Common questions in family law matters
This page has information about some frequently asked questions in family law matters.
Separation and Divorce
Are there any forms I need to fill out when we separate?
There are no official forms you need to complete when you separate, however you should record the date you separate in your phone or a calendar. If you receive Centrelink payments, you must notify Centrelink of your separation within 14 days.
How do I apply for a divorce in Australia?
A divorce application is filed online via the eCourts Portal. The Family Court of WA website has detailed information on how to apply for a divorce.
Do I have to be separated for 12 months before applying for divorce?
Yes, you must have been separated from your spouse for at least 12 months before you can apply for a divorce.
After separating, you can move back in with your spouse for up to 3 months to try to reconcile. The periods before and after any reconciliation will be counted as one continuous period of separation. These periods must still add up to at least 12 months before you can apply for divorce. The time you spent together trying to reconcile will not count towards the 12-month period of separation.
Can we live under the same roof and still be considered separated?
Yes, the law recognises a ‘separation under one roof’. This is where your relationship has ended, but you still live in the same house with your ex-partner. To be recognised as living separated under one roof, you must live ‘separately and apart’ from your ex-partner. This means that you no longer share a romantic relationship together and you live separate lives. For example, you sleep in separate rooms, have separate finances and pay for your own expenses.
You can apply for a divorce after being separated for 12 months, even if you were separated under one roof for some or all the 12-month period immediately before filing a divorce application. However, you will need to provide the Court with some extra information to show your relationship had ended even though you were living at the same address. The extra information must be provided by filing sworn statements (called ‘affidavits’) with the Court at the time you apply for divorce.
An affidavit providing extra information about the separation must be filed by the person applying for a divorce (or both people if it is a joint application), and from an independent person – for example, a family member, friend, or neighbour who knows about the separation. Each person must write a separate affidavit and you may be requested to attend the divorce hearing if the Court would like to ask for more information.
See Separation | Legal Aid WA and the Family Court of WA website for more detailed information.
Do we need to agree on property and parenting matters before getting divorced?
No. Divorce is a separate application to property and parenting proceedings. A divorce does not sort out issues relating to property or children, and you will need to make those arrangements separately.
What happens if my spouse will not agree to the divorce?
Your spouse does not need to consent to a divorce. If your spouse is not going to cooperate with you in filing a joint divorce application then you should consider filing a sole application. If you apply for a divorce and you meet the requirements and have filed and served your application correctly, then the divorce will be granted even if your spouse does not agree to the divorce.
There are only two reasons someone can object to a divorce:
- You and your spouse had not been separated for 12 months when the divorce application was filed, or
- The Court does not have jurisdiction (power) to grant the divorce.
See more information on the Family Court of WA website
Parenting Arrangements
Is custody still a term used in family law in Australia?
No. Custody is a historical term that is no longer used in Australian parenting matters. The current terms used are “parental responsibility”, “living with” and “spending time with”. The new terms place the focus on the child. Usually when someone says “custody”, they mean who the child will live with and the decision-making power.
What is the difference between parental responsibility and spend time/live with arrangements?
Parental responsibility is the decision-making power for a child on major long-term issues. For example, decisions about where a child lives, where they go to school, their religious and cultural upbringing, and medical procedures.
Spend time/live with arrangements are about how much time a child will spend with each parent (or other important people in their lives).
See Parental responsibility | Legal Aid WA for more information.
How are arrangements in the best interests of the child decided?
There are six considerations that the Family Court will take into account when deciding what arrangements are in the best interests of a child. Those are:
- what arrangements will promote the safety of the child and each person who cares for the child (including safety from family violence, abuse, neglect, or other harm),
- any views expressed by the child,
- the developmental, psychological, emotional and cultural needs of the child,
- the capacity of each person who has (or is asking to have) parental responsibility for the child to provide for the child's developmental, psychological, emotional and cultural needs,
- the benefit to the child of being able to have a relationship with the child's parents, and other significant people in their life, where it is safe to do so, and
- anything else that is important to the individual situation of the child.
