Australian Government: Attorney-General's Department
Australian Government: Attorney-General's DepartmentAchieving a Just and Secure Society

Family law system

The Australian family law system is made up of a number of different elements with different areas of responsibility. It is much broader than the courts. It also embraces the many service providers and individuals who help families to resolve legal, financial and emotional problems and is centred around family members themselves.

As well as the Family Courts of Australia and Western Australia, the Federal Magistrates Court and State Magistrates courts, they include Centrelink, the Child Support Agency and other government agencies at national and State and local levels, community based organisations, private practitioners, advocacy groups and volunteers.

Government

Federal Government

Commonwealth Parliament has responsibility for making laws in relation to divorce and social welfare. The Family Law Act 1975 (Cth) provides for divorce and the resolution of disputes arising from the breakdown of a marriage, including disputes over the division of property and parental responsibility for children of a marriage. The Family Court of Australia was established to deal with legal issues resulting from the breakdown of marriage.

State and Territory Government

The State and Territory Parliaments have responsibility for making laws concerning disputes between unmarried partners over property and children’s issues.

Local Government

Local Governments also provide a range of services for families in their communities. 

Legislation

Commonwealth family law is primarily set out in the Family Law Act 1975, the Family Law Regulations 1984 and the Marriage Act 1961. 

In 1986-87, the States agreed that all children should be dealt with under the same legislation and have access to the counselling facilities within the Family Court. The Family Law Act 1975 was amended in 1988 to reflect this agreement (although this did not happen in relation to Queensland until 1990). Western Australia, however, did not enter into the agreement and has maintained a separate Family Court of Western Australia which can deal with both Federal and State issues. Unmarried partners in dispute over property are still required to go to State courts.

State and Territory Parliaments can make laws concerning the protection of children considered ‘at risk’ as well as in relation to adoption. Each State and Territory has its own laws, administrative processes and government agencies to provide assistance or intervene where children have been abused or neglected, or when parents cannot provide adequate care or protection for their children.

The family court system

There are a number of courts at the State and Federal level which deal with issues concerning children.

  • The Family Court of Australia and the Family Court of Western Australia deal with divorce, children of a marriage, ex-nuptial children (children born outside a marriage), and issues relating to the guardianship of all children,
  • Local courts in each State and Territory and the Federal Magistrates Court, also deal with divorce, children of a marriage and ex-nuptial children,
  • Most States and Territories have a Children’s or Youth Court which deals with juvenile justice and care and protection issues when State government welfare agencies intervene to obtain court orders to protect a child from abuse or neglect,
  • Adoption matters are heard by judges in the District or County and Supreme Courts of each State and Territory,
    The State and Territory Supreme Courts can hear appeals from their lower courts,
  • The High Court of Australia is the highest appeal court in any of these matters.

Relevant Commonwealth agencies and departments

Commonwealth Government agencies that have responsibility for policies and services affecting families include:

The Community Sector

There are a wide range of services available in the community for people affected by family relationship issues, including many funded by the Australian Government. 

The Research Sector

The academic and research sector supports the other sectors in the Australian family law system by undertaking research and evaluation about families, relationships and children. 

In particular, the Australian Institute of Family Studies is a statutory authority established under the Family Law Act 1975 to promote the identification and understanding of factors affecting marital and family stability in Australia. 
For more information about research and policy centres, see the Australian Institute of Family Studies website and the Department of Families, Community Services and Indigenous Affairs website.