Family Law in Australia

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Family Law in Australia is an intricate web of common law and statute law that seeks to provide justice to all. It has undergone reform many times since its birth, and as it stands today reflects both international standards and domestic expectations in ensuring a fair outcome for all involved.

Types of Relationships

The law recognises two main types of relationships in Australia. Marriage law is maintained by the Federal (Commonwealth) government as dictated within Section 51(xxi) of the Australian Constitution. De facto relationships are ongoing and extended relationships between a couple who have not sort marriage, these are covered by state law.

Marriage

The definition of marriage within Australia is derived from the English common law in the case of Hyde v Hyde and Woodmansee (1866) (it must be noted that English law had precedent over the laws in the colonies at this time, so this definition was applicable in Australia until 1961). In his decision Wilde JO stated that:


a voluntary union for life of one man and one woman, to the exclusion of all others

Aspects of this definition were incorporated into the Marriage Act 1961 (Cwlth), which was the first to recognise marriage in a statute sense. The requirements of a valid marriage within the act are:

  • Monogamy: as demonstrated in both the act and case law[1] the Australian legal system does not recognise polygamy domestically or overseas, and as such neither party can be married without obtaining a decree absolute (divorce ruling). However, adultery will not void a marriage and it is legally permissible to live in both a marriage and a de facto relationship
  • Marriageable Age: both parties to the marriage must be over the age of eighteen. However, a teenager between the ages of 16 and 18 may marry with parental and the court's consent (although a court can overrule a parent if they fail to give consent) provided exceptional circumstances are demonstrated including both maturity and financial independence and the possibility of pregnancy.[2]
  • Degrees of Marriage: the current prohibited degrees of marriage are based on consanguinity, that is ancestor (e.g. parent, grandparent), descendant (e.g. child, grandchild) and sibling (brother and sister). Under the original act marriages based on affinity (marriage to aunts/uncles, niece/nephew, in laws and step children) were not allowed, but this was abolished in 1975
  • Consent: the marriage must be consented to without duress, cases have emerged where marriages have been ruled void because of lack of free consent[3]
  • Formalities of Ceremony: six months notice of marriage must be given, and if either party has been married previously the relevant paperwork (e.g. decree absolute or death certificate) must be produced. Three types of marriage ceremonies are recognised in Australia, civil (performed by a celebrant or Registry Office), religious (such as those performed in a Church) and foreign (if an Australian is involved a consular official must witness the marriage). Three marriage certificates must be signed by the celebrant, the couple and two witnesses over the age of 18 (although if they are under and there was genuine reason to assume they were of age a marriage will not be voided), one certificate is given to the couple, one is filed and the third is lodged with the Registry of Births, Deaths and Marriages.

If any of these conditions are failed to be met the marriage will be declared void and the couple will not be able to receive any benefits or utilise any mechanisms offered to married couples.

De Facto Relationship

The recognition and governing of de facto relationships in Australia is the responsibility of the state governments. In NSW de facto relationships were created under the De Facto (Relationships) Act 1984, which together with several cases[4] has determined the requirements of a de facto relationship.

  • Living together in the same premises for a period of two years OR
  • Have had a child together AND
  • Are not siblings to each other

The law also takes into account how the couple sees itself, how domestic duties are shared and whether or not there has been a sexual relationship. If a de facto relationship is reestablished the couple will enjoy tax benefits similar to those of a married couple, and will have greater access to dispute resolution mechanisms and maintenance.

The De Facto Relationships Act recognises two main agreements between partners. The laws regarding these agreements are very strict, the document must be agreed upon by both parties and accompanied by a solicitor's certificate confirming legal advice was given before it can be enforced. The first of these documents is a cohabitation agreement which can set out a variety of arrangements including agreements for domestic duties, sharing of expenses and the ownership of property during the relationship. The second is a termination agreement, which dictates how property will be split upon the break down of the relationship (decisions regarding children cannot be made in a termination agreement).

Homosexual Relationship

The status of homosexual relationships in Australia is such that marriages have never been recognised, originally this was through common law (although the Marriage Act did not contain the clause "man and a women" the precedent of Hyde v Hyde overruled any other decision) however the Howard government later passed the Marriage Amendment Act 2004 (Cwlth), which prohibited homosexual marriages.

Homosexual relationships are, however, recognised on a state level. In NSW this was originally achieved on a common law basis [5] but later the NSW government amended the De Facto Relationships Act in the Property (Relationships) Act 1999 (NSW), which granted the same rights of heterosexual de factos to homosexual couples.

