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The family law system

The Australian family law system is primarily made up of federal laws which are in turn implemented by federal courts.

The law across Australia is therefore the same. However, with vast distances between each state and territory, the actual practice of the law sometimes does differ.

The Marriage Act 1961 (Cth) is, not surprisingly, the law that deals with marriage.

The Family Law Act 1975 (Cth) is the main law that deals with issues that arise following separation, such as divorce and the division of the property of married or defacto couples. It also deals with arrangements to be made for children.

The Child Support (Registration and Collection) Act 1988 and the Child Support (Assessment) Act 1989 are the laws that deal specifically with the financial support to be provided for children by parents who have separated. For more information about child support, see CHILD SUPPORT.

See also our booklet Family Law and You available from our Publications page.

Which court?

Both the Family Court and the Federal Circuit Court deal with:

  • parenting orders for children
  • child support or other issues arising regarding a child’s welfare (e.g. education, religion, medical treatment)
  • determination of parentage
  • maintenance for spouses
  • property disputes between former spouses
  • enforcement and contravention of court orders
  • injunctions

The Family Court deals with difficult and complex cases. It may be more appropriate to apply to the Family Court in cases involving:

  • applications regarding nullity or validity of a marriage
  • international child abduction
  • applications regarding special medical procedures relating to a child
  • applications that have been certified by legal practitioners as complex

The Family Court also accepts applications for consent orders where there are no existing proceedings already before the court [see Family Law Rules 2004 (Cth) r 10.15].

Where a matter is less complex the Federal Circuit Court is the more appropriate court as it deals with cases that are likely to be decided quickly. The Federal Circuit Court deals with less complex family law matters including:

  • applications for divorce
  • applications concerning spousal maintenance
  • property disputes
  • all parenting orders
  • enforcement of orders made by either the Federal Circuit Court or the Family Court
  • location and recovery orders as well as warrants for the apprehension or detention of a child
  • child support
  • determination of parentage
  • recovery of child bearing expenses

The following matters are not dealt with by the Federal Circuit Court:

  • adoptions
  • applications regarding nullity or validity of marriage
  • applications for consent orders where there are no existing proceedings already before the court

The filing fees in the Federal Circuit Court are less than those in the Family Court. For a list of the current filing fees visit their respective websites.

Once you have consented to the Federal Circuit Court hearing your matter you cannot withdraw and apply to the Family Court. However, the Federal Circuit Court can refer complex matters to the Family Court.

If you are not sure in which court you should apply, you should seek legal advice.

Family dispute resolution

The Family Law Act 1975 (Cth) makes family dispute resolution (which may take the form of counselling, mediation, conciliation or arbitration) compulsory before applying to the Court for parenting orders. As a result, family dispute resolution providers and practitioners play a major role in the family law system. Even though it is not compulsory to attempt family dispute resolution before applying to the Court for property orders, it can often prove useful.

For more information about family dispute resolution, see:

For a list of providers in South Australia, see the Family Dispute Resolution Register maintained by the Commonwealth Attorney-General's Department.

Counselling and mediation

Counsellors give advice and assistance to couples who are considering separation or who are finding it difficult to cope with separation. Counselling may help resolve a problem without going to court.

Mediation is another way separating couples can resolve disputes without going to court or continuing with court. Mediation is a voluntary process and works best when both sides are on an equal footing - it may not be suitable where there has been family violence or where both people do not feel totally safe. Sometimes, but not always, lawyers can be involved in mediation and this can help to keep both sides on an equal footing.

The role of a mediator is to help the parties discuss issues, consider options and work out agreements that suit them both. Mediators do not give advice so it is important to get legal advice before going to mediation.

A mediated agreement may be registered with the court to make it legally binding. This is done using the Family Court Consent Order Kit. It is advisable to have a lawyer prepare the form or, at the very least, to obtain independent legal advice about the proposed terms of the agreement.

Judicial Mediation in the Federal Circuit Court

From 1 January 2019, judges of the Federal Circuit Court may take applications from the parties for judicial mediation. It is expected that parties will first exhaust all mediation alternatives before applying for judicial mediation. Judicial mediation may be suitable for property disputes and/or parenting disputes where there is no allegation of serious risk or family violence. A different judge would be appointed to conduct the mediation. If the dispute does not resolve at judicial mediation, the case will go back to the original judge for further directions and, if required, trial [see Federal Circuit Court of Australia, Practice Direction 1 of 2019 Judicial mediations in family law matters].

Court rules and registry

The Federal Circuit Court and the Family Court both hear family law matters. In this sense, they are both "Family Law Courts".

The procedures that must be followed and the forms that must be used depend on which court you apply to. The Family Court applies the Family Law Rules 2004 (Cth) and the Federal Circuit Court applies its own Federal Circuit Court Rules 2001 (Cth), as well as the Family Law Rules 2004 (Cth) in part and where appropriate [see Family Law Act 1975 (Cth) s 4 "applicable Rules of Court" and Federal Circuit Court Rules 2001 (Cth) r 1.05 and Sch 3 Pt 1]].

The registry of the Family Law Courts is located at:

Roma Mitchell Commonwealth Law Courts Building

3 Angas Street, Adelaide SA 5000

GPO Box 9991 Adelaide SA 5001

DX Box : DX 156 Adelaide

Phone: 1300 352 000

Fax: (08) 8219 1625

Phones available: 8:30am - 5pm

Counter open: 8:45am - 4:30pm

General information about the Family Law Courts is available on the websites of the Family Court and Federal Circuit Court and information about a party's own matter can be obtained by calling the Family Law Courts National Enquiry Centre on 1300 352 000.

The Legal Services Commission has a free duty lawyer and social support service at the Family Law Courts Adelaide Registry - the Family Advocacy and Support Service (FASS). This is staffed during Court hours Monday- Friday.

Phone: (08) 8111 5300.

    Which court?  :  Last Revised: Thu Jul 26th 2018
    The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.