What is Family Law in NSW?
Common Legal Issues Families Face
Divorce (Dissolution of Marriage)
The essentials
- You must show an irretrievable breakdown of the marriage, evidenced by 12 months’ separation (you can be “separated under one roof” with proper evidence). Applications are filed online via the Commonwealth Courts Portal. (fcfcoa.gov.au)
- After your divorce becomes final, you generally have 12 months to start court proceedings for property or spousal maintenance (otherwise, you’ll usually need the Court’s permission to proceed out of time). (fcfcoa.gov.au)
Process (high-level)
- Prepare and file a joint or sole application.
- Serve documents (if sole) and address any “separation under one roof” evidence.
- Hearing is usually on the papers unless issues arise.
- Divorce order takes effect one month and one day after it’s made. (fcfcoa.gov.au)
Practical tip: You don’t have to wait for the divorce to negotiate property or parenting—those can progress in parallel. Just keep the 12-month clock in mind post-divorce. (fcfcoa.gov.au)
Custody & Parenting (Parenting Orders)
Principle: Decisions are based on the child’s best interests (s 60CC), including safety, relationships, views of the child, cultural considerations for Aboriginal and Torres Strait Islander children, and other listed factors. (AustLII)
Pathways:
- Parenting Plan (informal but useful as a record)
- Consent Orders (formal, enforceable)
- Court-determined Orders (if agreement fails)
Pre-action requirement: In most parenting disputes you must attempt Family Dispute Resolution (FDR) and obtain a s 60I certificate before filing, unless an exception applies (e.g., urgency, risk). (fcfcoa.gov.au)
Who’s involved: Family Consultants (court-appointed), Independent Children’s Lawyers in appropriate cases, and FDR practitioners (for mediation). (fcfcoa.gov.au)
Property Settlement
Australian courts apply a well-established four-step approach (from Hickey v Hickey):
- Identify the asset pool (including superannuation and liabilities).
- Assess contributions (financial and non-financial, including homemaker/parenting).
- Consider future needs (income disparity, age/health, care of children).
- Check whether the result is just and equitable overall.
Timing: If married, start property/maintenance proceedings within 12 months of final divorce; for de facto, within 2 years of separation (extensions require leave). (fcfcoa.gov au)
Spousal Maintenance
A party may claim spousal maintenance if they cannot support themselves adequately and the other party has capacity to pay. Orders can be urgent/interim or final and may be time-limited. (Often considered alongside the property settlement within the court’s just-and-equitable discretion.)
Domestic Violence Orders (Safety & Protection)
In NSW, victims can seek Apprehended Domestic Violence Orders (ADVOs) (domestic relationship) or Apprehended Personal Violence Orders (APVOs) (no domestic relationship). Police often apply for ADVOs and provisional orders may be issued quickly; breaches are criminal offences. (police.nsw.gov.au)
ADVOs interact with parenting matters—safety is central to the best-interests assessment and may affect time and changeover arrangements. (See Legal Aid NSW resources for how ADVOs affect parenting.) (Legal Aid NSW)
How the Family Court in NSW Works
One court, two divisions: The FCFCOA has Division 1 (superior division for complex family law) and Division 2 (broad family law filings)—an integrated system designed to streamline pathways and reduce delays. (fcfcoa.gov.au)
Pre-action & filing:
- Comply with pre-action procedures, disclosure, and (for parenting) FDR requirements.
- File via the Commonwealth Courts Portal; the court manages your matter with an early duty list and a pathway to interim and final hearings. (fcfcoa.gov.au)
Timeframes & costs: The court aims to resolve most matters efficiently (complexity varies). Early negotiation and ADR can significantly reduce cost and time. (Attorney-General’s Department)
Alternatives to Court: Mediation & Dispute Resolution
- Family Dispute Resolution (FDR) is compulsory for most parenting disputes before filing; outcomes can be written up as parenting plans or submitted for consent orders. (fcfcoa.gov.au)
- Mediation also helps with property; arbitration can offer a binding decision in financial cases; collaborative practice keeps negotiations interest-based.
- A s 60I certificate records the FDR outcome (attended / did not attend / not appropriate / not genuine effort), and is generally valid for 12 months. (fcfcoa.gov.au)
De Facto Relationships and Family Law
A de facto relationship exists when two people (same or opposite sex) live together on a genuine domestic basis (s 4AA, Family Law Act). The court considers various factors duration, nature of household, financial interdependence rather than any single test. (AustLII)
Rights: De facto partners generally have similar property and maintenance rights to married couples under the federal Act (except in WA for de facto financial cases). Time limit: start proceedings within 2 years of separation (leave is needed if out of time). (Legal Aid NSW)
Choosing a Family Lawyer in NSW
- Accredited Family Law Specialist or substantial FCFCOA experience.
- Clear strategy on safety (ADVO interface), parenting evidence, and property disclosure.