Aboriginal and Torres Strait Islander Marriages

The customary law of the indigenous inhabitants of Australia is sometimes in conflict with the current legal system, and several issues have arisen preventing ATSI marriages from getting full recognition, including the low age of brides (sometimes 12 and 13 years), lack of written proof and the possibility of relationships based in polygamy, duress and consanguinity. Some reports[6] favour a half way approach, recognising the marriage for specific purposes such as adoption, maintenance and some superannuation/pension schemes. Children of ATSI couples receive the same recognition as other children.

Laws Relating to Interaction of Partners

If a marriage or a de facto relationship is established there are many laws governing the interaction of family members. Consortium vitae (the mutual duties between a couple) are not given legal recognition, however they can be taken into account in the event of the dissolution of the relationship. However, under the Family Law Act 1975 (Cwlth) a spouse is required to maintain and provide financial support to the other if they are unable to provide for themselves. This requirement extends to children, and can continue after marriage if the Family Court deems it necessary.

Property rights within a relationship were first recognised in statute in the Married Women's Proprty Act 1898 (NSW), which overturned the previous notion of unito caro (literally one flesh, upon marriage all the wife possessions were transferred to the husband). Today any property owned before the beginning of a relationship is considered individually owned, and property obtained by both partners can be owned either in joint tenancy (where both have equal rights to the good) or tenants in common (where each owns a portion of the good). Partners also maintain complete legal independence from each other, they can individually sue, be sued, enter into contracts and have their own debt.

The law also takes into consideration the place of wills. Under the Wills, Probates and Administration Act 1898 (NSW) any will made prior to a marriage is revoked upon marriage unless the will was made in preparation of the marriage. The Family Provisions Act 1982 (NSW) allows dependents to sue the estate of the deceased if they were inadequately provided for in a will (this is protect from abuse by requiring the plaintiff to pay all legal fees if their case is dismissed).

Laws Relating to Children

Laws relating to children within a relationship are typically controlled by state governments, whereas laws regarding children during the breakdown of a relationship are implemented by the federal government. Within NSW all children (whether in a marriage or de facto relationship) are considered equal under the Status of Children Act 1996 (NSW), and are allowed equal protection under the following legislation.

Parental Responsibility

Under the Children and Young Persons (Care and Protection) Act 1998 (NSW) parents have a duty to provide for their children and protect them from harm. If a child is neglected or abused the act empowers the Children's Court to make an order for the child to be removed from the relationship and cared for by others. Parents are also required to control their children's actions under the Children (Protection and Parental Responsibility) Act 1997 (NSW), which holds parents financially liable for the actions of their children.

Education

Under the Education Reform Act 1990 (NSW) parents must ensure their children attend school between the ages of six and fifteen (schooling can include public institutions, private institutions or homeschooling - allowable under a special exemption). The act also allows a special provision by which the child can sue the parents to provide for their final years of schooling if they fail to do so.

Discipline

Parents are allowed to discipline their children, however any punishment must be moderate and reasonable[7] and must not require any medical treatment. Blows to vulnerable sections of the body, such as the face and groin, are prohibited under the Care and Protection Act and the Crimes Act 1900 (NSW).

Corporal punishment is also illegal within schools under the Education Reform Act and case law.[8] The government is able to revoke the license of a private institution if it fails to abide by the law.

Healthcare

Parents are wholly responsible for the medical and dental treatment of a child up until the age of eighteen, however children are able to seek medical treatment on their own from the age of fourteen under the Minors (Property and Contracts) Act 1970 (NSW) and do not have to inform their parents about any procedure (it is also illegal for doctors to inform parents under patient-doctor privacy rights). The law has responded in several cases to ensure the best interest of the child are held when treatment is being administered.[9]

Autonomy and the Age of Consent

Parents are required to grant their child increasing autonomy as they age, including freedom of religion and the ability to manage their own finances (the Minors (Property and Contracts) Act 1970 (NSW) regulates the actions of children with respect to contracts and medical treatment).

The age of consent for sexual relationships across Australia is 16, however in some states such as NSW the age of consent for homosexual couples is 18. The age of consent for entering into contracts and getting married is 18, however provisions may be made in exceptional circumstances or if the contract is in the best interest of the child.

