Family Law Act 1975

Last updated

Family Law Act 1975
Coat of Arms of Australia.svg
Parliament of Australia
  • An Act relating to Marriage and to Divorce and Matrimonial Causes and, in relation thereto and otherwise, Parental Responsibility for Children, and to financial matters arising out of the breakdown of de facto relationships and to certain other Matters ~ (amended); An Act relating to Marriage and to Divorce and Matrimonial Causes and, in relation thereto, Parental Rights and the Custody and Guardianship of Infants, and certain other Matters. ~ (original)
Citation No. 53, 1975 as amended or No. 53 of 1975
Territorial extent States and territories of Australia
Enacted by Australian House of Representatives
Royal assent 12 June 1975
Commenced5 January 1976
Legislative history
Bill Family Law Bill 1975
Introduced bySenator Shayne Murphy
Second reading 29 October 1974
Status: Current legislation

The Family Law Act 1975(Cth) is an Act of the Parliament of Australia. It has 15 parts and is the primary piece of legislation dealing with divorce, parenting arrangements between separated parents (whether married or not), property separation, and financial maintenance involving children or divorced or separated de facto partners: in Australia. It also covers family violence. It came into effect on 5 January 1976, repealing the Matrimonial Causes Act 1961, which had been largely based on fault. [1] On the first day of its enactment, 200 applications for divorce were filed in the Melbourne registry office of the Family Court of Australia, and 80 were filed in Adelaide, while only 32 were filed in Sydney. [2]

Contents

Background

Though the Commonwealth had the power since federation in 1901 to make laws affecting divorce and related matters such as custody and maintenance, it did not enact such national uniform laws until 1961, when the Matrimonial Causes Act 1959 [3] came into operation. The Act continued the fault-based system operating under state authority. Under the Commonwealth law a spouse had to establish one of the 14 grounds for divorce set out in the Act, including adultery, desertion, cruelty, habitual drunkenness, imprisonment and insanity. [4] In reality, the system was very expensive and humiliating for the spouses, necessitating appointment of barristers, often private detectives, collection of evidence, obtaining witness statements, photographs and hotel receipts, etc. Failure to prove a spouse's guilt or wrongdoing would result in a judge refusing to grant a divorce. [5] The Matrimonial Causes Act 1959 was replaced by no-fault divorce system of the Family Law Act 1975.

The Act was first introduced as a Bill on 13 December 1973. Before the Bill became law, it lapsed and was reintroduced on 3 April 1974 with substantial changes. A third reintroduction was made after the Bill lapsed a second time, with the final reintroduction made on 1 August 1974 with additional changes. The Act was contentions due to its reform of divorce laws. The legislation meant divorce could be obtained with one requisite being 12 months separation. A Gallup Poll taken during negotiation of the Bill showed 64% of men and 62% of women respectively supporting these changes. [6]

The Act

The Act was enacted in 1975 by the Australian government, led by then Prime Minister Gough Whitlam. One of the main innovations was the introduction of no-fault divorce. Couples no longer needed to show grounds for divorce, but instead, just that their relationship had suffered an irreconcilable breakdown.

Due to the division of power between the Commonwealth and the Australian states under the Australian Constitution, the Act initially could deal with children born or adopted only within a marriage, it was not until later years that the Act dealt with matters relating to ex-nuptial children. However, the states referred these powers to the Commonwealth and, until the 2006 amendments to the law, were all located under Chapter VII of the Act. For limitations on recognition of de facto couples inside and outside of Australia see Section 51(xxxvii) of the Australian Constitution.

Divorce

For Australian Divorce Law, see Australian family law

The Act revolutionised the divorce law of Australia by replacing the previous fault grounds with the single ground of irretrievable breakdown, established by separation and living apart for a period of twelve months. It also reduced the time for a decree nisi for a divorce to take effect from three months to one month.

Amendments in 2004 abolished the provisions dealing with "decrees nisi" or "decrees absolute" and changed the term dissolution of marriage to divorce. The twelve-month separation requirements remained and the one-month waiting period for a divorce order to take effect remained.

Parenting matters

Best interests of the child

The Act focuses on the rights of children, rather than the rights of parents. The Act requires courts to have regard to the 'need to protect the rights of children and promote their welfare' in any matter under the legislation. [7]

Parenting orders

Part VII of the Act deals with the custody and welfare of children in Australia, regardless of the relationship between the parents. The Part has been amended significantly in 1995, 2006, and 2011.