- Transparent pricing (fixed fee scoping for stages; clarity on counsel/expert costs).
- Strong communication and a resolution-first mindset (using ADR where appropriate).
Questions to ask at your first consult
- What’s our best-case, worst-case, most-likely scenario and why?
- What evidence will matter most (for parenting or contributions/future needs)?
- How do we protect safety and manage risk (if family violence is alleged)?
- What’s the timeline and how can we reduce cost/delay (ADR, consent orders)?
FAQs About Family Law in NSW
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How long does divorce take in NSW?
If your application is complete and unopposed, the court can make orders relatively quickly. The divorce order takes effect one month and one day after being made. Property/maintenance claims should generally be filed within 12 months of that date. (fcfcoa.gov.au)
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Do I need mediation before going to court about the kids?
Usually yes—you must attempt Family Dispute Resolution and obtain a s 60I certificate unless an exception applies (e.g., urgency, risk). (fcfcoa.gov.au)
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How do courts decide custody?
By assessing the best interests of the child (s 60CC), including safety, meaningful relationships, and other listed factors. (AustLII)
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What’s the “four-step” property process?
Identify the property pool → assess contributions → assess future needs → ensure the outcome is just and equitable overall (Hickey v Hickey). (Williams Legal)
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I’m in a de facto relationship—do I have the same property rights?
Generally yes (federally). You’ll need to show a de facto relationship (s 4AA) and file within 2 years of separation unless leave is granted out of time. (AustLII)
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How do ADVOs affect parenting orders?
Safety is central to the child’s best interests. An ADVO can influence time, handovers, and conditions in parenting orders; breach of ADVO is a criminal offence. (Legal Aid NSW)
Resources, Checklists & Next Steps
Documents to prepare (property):
- Asset & liability list (including superannuation), 12 months’ bank/loan statements, tax returns, payslips, title/registration records, business financials. Documents to prepare (parenting):
- Current arrangements, school/medical records, communication logs, incident notes, proposed parenting plan.
Authoritative resources (NSW/Australia):
- FCFCOA – Divorce & Applications (filing, portal, forms). (fcfcoa.gov.au)
- FCFCOA – Compulsory FDR (s 60I and exceptions). (fcfcoa.gov.au)
- AustLII – Family Law Act s 60CC (best interests). (AustLII)
- NSW Police – AVO/ADVO (process & types). (police.nsw.gov.au)
- Legal Aid NSW – Property & AVO info (time limits; parenting & AVO). (Legal Aid NSW)
Next steps:
- Book a confidential consult.
- Secure urgent safety measures where needed (ADVO, safe contact). (police.nsw.gov.au)
- Start disclosure (property) and consider early mediation for faster, cost-effective outcomes. (fcfcoa.gov.au)
Quick Takeaways
- Family law NSW covers divorce, parenting, property, maintenance, and safety—handled in the FCFCOA. (fcfcoa.gov.au)
- Parenting outcomes turn on the child’s best interests (s 60CC). (AustLII)
- Property splits follow the four-step method aiming for a just and equitable result. (Williams Legal)
- FDR/mediation is compulsory for most parenting disputes before filing. (fcfcoa.gov.au)
- Time limits: 12 months after divorce (married) and 2 years after separation (de facto) for property/maintenance claims. (fcfcoa.gov.au)
- ADVOs protect safety; breaches are criminal and can affect parenting arrangements. (police.nsw.gov.au)
Conclusion
Family law issues are deeply personal and often urgent—especially when children, housing, and finances are at stake. In NSW, your matter will run through a national framework (the Family Law Act) and the FCFCOA, which expects genuine attempts to resolve disputes early and to keep children’s best interests front-and-centre. Understanding divorce timing, compulsory mediation, the four-step property test, maintenance options, and safety orders (ADVOs) equips you to make confident decisions and avoid preventable delays. If you’re ready to move forward, our team can map a strategy, triage safety, progress parenting or property negotiations, and—when necessary—act swiftly in court. Call to action: Contact Vobis Lawyers for clear, compassionate advice on family law in NSW and a plan tailored to your goals.
Engagement
What’s your biggest question about family law in NSW right now—divorce timing, parenting orders, or property settlement? Drop it in the comments and we’ll point you to the right next step.
References
- Federal Circuit & Family Court of Australia: Divorce overview / How to apply (jurisdiction, filing, timing). (fcfcoa.gov.au)
- Federal Circuit & Family Court of Australia: Compulsory Family Dispute Resolution (s 60I). (fcfcoa.gov.au)
- AustLII: Family Law Act 1975 (Cth) s 60CC (best interests factors). (AustLII)
- NSW Police: Apprehended Violence Orders (ADVO/APVO) (types & process). (police.nsw.gov.au)
- Legal Aid NSW: Property/maintenance time limits & AVO guidance. (Legal Aid NSW)