Adoption

Adoption laws vary from state to state. In NSW previous legislation[10] were incorporated into the Adoption Act 2000 (NSW). It is a permanent transfer of all legal rights and duties to the adoptive parents, in effect the birth parent (or like party) relinquishes all control over the child. The crucial element to an adoption is that of consent, if the parents putting the child up for adoption are married both must give consent, however if the parents were unmarried at the time of birth usually the mother's consent is only required (however if a de facto relationship occurred before and after birth the fathers consent is also required). Upon adoption the Registrar of Births, Deaths and Marriages will issue a new birth certificate in the child's adopted name.

The criteria for an adoptive parent includes:

  • Married couples or those in a stable heterosexual de facto relationship (longer than 3 years). Individuals cannot apply
  • Applicants must be over the age of 21 but under the age of 51, prospective male parents must be at least 18 years older than the child and the prospective female parent at least 16 years older
  • Applicants must be of good repute and be able to carry out all required responsibilities
  • Where applicable matters of religion, race and culture are taken into account

Originally locating one's birth parents and vice versa was somewhat difficult, however the Adoption Registar established under the Adoption Information Act 1990 (NSW) allows both parties to voluntarily register their names in order to establish contact at a later date.

There are approximately 600 children adopted Australia wide per annum.

Laws Relating to Health and Related Technologies

Family law in Australia encompasses legislation that relates healthcare and related technologies to the family.

Abortion

Abortion in Australia is technically illegal under the Crimes Act 1900 (NSW) and related legislation, however provisions have been made in common law that have established precedent across the country. The first such ruling was in Victoria in R v Davidson (1969), in which Justice Menhennitt ruled that abortion is permissible if:

  • it is necessary to protect the woman from serious damage to her life or physical or mental health that the pregnancy would entail; and
  • in the circumstances not out of proportion to the danger to be averted

The Menhennitt ruling was later adopted in Australia in the Levine ruling of 1971, which dictated that an abortion could be carried out up to the 20th week to avoid social, economic or medical harm. This was expanded by the Kirby ruling of 1994, which expanded the provision of abortions to any point in the pregnancy for health related issues.

Artificial Conception

Artificial conception laws cover a variety of treatments including in vitro fertilization (IVF) and artificial insemination. These were originally covered under the Artificial Conception Act 1984 (NSW), which was later repealed and incorporated into the Status of Children Act 1996 (NSW). The later act covers both the parentage of the child (if the husband agrees to the donor sperm he is registered as the father) and the ethical standards of the procedure (all clinics are required to have ethics committees, and can have their licenses revoked for malpractice). Artificial conception is not available to homosexual couples under the Sex Discrimination Amendment Act 2001 (Cwlth), although common law has upheld the right of single women to access it.[11]

Surrogacy

Surrogacy laws vary from state to state. Under the Adoption Act 2000 (NSW) commercial surrogacy is illegal, but altruistic surrogacy (where no money is exchanged) is permitted. The sperm donor and birth mother are the legal parents of the child, and they can then chose to give up their rights to the parents wanting the baby. There is no requirement for the surrogate mother to give the child up for adoption, however if a dispute emerges common law dictates that the best interests of the child will determine whom legal guardianship is awarded to.[12]

Laws Relating to Domestic Violence

Domestic violence is a problem throughout Australia,[13] and there have been several responses through the legal system.

The common law responses include the recognition of battered women's syndrome,[14] allowing domestic violence to be taken as a mitigating factor in the murder of a spouse. The statute law response incorporates a variety of acts, including the Crimes (Sexual Assaults) Amendment Act 1981 (NSW) (outlawing rape in marriage), and the Crimes (Domestic Violence) Amendment Act 1982 (NSW), which brought in tougher penalties for assaults in relationships. The government introduced Apprehended Violence Orders (under which one person cannot approach another) in the Crimes (AVO) Amendment Act 1983 (NSW), and later acts including the Periodic Detention of Prisoners (Domestic Violence) Act 1982 (NSW) and the Firearms Amendment Act 1994 (NSW), which increased police powers in dealing with breaches of AVO's. After several incidents which resulted in deaths[15] the state government introduced the Bail Amendment Act 2002, which removes the presumption of bail for those with AVO's. However, breaches of AVO's are still widespread.[16]

The government has also implemented a variety of schemes to reduce the impacts of domestic violence, including utilising the media (such as in the "Violence Against Women: Australia Says No" advertisements), through the Domestic Violence Intervention Program (established in 2001 and allows magistrates to order first time offenders to undergo anger management training and counseling) and the Women's Domestic Violence Court Assistance Program (established in 1998, aims to provide assistance for victims of domestic violence during the legal proceedings).