Children's matters are determined on the basis of who the child will 'live with' and 'spend time with' (terms which were formerly labeled 'residence' and 'contact' respectively). Although the term custody often refers to where children live, the concept was abolished in 1995 with the Family Law Reform Act. The concept of custody gave much wider decision making powers to the parent with whom children lived, than either the concept of 'residence' or 'live with'. Since 1995 both parents legally have the same (but not shared) parental responsibility for children, regardless of where and with whom the children live, until and unless a court makes a different order. [8]

Parental responsibility is the ability to make decisions that affect the day-to-day and long-term care and welfare of the child, and can include things such as what school they attend and what their name is.

The Act does not specify that the person with whom the child is to reside or spend time with must necessarily be their natural parent, and provision is made for anyone 'concerned with the care, welfare or development of the child' to apply to the Court for orders. [9] In all proceedings, the paramount consideration is the 'best interests of the child', and the Court will not make an order that is contrary to these interests. [10] [11]

If there is a dispute about parenting matters and the case is placed before a court, then the Court must apply a presumption that it is in the best interests of children that their parents have equal shared parental responsibility for the children. [12] In practical terms this means that parents must consult one another about major decisions affecting the care of children (but not day-to-day decisions), whereas without that order parents can make decisions together or without consulting each other. The presumption does not apply in circumstances of family violence or there has been any abuse (including sexual abuse) of a child, a parent or any family member living with the child.

There is no presumption of equal time with the child, however, if the presumption of equal shared parental responsibility has not been rebutted, the Court must consider whether it is in the best interests of the child and whether it is reasonably practicable. [13] If the decision is made to not allocate equal time in such circumstances, then the Court is required to consider allocating 'substantial and significant' time instead. [14]

Substantial and significant time includes weekends, weekdays, special days and holidays, and in practical terms usually means more than every second weekend.

The basis on which who the child lives with and spends time with (and how much time is spent) is determined firstly with reference to the best interests principle. [10] What is in the child's 'best interests' is determined with reference to the primary and secondary considerations found under s.60CC, [15] and it is by reference to these factors that argument proceeds in the Federal Circuit Court and the Family Court of Australia. Full custody (a 'live with' order) will usually be awarded to the parent who is better able to demonstrate that they can meet the child's best interests.

Property orders

Part VIII of the Act deals with the distribution of property after a marriage breakdown, and the Court has broad power under section 79 to order property settlement between parties based on a number of factors regarding 'contribution' and 'future needs'.

Because of the limitation of Commonwealth power, until 1 March 2009 the Family Court could adjudicate on a property dispute if it arose out of only a matrimonial relationship. In 2009 the states agreed to refer power to the Commonwealth to include breakup of de facto relationships (including same sex relationships) which was accepted. The changes, passed by the Labor Rudd Government, came into effect on 1 March 2009. Prior to this de facto and same-sex couples did not have the same property rights as married couples under the Act, and so had to rely on their state's de facto relationship legislation. Such claims were often much harder to prove than under the Act, and did not include all the same considerations as under the Act, and could result in a more uneven or diminished distribution of property than would otherwise be possible.

It is necessary to bring a property claim before or within 12 months of the divorce occurring or two years of separation for de facto couples, although unlike property proceedings in various other countries, the two usually occur separately.

A standard s.79 property adjustment, [16] has 4 steps:

1. Identify the marital assets and ascribe a value to them
The assets which may be distributed under the Act include the totality of the parties' joint and several assets. The amount of property is determined at the date of hearing rather than at the date of divorce, so this can also include property acquired after separation. Superannuation is also a marital asset under s.90MC, but will not be available for distribution until it 'vests'
2. Look at each party's contributions to the marriage under s.79(4)
This section of the Act contains a list of factors by which the Court can determine who contributed what to the marriage. Broadly, the contributions can be taken as financial in nature (for example, paying off a mortgage) or non-financial in nature (for example, taking care of the children). The party which can demonstrate a larger contribution to the marital relationship will receive a larger proportion of the assets.
3. Look at each party's financial resources and future needs under s.75(2) and adjust accordingly
4 The court then considers whether the proposed distribution is just and equitable
After the parties' contributions have been established, a final adjustment is made according to their individual future needs. These needs can include factors such as an inability to gain employment, the continued care of a child under 18 years of age, and medical expenses. This is often used to account for a party which has not shown a great deal of substantive contributions, but will require money to live on as a result of factors largely outside of its control.

