Family Law Specialist Accredited by the Law Institute of Victoria (since 1990) Bachelor of Jurisprudence and Bachelor of Laws ~ Accredited FindLaw Feature Writer in Family Law ~ A Founding Member of the Collaborative Law Committee of the Law Institute of Victoria.
We are proud to have an amazing founder like Silvio Auditore. Initially a General Legal Practitioner, he developed an expertise in Family Law very quickly and he was amongst the first family lawyers in Australia to gain recognised accreditation as a Specialist.
Silvio no longer works at the firm, and instead spends his days playing bass guitar in a rock band.
Silvio has represented the Australian Government in international child abduction cases under the Hague Convention and he has a keen interest in complex financial cases, having studied accounting at university level.
He also delivers family law related seminars to lawyers, accountants and MBA students.
Related Articles & Cases
Clients are sometimes confused about which Family Law Court is appropriate to hear their case in Melbourne. This is understandable as there are three separate courts on the same street in Melbourne which have jurisdiction on Family Law related issues.
#1 Magistrates Court of Victoria
233 William Street Melbourne
This is a State Court which has the exclusive jurisdiction to grant Intervention Orders under the Family Violence Protection Act 2008 in situations where people are subjected to family violence. “Family violence” includes threats, physical and sexual abuse, emotional and psychological abuse, economic abuse, damage to property, injury to animals and other threatening, coercive or in any way controlling and dominating behaviour which makes a family member fear for their safety or wellbeing or for the safety or wellbeing of another person.
#2 Federal Circuit Court of Australia (formerly Federal Magistrates’ Court of Australia)
305 William Street Melbourne
The court for custody in Australia is the FCFCOA or the Federal Circuit and Family court of Australia.
The primary objective of the court is to make decisions that are in the child’s best interests, taking into account a variety of factors, such as the child’s age, the character of the child’s relationship with each parent, and the child’s emotional and physical well-being.
This is a Commonwealth (or Federal) Court which has jurisdiction under the Family Law Act and Child Support Acts. It hears Divorce, Property Division, Maintenance, Child Support and Children/Parenting cases.
What Are the Functions of the Court for Custody?
The primary function of a court for custody is to make decisions about the care and custody of children when parents are unable to agree on their own. These courts are responsible for guaranteeing that the child’s best interests take priority in all custody disputes.
Among the specific functions of a custody court in Australia are:
• Making custody orders: The court has the power to make custody orders that determine who will have legal and physical custody of the child. Custody may be awarded to one parent, both parents or a third party.
• Determining parenting arrangements: The court can make orders about parenting arrangements, including the time each parent will spend with the child, the communication that will take place between parents and the child, and other matters related to the child’s care and wellbeing.
• Resolving disputes: If parents are unable to agree on custody arrangements, the court can intervene to help resolve the dispute. Before reaching a final decision, this may involve ordering mediation or other forms of dispute resolution.
• Enforcing custody orders: The court has the power to enforce custody orders if one parent fails to comply with the court’s orders. This may include fining or otherwise penalizing the non-compliant parent.
• Safeguarding the child’s best interests: The court’s primary duty is to safeguard the child’s best interests. This means that the court will consider a variety of factors when determining child custody, such as the child’s age, relationship with each parent, emotional and physical well-being, and any other pertinent factors.
How Does a Court for Custody Work?
Whenever a custody dispute arises, the first stage is typically to attempt a resolution through mediation.
This entails both parents gathering with a trained mediator in an attempt to reach a custody agreement.
If mediation is unsuccessful, the matter may be referred to a court for custody.
Both parents will have the opportunity to present evidence and argue why they should be granted custody of the child in court. The court will also consider the child’s opinion, if he or she is mature enough to have one, and any other relevant factors, such as the child’s relationship with their grandparents and other family members.
The court will then determine the custody arrangements. This may involve granting custody to one parent, granting joint custody to both parents or sending the child with a third party, such as a grandparent or other relative.
It is important to note that the decision of the court is final and legally binding. Failure to comply with the court’s orders may result in severe penalties, such as fines or imprisonment.
When Is There a Need to Go to Court for Custody?
There are several reasons why parents may need to go to court for custody of their child. Here are some common scenarios:
• Disagreements over custody: When parents are unable to agree on custody arrangements, they may need to go to court to have a judge make a decision.
• Safety concerns: If one parent is concerned about the safety or well-being of the child while in the care of the other parent, they may seek court intervention to assure the child’s protection.