Laws Relating to the Dissolution of a Relationship

The dissolution of a relationship is one of the largest areas of family law in Australia, and has undergone considerable change to reflect changing domestic and international standards.

History of Reform

Divorce in Australia originally followed English law, specifically the Divorce and Matrimonial Causes Act 1857 (UK). Under this act women were severely restricted in their ability to obtain a divorce, and even after a divorce neither party could remarry. This system was replaced when the federal government introduced the Matrimonial Causes Act 1959 (Cwlth), which allowed for a divorce provided a "fault" was proven. There were fourteen faults listed, including adultery, desertion, cruelty, habitual drunkenness, imprisonment and insanity, however it was desirable to prove fault against the other party rather than have it proven against oneself, as it would reflect in the distribution of property and custody rights.

In 1975 the federal government repealed the Matrimonial Causes Act with the Family Law Act 1975 (Cwlth), which is considered a revolutionary piece of revolution, not only serving to create the Family Court but also to introduce the concept of "no fault divorce", in which only a single clause, "irretrievable breakdown" needed to be shown. This allowed for greater accessibility to the legal system, and parties no longer had to be concerned about the possibility of having fault found against them.

In 1989 Australia signed the United Nations Convention on the Rights of the Child, which recognised that the rights of the child were paramount about all others. This was ratified in part into the Family Law Reform Act 1995 (Cwlth), which held that the law should uphold the "best interest of the child" over the rights of the parent, and promoted mediation and parenting plans to ease the distress caused by a separation. It appeared successful in some cases,[17] however various studies[18][19] revealed problems with the system. Upon the recommendations of these reports the Family Law Amendment Act 2006 (Cwlth) was introduced, which placed greater emphasis on "shared responsibility" in settlements.

The children of de facto couples have been recognised under the Family Law Amendment Act 1987 (Cwlth), which requires custody arrangements to be handled at a federal level in the Family Court.

The division of property in a breakdown of a relationship has also been reformed over the years, originally in the 1975 act which recognised non financial contributions to a relationship (including domestic duties and the upholding of happiness). This was further expanded in the Family Law Amendment Act 2000 (Cwlth) which recognised prenuptial agreements, and the Family LAw Amendment Act 2001 (Cwlth) which allowed superannuation of couples to be split. Common law has also served to extrapolate on the measures set down by parliament.[20] De facto property splits occur on a state level, and common law has recognised that the extent of divisions is not the same as for married couples,[21] in response to which the federal government has introduced the Commonwealth Powers (De Facto Relationships) Bill 2006 (Cwlth), which if passed will allow superannuation to be split in de facto separations.

Current Measures

Married couples will have their case heard in the Family Law Court. With regards to property splits if the couple has a prenuptial agreement this will be taken into account, however changes in division may occur. If they do not have an agreement the division of property will be made with respect to two factors: the financial and non financial contributions each party made to the marriage and the continuing maintenance of both the spouse and the children (the latter are required to continue living a life similar to before the divorce). Children are further considered in a divorce in terms of custody rights. Under the latest act the emphasis is on shared responsibility, in that if possible each parent will have an equal role in the child's upbringing, set out in a parenting plan drawn up by both parties. If an agreement is able to be reached on this outside of court through mediation no arbitration is necessary, however if disputes arise the Family Court can make rulings and decide for the couple. In an effort to make the process of mediate easier the federal government has provided Family Justice Centres with professional counseling services, which can either help a couple avoid a divorce or guide them through a separation.

De facto couples have their separation heard in two separate courts. Property matters are heard under state law and will usually be dealt with in the district court, where a limited level of contributions will be taken into account. Matters relating to the custody and care of children are heard in the Family Court, where the same process applies.

Child Support

Child support is handled by the Child Support Agency, created in two stages. The first of these was represented by the Child Support (Registration and Collection) Act 1988 (Cwlth) which established it as part of the Australian Taxation Office; the second, in the Child Support Assessment Act 1989 (Cwlth) handed the role of calculating how much maintenance needs to be paid from the Family Court to the agency. Under these acts payment is taken out with tax, and is calculated on a formula which takes into account the income of both parents, the number of children being supported and any other dependents of either parent. The scheme was amended in the Child Support Legislation Amendment Act 1998 (Cwlth), which placed greater emphasis on shared parental contact and reduced the income needed before deductions are made. However, the agency has come under criticism[22] and fails to collect support from up to 30% of parents, and has begun to be reformed under the Child Support (Reform of the Child Support Scheme - Initial Measures) Act 2006 (Cwlth).