More complex questions arise when a party has incurred losses, [17] [18] or when assets are held by trusts. [19]

Other provisions

Section 120 of the Act abolished the actions for criminal conversation, damages for adultery and enticement of a party to a marriage, but it did not change the law relating to breach of promise. The action for breach of promise has been abolished in South Australia. [20]

The Courts

Creation of courts

The Act created the Family Court of Australia, with equal status to the Federal Court of Australia, as a court of record and with both original and appellate jurisdiction. Appeals from the Full Court of the Family Court of Australia (the appellate jurisdiction) are to the High Court of Australia.

In 2000, in a somewhat controversial move, the Australian government created the Federal Circuit Court of Australia as a second court to handle matters under the Act. Appeals from the Federal Circuit Court are to the Family Court of Australia, [21] but its decisions are not considered inferior to the Family Court.

Western Australia has continued to refer its family law matters to the Family Court of Western Australia by virtue of the Family Court Act 1997 (WA).

Powers of the court

The Act gives the Court powers to make orders to restrain domestic violence, dispose of matrimonial property (including resources such as superannuation), parental responsibility, the living arrangements of children, and financial maintenance for former spouses or children.

The Court retains its ability to hand down punitive sanctions in a number of areas where parties do not comply with Court orders. In the most extreme cases, as confirmed by the 2006 Amendments, this can include sentences of imprisonment (up to 12 months), fines, work orders, bonds, and the like. In most cases, however, the most effective method of penalizing a person is to award legal costs against them. In fact, the 2006 Amendments encourage this to be used as a sanction where people make improper or false allegations about someone else before the Court.

Same-sex marriages

The Act recognises the need to preserve and protect the institution of marriage as the union between 2 persons, to the exclusion of all others voluntarily entered into for life. [22]

The Federal Circuit Court of Australia holds jurisdiction to handle the dissolution of same sex marriages (i.e. divorces) through Part VI of the Act. [23]

Other relationships

Polygamous marriages are generally not permitted in Australia. The relevant law prohibits those who are married from proceeding with a second marriage. [24] However, the Act does permit multiple de facto relationships, and also recognises polygamous marriages may be lawfully entered into in countries other than Australia and grants rights under the Act to participants of these polygamous marriages. [25]

De facto couples are also provided for under the Act. [26]

Other provisions

The default position in family law proceedings is that each party pays his or her own costs. The Act also abolished prison as a penalty for maintenance defaulters and imprisoned those held in contempt of the court.

Amendments

The Act has clearly, over time, been one of the most controversial pieces of Australian legislation and has been subject to numerous changes and amendments since its enactment. A number of amendments have reflected the political climate of the times: centre-left Australian governments, such as those led by the Australian Labor Party, strengthened the relevancy of non-financial contribution of the stay-at-home mother in property matters; centre-right governments, such as those led by the Liberal Party of Australia, have furthered the wishes of fathers' groups by extending the rights and responsibilities in negotiating parenting arrangements. The 2006 amendments changed the way matters involving children are dealt with. These included:

See also

Related Research Articles

Family law is an area of the law that deals with family matters and domestic relations.

<span class="mw-page-title-main">Family Court of Australia</span>

The Family Court of Australia was a superior Australian federal court of record which deals with family law matters, such as divorce applications, parenting disputes, and the division of property when a couple separate. Together with the Federal Circuit Court of Australia, it covered family law matters in all states and territories of Australia except for Western Australia, which has a separate Family Court. Its core function was to determine cases with the most complex law, facts and parties, to cover specialised areas in family law, and to provide national coverage as the national appellate court for family law matters.

Child custody, conservatorship and guardianship describe the legal and practical relationship between a parent and the parent's child, such as the right of the parent to make decisions for the child, and the parent's duty to care for the child.

A prenuptial agreement, antenuptial agreement, or premarital agreement, is a written contract entered into by a couple prior to marriage or a civil union that enables them to select and control many of the legal rights they acquire upon marrying, and what happens when their marriage eventually ends by death or divorce. Couples enter into a written prenuptial agreement to supersede many of the default marital laws that would otherwise apply in the event of divorce, such as the laws that govern the division of property, retirement benefits, savings, and the right to seek alimony with agreed-upon terms that provide certainty and clarify their marital rights. A premarital agreement may also contain waivers of a surviving spouse's right to claim an elective share of the estate of the deceased spouse.

