Principles of the Family Court of Australia

Family matters such as separation or divorce can be difficult to deal with especially when there is dispute regarding the division of property or care of children. Obtaining proper advice and understanding the principles of the Family Court of Australia can help to reduce the stress and anxiety in dealing with these matters.

Best Interest of the Child remains the Paramount Consideration

If a child or children are involved, the best interest of the child or children remains the paramount consideration of the Court in making any decisions regarding their care and support.

Section 60CC of the Family Law Act (Cth) (‘the Act’) focuses on the rights of children and the responsibilities that each parent has towards their children where it aims to ensure that children can enjoy a meaningful relationship with each of their parents and are protected from harm.

The Family Law Act states that:

• both parents are responsible for the care and welfare of their children until the child or children attain the age of 18, and
• there is a presumption that arrangements which involve shared responsibilities and cooperation between the parents are in the best interest of the child or children.

In general, it is often in the child’s best interests to have a loving relationship with both parents but arranging such relationships can be challenging when resolving a child custody dispute.

The Court has two primary considerations when determining what is in the best interests of the child:

1. The benefit to the child of having a meaningful relationship with both parents; and
2. The need to protect the child from psychological or physical harm from preventing exposure or subjection to abuse, neglect or family violence.

The Court will place a greater weight on the second consideration, being the necessity to protect the child from harm.

Fair and Equitable Split

In deciding the division or assets and properties between a couple who has separate or divorce, the Courts will consider the principle of fair and equitable. After the breakdown of a marriage (See Sections 79(4) and 75(2) of the Act) or de facto relationship (see Sections 90SM(4) and 90SF(3) of the Act), the Courts have the power to make changes to parties’ property interests if it is satisfied that it is just and equitable to do so.

When deciding whether it is just and equitable, the Court will need to:

• work out each party’s assets and debts and what they are worth
• look at the direct financial contributions by each party to the marriage or de facto relationship such as wage and salary earnings
• look at indirect financial contributions by each party such as gifts and inheritances from families
• look at the non-financial contributions to the marriage or de facto relationship such as caring for children and homemaking, and
• future needs where a court will consider matters such as age, health, financial resources, care of children and ability to earn.

The way assets and debts will be shared between parties will depend on the individual circumstances of the family. Your settlement will likely be different from others you may heard of.

If you would like to have a Binding Financial Agreement, Consent Orders or Child Support Agreement drafted or find out more about your rights and options, Straits Lawyers are here to help. Simply send us an email at info@straitslawyers.com or give us a call on 8410 9069 to arrange an appointment for an online interview.

Please note that this article does not constitute legal advice and Straits Lawyers will not be legally responsible for any actions you take based on this article.