Family Law Court

The Family Law Court was established by the Family Law Act 1975 (Cwlth), and has jurisdiction over all matters relating to marriage and all matters relating to children in family law. The court has chambers in all states and territories in Australia, and has 47 judges sitting, all of whom are specially trained in handling the emotional atmosphere surrounding divorce proceedings. The Family Court is a closed court (only persons relating to the case and members of the media can enter) and initially elements of informality were incorporated (such as the absence of wig or gown, however this was reversed after several attacks on judges).

Supporting the Family Law Court is the Federal Magistrate Court, established under the Federal Magistrates Act 1999 (Cwlth). With respect to family matters it handles minor disputes,[23] and most of its work involves authorising agreements which have been created through mediation. Because of the Federal Magistrate's Service only 2% of cases involving family law disputes are heard before the Family Law Court.

The Family Law Court was involved in the implementation of Project Magellan in 1996, a trial which sort to remove barriers to divorce by replacing the paperwork with a simple two page document. The success of this program resulted in the Family Law Rules Act 2004 (Cwlth), which has improved accessibility to the system overall.

References

  1. in Khan v Khan (1960) the judiciary failed to recognise a polygamous marriage overseas
  2. this is affirmed in common law, in cases such as re W (1968) and the Western Australian Supreme Court's overruling of a magistrate's ruling in ex parte Willis (1997)
  3. This was the case in Di Mento v Visalli (1973), in which the marriage was declared void because both the husband and the father had threatened to harm the wife if she refused
  4. such as Davies v Sparkes (1990)
  5. several cases have recognised homosexual relationships. Hope and Brown v NIB Health Fund (1995) granted a family policy to two males and their son; two test cases, Family Leave Test Case (1994) and the Personal Carers Test Case (1995) later affirmed that homosexuals had the same rights as heterosexual couples in industrial relations disputes provided they were living together on a bona fide basis; the concept of children in a homosexual relationship was explored in W v G (1996), in which a precedent was set with regards to the payment of child support; R v McEwan (1996) saw "battered women's syndrome" be applied to a homosexual relationship under the same principles as for heterosexual relationships
  6. such as the Australian Law Reform Commission's Recognition of Aboriginal Customary Laws (1986)
  7. as recognised in R v Hamilton (1891), in which a father was convicted of assault for beating his son with a loaded gun
  8. Hogans v Trustees of the Catholic Church (2001) recognised the lasting impact that corporal punishment can have
  9. Several cases demonstrate this. Secretary, Department of Health and Community Services v JMB and SMB (1992) or re Marion saw the ruling against sterilising an intellectually disabled girl as it violated her rights; A (children) (2000) saw the law working for the best possible outcome in allowing one conjoined twin to die so that the other could live, as opposed to both passing away
  10. such as the Child Welfare Act 1923 (NSW) and the Adoption of Children (Amendment) Act 1982 (NSW)
  11. in McBain vs. State of Victoria 2000 the Federal Court ruled denial of IVF to single women was illegal under anti discrimination acts
  12. as expressed in re Evelyn (1998), the first surrogacy related case in Australia
  13. the Redfern legal centre estimates 30% of couples have experienced some form of domestic violence
  14. recognised in cases such as R v Hickey (1992) and R v Kina (1988)
  15. including both Andrea Patrick and Jean Majdalawi who were shot dead in 1993 and 1996 respectively after a breach of an AVO
  16. NSW Crime Beueru's Evaluation of the Apprehended Violence Order Scheme (1997) found that 1/5 AVO's was breached and 73% of breaches did not result in a conviction
  17. the unofficial test case was B v B (1997), in which the rights of the child were held over the visitation rights of the father
  18. the Australian Senate's report Every Picture Tells a Story found that in 78% of cases custody went to the father, against the recommendations of psychologists Parkison and Cashmore who emphasised the need for a "father figure" in the child's life. The mediation process was called into question with 35% of fathers gaining custody only if a case went to trial
  19. the Sydney University's report Family Law Reform: The First Three Years revealed victims of domestic violence may be intimidated by the process
  20. for example in Mallet v Mallet (1984) it was determined a 50:50 split was not automatic for families
  21. such as in Evans v Marmont (1997)
  22. the parliamentary report In the Best Interests of Children - Reforming the Child Support Scheme revealed a number of complaints, particular from fathers' rights groups
  23. for example property disputes with sums of less than $300,000, enforcement of court orders, determination of parenting using DNA technology etc