In the United Kingdom and the nations of the European Union, parental responsibility refers to the rights and privileges which underpin the relationship between the children and the children's parents and those adults who are granted parental responsibility by either signing a 'parental responsibility agreement' with the mother or getting a 'parental responsibility order' from a court. The terminology for this area of law now includes matters dealt with as contact and residence in some states.

Child custody is a legal term regarding guardianship which is used to describe the legal and practical relationship between a parent or guardian and a child in that person's care. Child custody consists of legal custody, which is the right to make decisions about the child, and physical custody, which is the right and duty to house, provide and care for the child. Married parents normally have joint legal and physical custody of their children. Decisions about child custody typically arise in proceedings involving divorce, annulment, separation, adoption or parental death. In most jurisdictions child custody is determined in accordance with the best interests of the child standard.

Section 51(xxxvii) of the Constitution of Australia is a provision in the Australian Constitution which empowers the Australian Parliament to legislate on matters referred to it by any state. As Australia is a federation, both states and the Commonwealth have legislative power, and the Australian Constitution limits Commonwealth power. Section 51(xxxvii) allows for a degree of flexibility in the allocation of legislative powers.

Australian family law is principally found in the federal Family Law Act 1975 and the Federal Circuit and Family Court of Australia Rules 2021 as well as in other laws and the common law and laws of equity, which affect the family and the relationship between those people, including when those relationships end. Most family law is practised in the Federal Circuit and Family Court of Australia and the Family Court of Western Australia. Australia recognises marriages entered into overseas as well as divorces obtained overseas if they were effected in accordance with the laws of that country. Australian marriage and "matrimonial causes" are recognised by sections 51(xxi) and (xxii) of the Constitution of Australia and internationally by marriage law and conventions, such as the Hague Convention on Marriages (1978).

<span class="mw-page-title-main">Federal Circuit Court of Australia</span> Australian justice court

The Federal Circuit Court of Australia, formerly known as the Federal Magistrates Court of Australia or the Federal Magistrates Service, was an Australian court with jurisdiction over matters broadly relating to family law and child support, administrative law, admiralty law, bankruptcy, copyright, human rights, industrial law, migration, privacy and trade practices.

<span class="mw-page-title-main">Tender years doctrine</span>

The tender years doctrine is a legal principle in family law since the late 19th century. In common law, it presumes that during a child's "tender" years, the mother should have custody of the child. The doctrine often arises in divorce proceedings.

<i>White v White</i>

White v White is an English family law decision by the House of Lords, and a landmark case in redistribution of finances as well as property on divorce. This case involved a couple with assets exceeding £4.5m which was deemed more than either needs for their reasonable requirements. It was held that the absence of financial need did not mean departing from a more generous settlement for an applicant in big money cases. This, therefore, enables the courts to make settlements reflecting the wealth of the parties, and not just their needs and requirements.

<span class="mw-page-title-main">Divorce law by country</span> Overview of divorce laws around the world

This article is a general overview of divorce laws around the world. Every nation in the world allows its residents to divorce under some conditions except the Philippines and the Vatican City, an ecclesiastical sovereign city-state, which has no procedure for divorce. In these two countries, laws only allow annulment of marriages.

The fathers' rights movement has simultaneously evolved in many countries, advocating for shared parenting after divorce or separation, and the right of children and fathers to have close and meaningful relationships. This article provides details about the fathers' rights movement in specific countries.

<span class="mw-page-title-main">Canadian family law</span>

Family law in Canada concerns the body of Canadian law dealing with domestic partnerships, marriage, and divorce.

<span class="mw-page-title-main">Scots family law</span>

Scots family law is the body of laws in Scotland which regulate certain aspects of adult relationships and the rights and obligations in respect of children.

<i>MRR v GR</i> Court case in Australia about who a child should live with

MRR v GR was an Australian family law case concerning who the child should live with where the father wanted to remain living in Mount Isa, Queensland while the mother wanted to return to live in Sydney, NSW. The Family Law Act 1975 makes the "best interests of the child" the paramount consideration when making a parenting order. The High Court of Australia decided that a Federal Magistrate erred by failing to consider the "reasonable practicability" of a parenting order with an equal time arrangement that required the mother to live in Mount Isa. The matter was decided on 3 December 2009 with reasons subsequently published on 3 March 2010.

