The Road to Hell…
is paved with good intentions.

How the Family Court and Federal Circuit Court are supposed to work.
Understanding the basic ideas underpinning the courts gives you a clearer view of the pitfalls and traps. Work arounds are possible with a little forward thinking. So, here’s the best of intentions.

The Family Court in Australia isn’t a normal court like you see in crime shows or civil lawsuits over money. It’s what’s normally called an equity court. That means it doesn’t just follow black-and-white rules or rigid laws like a criminal court would. Instead, it’s focused on fairness—what’s just and right, based on the situation in front of it or it’s supposed to.

So, is the Family Court an Equity Court?

Yes, but not in the traditional sense. Here’s why:

1. Equity Principles Are Embedded
   The Family Court doesn’t operate as a standalone “Equity Court” like in old English systems or State Supreme Courts’ Equity Divisions, but it applies equitable principles to resolve disputes.
   For example:
   

   Injunctions: Stopping a parent from relocating a child without consent.
   Trusts and Property: Dividing assets fairly, even if legal ownership is unclear (e.g., constructive trusts for unmarried couples).
   Best Interests of the Child: Prioritizing children’s welfare over strict legal rights.

   
   
2. Flexible Remedies
   Unlike common law courts that focus on monetary compensation, the Family Court uses orders like:
   

   Specific Performance: Enforcing parenting plans or property settlements.
   Discretionary Powers: Adjusting outcomes based on fairness, like varying spousal maintenance if circumstances change.

   
   
3. Case Management as Equity
   The Federal Circuit and Family Court Rules emphasize efficiency and fairness, requiring parties to attempt mediation before litigation. This aligns with equity’s goal of avoiding unnecessary conflict and cost.

So, when you go to the Family Court—whether it’s about parenting, divorce, or property—it’s not just about who has the better argument on paper. The judge is trying to find a solution that’s fair, not just technically correct. They look at things like intent, circumstances, relationships, what’s best for the child, and whether someone is trying to manipulate the system.

For example, if someone’s playing dirty—like hiding assets in a divorce—the Family Court can step in and say, “No, that’s not fair,” and make orders to fix it. It has the power to override technicalities to make sure people aren’t taking advantage.

Or say you’ve got two parents who split up. One of them, let’s say the mum, has the kids living with her most of the time. The dad wants to see his kids, but the mum keeps coming up with excuses—saying the kids are sick, or she “forgot” about the visit, or she just doesn’t respond. Basically, she’s trying to block contact, maybe out of anger or to get back at him.

Now, if you took that kind of situation to a normal court—like one that only looks at contracts or property—it might be all about, “What does the parenting order say, and did she technically break it?” But in the Family Court, as an equity court, the judge looks at the bigger picture.

The judge might say, “This isn’t just a technical breach of an order—this is one parent undermining the kids’ relationship with the other parent.” The court doesn’t just follow a rulebook—it steps in and asks, what’s fair to the children? What’s in their best interests?
So, the court might do something like change the living arrangements, increase the other parent’s time, or even order make-up time if visits were missed. In some serious cases, the court might fine the parent who’s been blocking contact or even change which parent the kids live with.

That’s why things in the Family Court are less predictable—because the judge has a lot of discretion to do what they think is right, even if it’s not exactly what the law book says in a strict sense.