Year 12 Legal Studies
Legal Issues and Remedies
Dissolution of Marriage- Internet Work
Family Law Act 1975 (Cth) created the Family Court of Australia as a specialist court for matters concerning marriage, divorce and matrimonial causes
Only one ground for divorce under this Act- irretrievable breakdown of marriage- no possibility of reconciling.
Requires proof of twelve months of living apart separately . starts from the time when one party tells the other. What about implied separation? (see Whiteoak and Whiteoak 1980 FLC 90-837)
Section 49[z] permits same household living despite separation due to financial constraints or child welfare and parenting. Family Court would require evidence of:
· Good reasons to be living together
· Intention of divorce at the end of twelve months and the commencement of two household residency
· Independent lives
· Corroborative evidence (see Pavey v Pavey 1976 10 ALR 259)
‘kiss and make up’ clause: section 50 Family Law Act- couples who are separated may try living together again for one period of up to three months. If this does not work out, there is no need for the twelve months separation period to start again.
Marriages of less than two years- when applying for a divorce, must undergo compulsory counselling.
Decree nisi and decree absolute- when court has decided that an application for divorce is successful, it grants a decree nisi, which is like an interim order stating that the couple are divorced, but cannot remarry until the decree absolute is issued one month later. This period is a last chance for couples to change their minds and make satisfactory arrangements for any children of the marriage.
Application of Nullity- to void a marriage if the original marriage did not meet Marriage Act 1961 (Cth). Covered by sections 51 and 52 Family Law Act 1975 (Cth)
Reasons for nullity???
Recent Amendments
1983- amendment which clarified the concepts of custody and guardianship and allowed a third party to take action in the Family Court
1987- amendment which gave the Family Court jurisdiction over all children when a relationship breaks down. Allowed for the introduction of the Child Support Scheme in regard to maintenance payment.
1996- Family Law Reform Act 1995 (Cth)- many changes in relation to children and their care esp. in respect to UN CROC ratification. Reforms involved alternative dispute resolution (ADR) and encouragement of reconciliation through counselling, mediation and arbitration to avoid time, costs and animosity.
Go to http://www.familycourt.gov.au/wps/wcm/connect/FCOA/home/about/LAT/ and demonstrate the recent 2006 amendments reforming the adversarial process within the Family Court of Australia
Australian family law - The constitutional framework
Australia has a federal system of government - authority is divided by the Australian Constitution between the States and the Commonwealth (Federal) governments. The Constitution is set out in the Commonwealth of Australia Constitution Act 1900 (Cth).
Three types of power are exercised at both the state and federal levels, these are:
· legislative
· executive
· judicial
Legislative power is the power of a parliament to make laws, executive power is the power to "implement, enforce and administer" the laws, judicial power is the power to make decisions about the application of the law to a particular dispute between parties.
The Federal Parliament's power to make laws about marriage and divorce
The Federal Parliament has the power to make laws for the whole of Australia, but only in relation to specific subject matter. The Australian Constitution defines these powers.
The Parliament derives its power to make laws about marriage, divorce and matrimonial causes from s 51 (xxi) and s 51 (xxii) of the Constitution.
Prior to 1959 there were varying state laws about divorce. The Matrimonial Causes Act 1959 (Cth) introduced the first uniform divorce laws for Australia, however it dealt only with situations where spouses were seeking what is known as "principal relief", for example a divorce or declaration of nullity of marriage.
State and territory laws continued to apply to cases where spouses were seeking "ancillary relief", that is, orders in relation to issues about children or property arising as a consequence of the breakdown of the marriage.
About the same time as uniform divorce laws were passed, uniform laws about marriage were also enacted by the Federal Parliament. The Marriage act 1961 (Cth) contains provisions relating to marriageable age, marriage of minors, solemnization of marriage and foreign marriages.
The Family Law Act 1975 (Cth)
The principal aim of the Family Law Act 1975 (Cth) was to reform the law governing the dissolution of a marriage and was a response by the government at the time to what it saw as widespread public dissatisfaction with the existing law.
The Act was vigorously debated and finally came into force on 5 January 1976. It replaced the Matrimonial Causes Act 1959 (Cth) and superseded State and Territory laws about "guardianship, custody, access and maintenance of children of a marriage".
The main changes introduced by the Family Law Act 1975 (Cth)
The act introduced changes to the way divorce was dealt with including:
· fourteen grounds for divorce were replaced with one "no fault" ground which was the irretrievable breakdown of the marriage demonstared by a minimum period of 12 months during which the parties lived "separately and apart". Previously, evidence had to be given to the Court to show that one party had been guilty of misconduct such as adultery or cruelty, habitual alcohlism, desertion or insanity, or that there had been a five year separation. Fault, or "Guilt" was no longer to be a consideration in deciding with whom the children should reside or what maintenance might be paid.
· created the Family Court of Australia - one court established to administer the Act but with the option for each State to set up its own State court to administer the Act (Western Australia was the only State to do this)
· highlighted the importance of counselling to assist couples who were in the process of separation and divorce and attached this service to the Court
· the welfare of the children was to be the most important consideration
· publication of information which identified parties or witnesses in a case was prohibited unless one of the exceptions listed in the Act applied
· courts were "closed", this provision was repealed in 1983
· procedures were simplified and formality reduced, no wigs and gowns were to be won by Judges or barristers (they were introduced in 1987)
Amendments to the Family Law Act 1975 (Cth)
There have been a number of amendments to the Act. In particular, the Family Law Reform Act (Cth) which came into force on 11 June 1996 amended significant sections relating to children.
The changes included the introduction of the concept of "parental responsibility", "residence", "contact" and "specific issues" orders. These changes recognised the desirability of continuing joint responsibility and co-operation in parenting after separation or divorce.
Are all children covered by the Family Law Act 1975 (Cth)?
Originally only children who were children of a marriage were covered by the Act because the Federal Parliament only had the power to make laws in relation to matters associated with divorce.
In each State, ex-nuptial children were subject to different laws about residence and contact if their parents' relationship broke down. Under the Australian Constitution, the states may refer their powers to the federal parliament by mutual agreement.
All States except Western Australia have done this and children are covered by the Family Law Act 1975 (Cth) whether or not they are children of a marriage. Whilst Western Australia did not refer its powers, Western Australia has a State Family Court which exercises federal jurisdiction under the Family Law Act 1975 (Cth) so the same provisions also apply to children living in that State.
What family related issues can the States make laws about?
There are some child and family related matters about which only the State Parliaments can make laws. Some examples include:
· care and protection of children
· adoption of children
· equality of status of ex-nuptial children
· family provision form the estate of a testator
· property disputes between de facto couples
· criminal matters eg domestic violence