• Relocation: If one parent wishes to move to a different state or country with the child, the other parent may object, resulting in a custody dispute that must be resolved in court.
• Parental alienation: When one parent attempts to alienate a child from the other parent, the afflicted parent may seek court intervention to preserve their relationship with the child.
• Domestic violence: If there is a history of domestic violence between the parents or if one parent has concerns about the safety of the child in the care of the other parent due to domestic violence, they may need to seek custody orders that safeguard the child from harm.
How to Contact the Court for Custody?
If you need to contact a court for custody, you can find the contact details for your local court by searching for the FCFCOA online.
Once you have identified the court in your area with jurisdiction over custody matters, you can contact them to learn more about the application process.
Depending on the court and the state or territory in which you reside, the specific procedures for filing a petition for custody may vary.
It is important to note that the process of filing an application for custody can be complex and time-consuming. It is always a good idea to seek legal advice of child custody lawyers and support throughout the process to ensure that your rights and the best interests of your child are protected.
A court for custody is a crucial legal forum for resolving disputes about child custody in Australia. These courts have the power to make decisions that are in the best interests of the child, taking into account a range of factors.
Even though the court’s decision is final, both parents must remember that their primary concern should always be their child’s welfare. By working together and putting their child’s needs first, parents can ensure that the custody arrangements put in place by the court are successful and beneficial for everyone involved.
#3 Family Court of Australia
305 William Street Melbourne
This is also a Commonwealth Court having the same jurisdiction as the Federal Magistrates’ Court detailed above plus exclusive jurisdiction to hear Nullity of Marriage or Validity of Marriage cases. It also hears Appeals from the Federal Magistrates’ Court.
The choice of which of Melbourne Family Law Courts is most appropriate to decide your case is important. There are different procedures which apply in the different courts. Melbourne Family Lawyers can advise as to which Court is best suited for your particular circumstances.
I found all of the staff and family lawyers at Melbourne Family Lawyers to be extremely professional and responsive to my needs during a difficult and protracted Divorce which involved disputes as to the arrangements for my children and the retention of the family home. My ex-husband and his lawyers were very difficult to deal…
S.B. – Albert Park
Marriages are filled with countless challenges and obstacles. Despite a couple’s best efforts, many relationships inevitably fall apart and end up in divorce. This is evident in the most recent divorce statistics in Australia released by the Australian Bureau of Statistics (ABS).
Understanding the divorce statistics in Australia is crucial in helping couples stay together or be better prepared if they decide to part ways. In this blog post, we will discuss Australia’s most recent divorce statistics and their implications on marriage.
Understanding Divorce Laws in Australia
Divorce is legal in Australia, with the Family Law Act 1975 governing separation and divorce proceedings. In Australia, the court practises a “no-fault” divorce process, meaning that partners have no responsibility to provide a satisfying reason for their divorce. The only reason they need to verify is that there is an irreversible breakdown of the marriage.
You and your spouse should meet the following criteria to successfully file a divorce in Australia:
- You and your spouse have been living separately for at least 12 months;
- You are an Australian citizen or resident living in Australia, or
- You consider Australia as your permanent home.
Even if you’re not married in Australia, you can still apply for a divorce if the Australian court recognises your foreign marriage under Marriage Act 1961. You only have to present an English version of your marriage certificate if your original certificate is in your native language.
Latest Divorce Statistics in Australia 2022
Last November 10, 2022, the Australian Bureau of Statistics (ABS) released the official marriage and divorce statistics for 2021 on their official website.
According to the ABS, there were 89,164 marriages registered nationally for the reference year. The ABS stated that this number is below the pre-pandemic figures (113,815) but is higher than Australia’s historically lowest number, which was 78,989 in 2020.
Many factors affected the decline of marriage during the pandemic, such as the following:
- Restrictions on the number of people attending a public or religious ceremony,
- State border closures,
- Financial stress caused by job losses and other economic impacts of the pandemic.
The divorce rate in the country faces a sharp increase compared to the previous year’s figure.
In 2021, the country recorded 56,244 divorces, a 13.6% jump from 49,510 in 2020.
Why was there such an increase of divorces from 2020 to 2021?
Some have attributed it to covid. People were locked indoors with their spouses and obtaining a divorce and a separate residence would’ve been physically challenging given the restrictions around that time.
The Federal Circuit and Family Court of Australia stated that the reason behind this spike is the administrative changes to reduce divorce timeframes and increase finalisation.