For an Aboriginal or Torres Strait Island child, the Court must also consider their right to enjoy their culture. This includes having the opportunity to connect with and maintain their connection with members of their family and their community, culture, country and language. The Court must also consider the likely impact that any proposed order may have on that right.
For more information see Best interests of children | Legal Aid WA.
Do I need to have parenting orders about the care of my children?
No, there is no requirement to have parenting orders.
You and the other parent can agree on arrangements for your children without needing to enter into a formal agreement or get parenting orders.
Alternatively, you may choose to make a parenting plan with the other parent if you would like to have something in writing or obtain parenting orders to have a legally enforceable agreement in place.
What is a parenting plan and is it legally enforceable?
Parenting plans are written agreements made between parents after separation. They set out how a child will be cared for, including the time the child will spend with each parent, and other parenting matters such as how decisions will be made.
Parenting plans are not lodged with the Family Court and are not legally enforceable.
For more information on Parenting Plans see Types of agreements | Legal Aid WA.
Do I need to go to court to arrange parenting orders?
If you and the other parent agree on arrangements for your children and you both want orders in place you can make an application to the Family Court for consent orders. You can apply to the Family Court for consent orders by completing and lodging a Form 11 Application for Consent Orders.
See the Family Court’s website for information about applying for Consent Orders.
If you and the other party cannot agree on the arrangements for your children, you will generally need to attend family dispute resolution first before applying to the Family Court for orders. You should contact Legal Aid’s Infoline on 1300 650 579 to get family law advice before taking the next step.
Can I stop my ex from seeing the kids if I think it is unsafe?
The Family Court prioritises the protection of children and their carers from harm including, but not limited to, family violence, abuse and neglect.
If you have concerns about the safety of a child living with or spending time with their parent (or any other significant person) then you should contact Legal Aid’s Infoline on 1300 650 579 to get urgent family law advice.
How do I apply for a recovery order if my child has been taken without my consent?
A recovery order application can be filed with the Family Court of WA on the eCourts Portal of WA Monday to Friday, 9 am to 4 pm. In emergency situations outside of these hours you can call Crisis Care for assistance on 1800 199 008.
It is important to act quickly. If you do not act quickly and take steps to try and have your child returned to you, it may be difficult to get a recovery order from the Court. Typically, a recovery order application should be made within a couple of days of a child being removed or failing to be returned.
Legal Aid WA can give legal advice about recovery orders and in some situations provide assistance, including help with urgent court applications.
We have a duty lawyer service located at the Family Court of WA in Perth which provides Family Advocacy and Support Services (FASS) including legal advice and social support services to people affected by family violence. The duty lawyer service is a free drop-in service (no appointment required), available Monday to Friday 9am to 4pm, which can help with urgent family law problems including recovery orders.
See Recovery orders | Legal Aid WA and Get help at court | Legal Aid WA for more information.
Property Settlement
How is property divided after separation?
The Family Court generally follows a five-step process when deciding how assets and liabilities will be divided:
- Working out what property there is (assets and liabilities) and the value of the property,
- Deciding if there should be a property settlement,
- Looking at the contributions each person has made (this includes financial, non-financial, homemaker and parent contributions)
- Looking at the current and future needs of each person, and
- Checking the property settlement is 'just and equitable' (fair).
For more information see Property settlements - How the Family Court decides | Legal Aid WA.
Is everything split 50/50 in a property settlement?
There is no automatic 50:50 split in property settlements.
Do de facto couples have the same rights as married couples in property disputes?
Yes. For more information see De facto relationships | Legal Aid WA.
Is superannuation included in property settlement?
Yes. Superannuation entitlements are treated as "property" and can be split between separating parties at the time of a property settlement. This applies to both married and de facto couples.
See the Family Court of WA website for more information.