<span class="mw-page-title-main">Brussels II</span>

Brussels II Regulation (EC) No 1347/2000, which came into force on 1 March 2001, sets out a system for the allocation of jurisdiction and the reciprocal enforcement of judgments between European Union Member States and was modelled on the 1968 Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters. It was intended to regulate domains that were excluded from the Brussels Convention and Brussels I. The Brussels II Regulation deals with conflict of law issues in family law between member states; in particular those related to divorce and child custody. The Regulation seeks to facilitate free movement of divorce and related judgments between Member States.

<i>Gronow v Gronow</i> Judgement of the High Court of Australia

Gronow v Gronow, was a decision of the High Court of Australia.

Actions for divorce in Scotland may be brought in either the Sheriff Court or the Court of Session. In practice, it is only actions in which unusually large sums of money are in dispute, or with an international element, that are raised in the Court of Session. If, as is usual, there are no contentious issues, it is not necessary to employ a lawyer.

Parenting law in Australia encompasses a number of areas of law including:

References

  1. ↑ "New divorce laws to start today— No-Fault Ground", Sydney Morning Herald, January 5, 1976, p. 2
  2. ↑ "New divorce law offices besieged by callers", by Jill Sykes, Sydney Morning Herald, January 6, 1976, p. 2
  3. ↑ "Matrimonial Causes Act 1959".
  4. ↑ The Matrimonial Causes Act 1959
  5. ↑ https://aifs.gov.au/sites/default/files/publication-documents/family_law_and_marriage_breakdown_in_australia.pdf [ bare URL PDF ]
  6. ↑ Enderby, Kep (1975). "The Family Law Act: Background to the Legislation" (PDF). UNSW Law Journal.
  7. ↑ Family Law Act 1975 s 43.
  8. ↑ Family Law Act 1975 (Cth) s 61C Each parent has parental responsibility (subject to court orders).
  9. ↑ Family Law Act 1975 (Cth) s 65C Who may apply for a parenting order.
  10. 1 2 Family Law Act 1975 (Cth) s 60CA Child's best interests paramount consideration in making a parenting order.
  11. ↑ Gronow v Gronow [1979] HCA 63 , (1979) 144 CLR 513(14 December 1979).
  12. ↑ Family Law Act 1975 (Cth) s 61DA Presumption of equal shared parental responsibility when making parenting orders.
  13. ↑ MRR v GR [2010] HCA 4 , (2010) 240  CLR  461 Judgment Summary [2010] HCASum 4 High Court (3 March 2010).
  14. ↑ Family Law Act 1975 (Cth) s 65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances.
  15. ↑ Family Law Act 1975 (Cth) s 60CC How a court determines what is in a child's best interests.
  16. ↑ Family Law Act 1975 (Cth) s 79 Alteration of property interests.
  17. ↑ Kowaliw v Kowaliw [1981] FamCA 70 , (1981) FLC 91-092(21 September 1981)
  18. ↑ Ryan, Judy (2006). "Enlarging the Asset Pool - Adding Back Notional Assets". Federal Judicial Scholarship." [2006] Federal Judicial Scholarship 1.
  19. ↑ Kennon v Spry [2008] HCA 56 , (2008) 238 CLR 366 Judgment summary (PDF), High Court of Australia
  20. ↑ https://www.lawreform.ie/_fileupload/consultation%20papers/wpBreachofPromise.htm [ bare URL ]
  21. ↑ Family Law Act 1975 (Cth) s 94AAA Appeals to Family Court from Federal Circuit Court and Magistrates Court of Western Australia.
  22. ↑ Family Law Act 1975 (Cth) s 43 Principles to be applied by courts.
  23. ↑ "Same Sex Relationships | Stone Group". Stone Group. Retrieved 19 January 2018.
  24. ↑ Marriage Act 1961 (Cth) s 94.
  25. ↑ Family Law Act 1975 (Cth) s 6 Polygamous marriages.
  26. ↑ "De facto Relationships - Family Court of Australia". www.familycourt.gov.au. Retrieved 16 September 2017.
This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.