The government department mandated this to reduce the growing backlog of divorce applications in the court. The changes included:
- Online lodgement of documents,
- Expedited hearing process,
- Reduced costs for filing and processing paperwork,
- Couples counselling services and support programs.
The Most Common Reasons for Divorce
Divorce is one of the most emotionally challenging experiences any couple can go through. While it is natural to feel overwhelmed, understanding why couples choose to separate can help individuals come to terms with their situation.
Listed below are the most common reasons for divorce in the country:
- Communication problems: Many former spouses report communication issues as the primary source of conflict, leading to an unpleasant environment and a feeling of disconnection. Miscommunication involves not being able to communicate needs, emotions and expectations effectively.
- Loss of connection: Losing touch with their former partner is also reported as a primary source of conflict. This disconnection can occur due to various factors, including physical separation caused by work or lifestyle changes, unresolved disagreements, and lack of trust.
- Infidelity or loss of faith: Cheating or other forms of infidelity is another common cause of divorce. Over time, a lack of trust can lead to the breakdown of a relationship and ultimately end in divorce.
- Physical or emotional abuse: This is also a significant factor leading to the dissolution of marriages. Physical abuse includes hitting, punching or any form of violence. Emotional abuse involves using words to manipulate, threaten and cause fear in one’s partner.
- Financial problems: Another common problem pointed out by most divorcees is economic issues. This could involve disagreements on how to spend, save or invest money. It can also include not agreeing on a budget, leading to long-term debt or overspending.
What To Do if You’re Considering a Divorce
Divorce is the final decision for anyone considering separation.
It is an emotionally challenging process, but there are various ways to minimise its effects on both parties involved. Here are some things you should consider before filing for a divorce:
- Seek professional help: Seeking the advice of experienced lawyers, counsellors, and psychologists can help you make an informed decision. Talking to people with similar experiences can also provide emotional support during this time.
- Consider alternatives: Before pursuing a formal divorce, consider other possible ways to resolve the issue. Alternatives could involve mediation, couples counselling or a trial separation to gain clarity on the situation.
- Set realistic expectations: Make sure that you understand any legal and financial implications of getting a divorce. Set reasonable expectations for the outcome and work towards achieving it.
- Be prepared to compromise: If children are involved, be mindful and remember that both parents will have to agree in their best interests.
Preparation before filing for a divorce is key to a successful and seamless process. If you’ve gone through all these with your partner and are still willing to pursue a divorce, make sure to seek competent legal advice from experienced divorce lawyers.
The Benefits of Having a Lawyer During a Divorce
The divorce process is not a one-size-fits-all solution. Each case is unique, and couples should consider the services of an experienced divorce lawyer.
Here are some benefits of having a lawyer during this complex process:
- Expert advice: A divorce lawyer can provide expert legal advice and help you understand the consequences of your decisions. They can also explain what documents need to be filed to complete the process.
- Protection of rights and interests: Experienced lawyers can help you protect your rights, whether it is during negotiations or defending them in court. They can also provide advice about child custody and parenting arrangements for divorcing couples.
- Additional support: Having a lawyer during this time can bring additional support during this complicated period. They will also ensure that you know your rights and help you make informed decisions.
Divorce is not a decision to be taken lightly, but with the proper preparation and legal advice, it can be easier for individuals going through this process.
There’s no shame in admitting that you need help with a divorce. The divorce statistics in Australia show that most people consult with an expert to help make the process more manageable.
Our team of experienced professionals understands the complexities of this situation and can provide sound legal advice to guide you throughout the entire process.
Our lawyers are available to answer any questions or concerns you may have about your case, so feel free to contact us online or call us directly. We are here to help you navigate this difficult situation and ensure you get the best outcome possible.
The Federal Circuit and Family Court of Australia has stated an increase of reported risk factors in parenting matters from 2021 to 2022.
- There has been a large uptake of parenting matters where parties are claiming either themselves or their children are at risk.
- The Courts initiatives to finalise matters faster has been working.
- Despite this, the influx of reported domestic violence is still on the incline.
The data provided is a shocking revelation showing that there has been a significant increase in the number of parties in the Federal Circuit and Family Court of Australia who allege that there is at least one risk factor present in their case, from 2020-2021 to 2021-2022.
The risk factors present can include child abuse, family violence, drug, alcohol or substance misuse, mental health issues, risk of abduction, and recent threats to harm a child or other person relevant to the proceedings.