How long after separation do I have to start my property settlement?
Married couples
You must apply for property settlement orders within one year of your divorce becoming effective. A divorce becomes effective one month and one day after the divorce order is made. After this time, you will need the Court’s permission to apply for property settlement orders.
De facto couples
You must apply for property settlement orders within two years of your separation. After this time, you will need the Court’s permission to apply for property settlement orders.
There is no guarantee the Court will grant special permission for you to lodge an application for property settlement orders out of time. You should get legal advice about the chances of being granted this permission before making any application to the Court.
For more information see the Family Court of WA’s website
Child Support
How is child support calculated in Australia?
In Australia, Services Australia is the child support agency. They use a formula to work out how much child support someone should pay. The formula takes into account:
- each parent's income, basic living expenses and other financial obligations,
- how much time each parent has the children in their care, and
- the number of children, their ages and their needs.
For more information see Payments for children | Legal Aid WA.
Can we make a private child support agreement without involving Services Australia?
You and the other parent or carer may decide to have an informal arrangement where you 'self-manage' how much child support will be paid and how and when payments will be made. The agreement does not have to be registered with Services Australia and you will not have a child support assessment.
It is important to know that if you are the payee parent/carer who is receiving child support payments and you decide to 'self-manage' child support arrangements, you will only receive the base rate of Family Tax Benefit Part A (if you are receiving a benefit).
Private child support arrangements can be complex and it is a good idea to get legal advice before entering into this type of agreement. Legal Aid WA does not currently provide advice on general child support matters, but you can contact Redgum Justice for help.
If you feel pressured by the other parent into not seeking child support, please call the Child Support Enquiry Line on 131 272 and ask to speak to a social worker.
What can I do if the other parent is not paying child support?
If there is an assessment in place and the payer parent stops paying, then you need to call the Child Support Enquiry Line on 131 272. Services Australia has powers to recover overdue child and spousal support.
If you have an informal arrangement for child support and the payer parent stops paying, then you might need to consider applying for a formal child support assessment which can be done online.
If you are worried about your safety or the safety of your family if you seek child support, you can:
- call the Child Support Enquiry Line on 131 272 and ask to speak to a social worker about your situation; or
- go to a Service centre and ask to speak to a social worker.
How do I change my child support assessment?
Your child support assessment may change if:
- The children’s care arrangements change,
- One or both parents’ income changes,
- One of the parents has a child with someone else or both parents have another child together,
- One of your children starts living with a partner, or
- One of your children dies.
It is important to report any changes to Services Australia (Child Support) because if you do not report it:
- you could be paid the wrong amount of child support,
- you could get an overpayment and have to pay it back, or
- you could get behind with your payments and build up a debt.
You can report changes to your circumstances:
- online if your Child Support account is linked to your myGov,
- online via the Express Plus Child Support mobile app, or
- by calling the Child Support Enquiry Line on 131 272.
In special circumstances, you can apply to Child Support to have your assessment changed. Simply being unhappy with the amount of child support is not a valid reason to apply to change it. There are 10 reasons why Child Support might change your assessment and you must provide evidence showing that at least one of them applies. The 10 reasons are:
- The costs of raising the child are significantly affected by the high costs of spending time or communicating with the child – for example, because of transport, accommodation and/or phone call costs.
- The costs of raising the child are significantly affected because of their special needs – special needs can include a physical, mental or learning disability, as well as a special talent or ability. This cannot include any costs you get back from rebates, refunds or allowances.
- The costs of raising the child are significantly affected because the child is being cared for, educated or trained in the way both parents intended – for example going to a private school.
- The child support assessment is unfair because of the child’s income, earning capacity, property or financial resources.
- The child support assessment is unfair because you have paid or transferred money, goods or property to your child, the receiving parent or a third party, for the child’s benefit.
- The costs of raising the child are significantly affected by the parent or non-parent carer’s childcare costs, and the child is under 12 years of age.
