments in accordance with an assessment made by the Child Support Agency at the Department of Human Services.

The amount of child support payable is calculated using a formula, which accounts for, amongst other factors, the parents’ respective incomes and the time a child spends with each parent. Parents can apply to the Child Support Agency to administer and enforce child support payments on their behalf.

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Financial Agreements can deal with how property and financial resources are to be dealt with, spousal maintenance, matters incidental to or ancillary to the division of property/spousal maintenance as well as ‘other’ matters.

Financial Agreements in contemplation of a marriage or de facto relationship (commonly referred to as ‘pre-nups’) usually set out how the parties will divide their property if they separate at a later time. 

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If a parent wants to relocate to a place far enough away from their current location that it impacts on the time the other parents spends with the children, the parent wishing to relocate must seek the consent of the other parent to do so. If a dispute arises because the second parent is not willing to consent to the proposed relocation, then the parent wishing to relocate will have to make an application to Court under the Family Law Act 1975 seeking that they be allowed to relocate with the children (“child relocation order”).s

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International Child Abduction refers to the wrongful removal of a child from the country of habitual residence or the wrongful retention of a child outside of their country of habitual residence. In order for a child to be found to have been habitually resident in a country the court generally require the child to have lived in that country for an “appreciable” period of time.

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