From 2020-2021, 79% of parties alleged that there is at least one risk factor present in their case, but in 2021-2022, the percentage of parties alleging the presence of risk factors has increased to 89%.
The percentage of parties alleging two or more risk factors present also increased from 67% in 2020-2021 to 84% in 2021-2022.
Even more concerning is that the percentage of parties alleging three or more risk factors present increased from 58% in 2020-2021 to 77% in 2021-2022 and the percentage of parties alleging four or more risk factors present increased from 44% in 2020-2021 to 66% in 2021-2022
This could be due to an increase in the awareness and reporting of risk factors or an actual increase in the number of cases that involve risk factors. This data is only reflective of the number of parties who allege the presence of risk factors, and not a confirmation of the actual presence of these risk factors.
Domestic violence is a significant issue in Australia, affecting a large number of individuals every year. According to recent statistics, 1 in 6 women has experienced physical or sexual violence by a current or former partner. 1 in 16 men has experienced similar violence.
Additionally, most victims of domestic violence report the perpetrator as being male. 75% of victims report male perpetrators, while 25% report female perpetrators.
The issue of sexual violence is also prevalent in Australia. Overall, 1 in 5 women and 1 in 20 men have reported experiencing sexual violence.
The severity of domestic violence in Australia is further highlighted by the fact that on average, 1 woman a week and 1 man a month is killed by a current or former partner. These numbers demonstrate the urgent need for action to address domestic violence in Australia and support those who have been affected by this issue.
The Federal Circuit and Family Court of Australia have various initiatives in place that is assisting victims of domestic violence. The Court, which was notoriously slow in its process and releasing of judgments, is making progress in reducing its pending caseload and increasing efficiency.
In the past year, the number of final order applications has decreased by 17% or over 3,600 cases.
Judges in Division 2 have also seen a significant reduction in their workload, with docket sizes decreasing by more than 60% from an average of 330 cases in early 2021 to 135 cases at the end of June 2022.
This progress is thanks to increased support from registrars, who have taken on more responsibilities to help the judges focus on the most complex and serious cases.
As a result, judges are now able to spend more time on trials and writing judgments.
The immense focus on dispute resolution prior to a final hearing has been successful, and the numbers are impressive. Since September 2021, registrars have also successfully resolved more than 4,000 disputes through dispute resolution events, with a 55% settlement rate, including many long-pending and entrenched cases.
In 2020-2021, an impressive 80% of matters were resolved prior to trial, meaning that out of all the cases that came before the court, a majority were able to be resolved without the need for a trial. That’s a great result, showing that the court and parties involved were working hard to resolve disputes and get people out of the court system before expensive and time-consuming trials.
But that’s not all, the court has been able to improve even more in 2021-2022 with an even more impressive 84% of matters being resolved prior to trial.
This is a 4% increase from the previous year, which is a great indicator that the court and parties involved are finding even more effective ways to resolve disputes and avoid trials.
It’s an important achievement that helps to minimize the emotional, financial and time cost for the parties involved and helps to reduce the backlog of cases and the pressure on the court system.
The state of Divorce in Australia
In 2021, there were 56,244 divorces granted in Australia.
There were 89,164 marriages across Australia.
The median duration from marriage to divorce was 12.2 years, which means that half of the divorces granted in 2021 were for marriages that lasted less than 12.2 years.
The median duration to separation was 8.4 years, which means that half of the couples that divorced in 2021 separated after 8.4 years of marriage.
This suggests that, on average, couples in Australia are separating relatively soon after their marriages.
It’s important to note that the divorce rate, which is the number of divorces per 1,000 people, has been steadily falling over time. The average divorce rate in 2001 was 2.9 divorces per 1,000 people and it decreased to 1.9 in 2020. However, in 2021, the rate increased slightly to 2.2 divorces per 1,000 people. This could be due to the impact of the COVID-19 pandemic and the associated stress, financial strains and isolation, which could have had a negative impact on relationships and marriages.
It’s also worth noting that the data provided only reflects the number of divorces granted by the court and not the number of couples who are separated or living apart. The number of couples living separately without going through the formal process of divorce could be much higher, and it’s important to take that into consideration when analyzing the data.
While the divorce rate has been decreasing over time, it’s important to note that the data for 2021 suggests that the pandemic may have had an impact on the number of marriages that ended in divorce. It’s important to continue monitoring the data over time to understand the full impact of the pandemic on marriages and divorces in Australia.
When a new significant other is involved in a child custody battle, their relationship with the child may be taken into consideration.