- Your necessary expenses significantly reduce your capacity to support the child – for example, you may have high medical costs.
- The child support assessment is unfair because of the income, earning capacity, property or financial resources of one or both parents.
For more information on special circumstances, visit Services Australia’s webpage on Changing your child support assessment in special circumstances
Family Violence
What legal protections are available for people experiencing family violence?
If you are worried about your safety because of a current or ex-partner, or another family member, you may wish to consider applying for a Family Violence Restraining Order (“FVRO”). An FVRO can include orders restraining a person from coming near you, your house, your place of employment or where you study.
The Family Court has the power to make personal protection injunctions to restrain a person from doing certain things. For example, stalking or intimidating you, contacting you, or coming near you. The Family Court can also make injunctions for the protection of a child, a parent or someone else involved in the child's life.
If there is a current Family Court case, you can ask the court to make an FVRO protecting you from your ex-partner or another person involved in the case. However, in most cases the Family Court will require you to go to the Magistrates Court to apply for an FVRO.
If you have a child protection case in the Children's Court you can ask the Children's Court to make a restraining order against another person in the case (or a person who is giving evidence in the case).
For more information see Orders to help keep you safe | Legal Aid WA.
What is a Family Violence Restraining Order (FVRO)?
An FVRO is a court order that makes it unlawful for a family member to do certain things. For example, stalking or intimidating you, contacting you, or coming near you. You can apply to the court for an FVRO against a family member if you need protection. The court can also make an FVRO to protect children from being exposed to family violence.
If someone breaches the conditions of an FVRO it is a criminal offence.
For more information see Family violence restraining orders (FVROs) | Legal Aid WA.
Where can I get legal help if I am experiencing family violence?
Legal Aid’s Domestic Violence Legal Unit (DVLU) provides legal assistance and social support services to women, children, and men in same sex relationships about family violence issues. DVLU can provide legal advice and assistance before matters are in court. DVLU also runs a duty lawyer service at Perth Magistrates Court between 9:00 am and 1:00 pm, Monday to Friday.
DVLU duty lawyers can help with:
- Advice and representation to get an FVRO
- Advice and limited representation if you come to court for a contested FVRO case, and
- Representation if your FVRO case is listed for an FVRO shuttle conference.
For more information see Get help with restraining orders | Legal Aid WA.
How does family violence affect parenting arrangements?
The Family Court will take into account any history and risk of family violence when dealing with parenting matters. The Court takes protecting people and children from harm, abuse, neglect and family violence very seriously.
In cases where there are allegations of family violence or abuse, the Court may decide it is in the best interests of the child to:
- not spend any time with the parent, or
- spend supervised time with the parent, or
- spend time with the parent with other protective measures in place - such as handovers in a public place or supervised handovers.
- order a parent/s to complete a family violence program or counselling.
For more information see Family violence and family law | Legal Aid WA
Going to Family Court
Do I need a lawyer to go to Family Court?
No. A lot of people self-represent in court. There are useful guides such as the Family Court’s Self Represented Litigants Handbook for property and parenting matters.
The Family Court has information on its website about which documents you need to file.
Legal Aid WA can give legal advice at court for urgent matters and matters in court listed that day. Legal Aid’s duty lawyer service located at the Family Court of WA in Perth provides Family Advocacy and Support Services (FASS) including legal advice and social support services to people affected by family violence. The duty lawyer service is a free drop-in service (no appointment required) and available Monday to Friday, 9:00 am to 4:00 pm.
What happens at a family law court hearing?
It depends on the stage of your matter. You will likely have various court dates before your matter is finalised. There are various court events such as directions hearings and interim hearings and conferences conducted by Family Consultants at the Court such as Case Assessment Conferences.
For more information on parenting hearings see Parenting Cases.
For more information on property hearings see Property and Financial Cases.
What if I cannot afford a lawyer – can I get legal aid?
Not everyone is entitled to a grant of legal aid. Legal Aid WA has strict funding guidelines.