However, the relationship between the significant other and the child will not necessarily be given the same weight as the relationship between the child and their biological parents
Let’s answer some of the questions about child custody significant other.
Can Living With a New Significant Other Affect Child Custody?
Living with a new partner can potentially affect custody arrangements. The impact will depend on the case’s specific circumstances, and whether the new living arrangement would be detrimental to the child’s welfare.
When determining custody arrangements, the court will consider a range of factors to determine what is in the child’s best interests.
One of the factors that may be taken into account is the stability and suitability of the living conditions for the child.
If a parent is living with a new partner, the court will consider how this new living arrangement may impact the child’s welfare.
For example, if the new partner has a history of drug or alcohol abuse, or if they have a criminal record, this may be taken into account when determining custody arrangements.
You will probably be very anxious knowing that you child is living in the same household as a child sex offender. The court would also be concerned about this, and would take immediate steps to potentially remedy this situation.
Can a Parent Leave the Child With the New Partner?
A parent can leave their child with a new partner, but whether or not this is appropriate will depend on the specific circumstances of the case.
If a parent leaves their child with a new partner, the court will consider the suitability of the new partner as a carer for the child.
This will involve assessing the new partner’s ability to meet the child’s needs and provide a safe and stable environment for them.
The court will also consider the parent’s actions in leaving the child with the new partner. If the parent has a history of neglect or abuse, or if they have a history of leaving the child with inappropriate carers, this may impact custody arrangements.
If a significant other has been involved in the child’s life and has formed a close relationship with the child, they may be able to apply for parenting orders under the Family Law Act.
This would involve applying to the Family Court or Federal Circuit Court for orders that set out the arrangements for the child’s care, including where the child will live and how much time they will spend with each parent or significant person.
Can Living With a New Partner Affect Child Support?
Living with a new partner may potentially affect child support arrangements, as it may impact the calculation of child support payments.
In Australia, child support payments are calculated based on a formula that takes into account the income of both parents, the care arrangements for the child, and any relevant factors such as child support agreements or special needs of the child.
The formula does not directly take into account the income of a parent’s new partner, but the new partner’s income may indirectly impact the calculation of child support payments.
If a parent is living with a new partner who has a significant income, the child support agency may take the view that the parent’s living expenses are lower, and therefore they are better able to contribute to the cost of raising the child.
This may result in a reduction in the amount of child support that the parent is required to pay.
However, the impact of a new partner’s income on child support payments will depend on the specific circumstances of the case.
The child support agency will consider a range of factors when determining child support arrangements and will take into account the best interests of the child.
If a parent is living with a new partner and they are concerned about the impact this may have, it is recommended that they seek legal advice from a child custody lawyer.
A family lawyer can provide advice on the potential impact of the new living arrangements in cases of child custody significant other and can help the parent to prepare their case for the child support agency.
Adultery, also known as infidelity, is a common reason for divorce.
While adultery can have a significant impact on the emotional and financial aspects of a divorce, many people are curious about the impact on child custody.
Is adultery a factor in determining who gets custody of the children? Before we delve into the specifics, let us first define adultery.
What Exactly Is Adultery
Adultery is defined as a married person engaging in sexual intercourse with someone other than their spouse.
It is important to note that adultery is not a criminal offence.
What Effects Adultery Has on Child Custody
In child custody cases, adultery is not a factor that is considered. The Family Law Act 1975, which governs family law in Australia, specifically states that “the court shall regard the best interests of the child as the paramount consideration.”
This means that when deciding who gets custody of the children, the court will consider a wide range of factors, including:
- The child’s relationship with each of his or her parents;
- The ability of each parent to care for the child;
- The willingness of each parent to facilitate a relationship between the child and the other parent;
- The wishes of the child, if they are old and mature enough to express them;
- Any family violence or abuse, as well as the consequences for the child.
Also read: How to Determine Child Custody Percentage
How Adultery Has No Impact on Child Custody
It should be noted that adultery does not automatically disqualify a parent from receiving custody of the children.
The Family Law Act is gender-neutral and does not penalize any type of behaviour, including adultery.
Furthermore, because adultery is not a criminal offence, the court cannot punish a parent for it.
If a parent’s adultery has not had a negative impact on the child or their ability to parent effectively, the court’s decision is unlikely to be influenced by it.
The court will always consider what is best for the child and will base its decision on a variety of significant factors.
If you are going through a divorce and have questions about child custody, you should consult with child custody lawyer who can give you advice tailored to your specific situation.