Grants of aid may be available in the following circumstances:
- Applications for parenting orders in the Family Court;
- Protection and Care matters in the Children’s Court, and some pre-birth signs of safety meetings;
- Restraining Order applications involving family violence; and
- Family Dispute Resolution conferences about children or property issues.
Applications for a grant of aid are normally assessed against three tests:
- A matter test – which looks at your type of legal problem and whether it fits within Legal Aid guidelines and priority categories.
- A means test – which is based on your income and assets, and your ability to pay for a lawyer.
- A merits test – which looks at the circumstances of your case, the orders or outcome you are seeking, and whether it is appropriate for Legal Aid WA to help pay for a lawyer.
It is best to get legal advice before you apply for a grant of aid. If you have an appointment for legal advice or get help at court from a duty lawyer, you can discuss whether a grant of aid is likely to be available in your case.
For more information see Applying for a grant of aid | Legal Aid WA.
International Issues
Can I take my child overseas without the other parent’s permission?
If you have court orders
It is important that you check your parenting orders to see if they say anything about overseas travel. You should get legal advice if you are unsure about your orders.
If you have orders for sole parental responsibility and your travel does not impact on the children spending time with the other parent, and there are no orders preventing overseas travel, then you may travel overseas with your child.
If you have orders for equal shared parental responsibility (joint parental responsibility) you will be in breach of your court orders if you travel without the other parent’s consent. This is a serious offence and carries a penalty of imprisonment.
It is best to get any consent in writing (such as a text, email or signed and dated letter).
If you do not have court orders
If the other parent is involved in the child’s life you should try to reach an agreement with the other parent about the proposed overseas travel. This could be done by writing to the other parent (for example, by text or email) and sending them the details of your proposed overseas travel, such as flight details, accommodation and contact details during the trip.
If there are no court orders in place but there is a current Family Court case, and you travel overseas without the other parent’s consent, this is a serious offence which carries a penalty of imprisonment.
If there are no court orders or current court case, and you travel overseas with your child without the other parent’s consent, you will not get into legal trouble. But if you do not return your child to Australia, the other parent (or carer) may start a court case for your child's return.
For more information see Overseas holidays | Legal Aid WA.
What happens if my child is taken or retained overseas without my consent?
Your options will depend on which country your child is in.
Australia is part of the 1980 Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention). This is an international agreement focussed on returning children to the country where they usually live when they have been removed, or retained overseas, without a parent’s consent. The agreement is not in force between Australia and every country and only applies to children under 16 years of age. You can find more information about Australia and the Hague Convention from the Attorney-General’s Department website.
If your child has been taken to a country where the Hague Convention is not in force with Australia, you cannot apply under the Hague Convention for the return of your child. In these situations, you may need to start court proceedings in the overseas country. You should get legal advice about this first.
International Social Service (ISS) Australia specialises in international parental child abduction matters and can give you free legal advice and assistance if your child has been removed from Australia or retained overseas without your consent. You can contact ISS Australia by calling 1300 657 843 or emailing legal@iss.org.au.
How does the Hague Convention work in child abduction cases?
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention) is a multilateral treaty in force between Australia and several other countries. This means it has a dual purpose:
- It provides a lawful process for seeking the return of abducted children to their home country.
- It can assist parents to contact or get access to children who usually live overseas.
If you believe your child has been removed from Australia or retained overseas without your consent and they are in a Hague Convention country, you can apply to the Australian Central Authority (ACA) for the return of your child to Australia. If the ACA accepts your application, it will refer it to the relevant Overseas Central Authority. If the Overseas Central Authority accepts your application, it will lodge the request in the overseas court on your behalf. The overseas court will then decide whether to make an order for the return of your child to Australia.
For more information see the Guide for applicants - Applying for the return of a child under the Hague Convention.
A PDF version of this webpage is available here.
Reviewed: 3 July 2025.