Defining a family ◦ Definitions of family changes over time Illegitimacy ◦ Historically this was important as illegitimate children did not have the.

Defining a family◦ Definitions of family changes over time

Illegitimacy◦ Historically this was important as illegitimate children did

not have the same legal rights as legitimate children◦ Common law distinguished between legitimate and

illegitimate children – illegitimate children no one was legally responsible for them. They couldn’t inherit. These were overcome in the 1970s when various jurisdictions passed status of children legislation.

Status of Children legislation◦ See Status of Children Act 1996 (NSW), esp. s14

Same sex marriage◦ Some are concerned that this will threaten the institution

of marriage◦ Re Kevin brings up issues of defining a family and

defining marriage into focus Same sex families

◦ Significant law reform

Our Constitution has affected the development of family law

No general family law power Initially the states dealt with family law Commonwealth didn’t introduce federal

legislation until the Matrimonial Causes Acct 1959

UN International Covenant on Civil and Political Rights adopted by the Human Rights and Equal Opportunities Commission

Act 1986 Cth: Article 23: The family is the natural and fundamental group unit of society and

is entitled to protection by society and the State. The right of men and woman of marriageable age to marry and to

found a family shall be recognised. No marriage shall be entered into without the free and full consent

of the intending spouses. States Parties to the present Covenant shall take appropriate steps

to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.

 Article 24: Every child shall have, without any discrimination as to race,

colour, sex, language, national or social origin, property or birth, the right to such measures of protection as are required by his [sic] status as a minor, on the part of his family, society and the State.

Every child shall be registered immediately after birth and shall have a name.

Every child has the right to acquire a nationality.

federal powers: ss 51 (xxi), 51 (xxii) Australian Constitution

Section 51 the Australian Constitution: … The Parliament shall ... have power to make laws

for the peace, order, and good government of the Commonwealth with respect to …

(xxi) Marriage; (xxii) Divorce and matrimonial causes; and in

relation thereto, parental rights, and the custody and guardianship of infants;◦ Marriage power, divorce and matrimonial causes◦ A-G (Vic) v The Commonwealth (1962) 107 CLR 529 –

scope of marriage power ◦ Lansell v Lansell (1964) 110 CLR 353 – powers can be

interpreted to reflect social change◦ Russell v Russell; Farrelly v Farrelly (1976) 134 CLR 495 -

can rely on more than one head of power state and territory powers

◦ Adoption◦ Surrogacy◦ Child protection

state referral of powers over children: Commonwealth Powers (Family Law – Children) Act 1986 (NSW)

referral of powers over de facto financial matters: Commonwealth Powers (De Facto Relationships) Act 2003 (NSW) ◦ All states except WA have referred their powers

P v P (1994) 181 CLR 583 (PP)

Family Court of Australia (FCA) Part IV Federal Magistrates Court (FMC) Federal

Magistrates Act 1999 (Cth)◦ Less formal, quicker, cheaper

State Courts (Family Court of WA only) Local Courts (courts of summary

jurisdiction) refer to ss 39(2), 39(6) FLA . There are

some limits though:◦ the Local Court can only determine ancillary relief

(not principal relief) ss 39(6), 44A; ◦ s 46 limits ancillary relief in property matters less

than $20,000; and◦ s 69N(2) requires both parties to consent to a

children’s matter being determined by a Local Court.

The Family Court shall, in the exercise of its jurisdiction under this Act....have regard to:

(a) the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life;

(b) the need to give the widest possible protection and assistance to the family as the natural and fundamental group unit in our society, particularly while it is responsible for the care and education of dependant children;

(c) the need to protect the rights of children and to promote their welfare;

(ca) [since June 1996] the need to ensure safety from family violence; and

(d) the means available for assisting parties to a marriage to consider reconciliation or the improvement of their relationship to each other and their children. 

In short it includes applications for: divorce and nullity declarations re marriage spousal maintenance property settlement approval of maintenance’ agreements injunctions enforcement of maintenance agreement enforcement of overseas decrees ‘any other proceedings’ including enforcement financial agreement proceedings de facto financial cause : s 4(1) similar

The hierarchy of judges is as follows: Chief Judge Deputy Chief Judge Judge Administrators and Judges of the

Appeal Division Senior Judges Judges Division 3 of Part IV deals with judges. The officers of the Court are as follows: Chief Executive Officer (general

administrator) Registrars (principal administrator for each

registry) Deputy Registrars (either 'judicial registrars'

or 'registrars' - their powers differ) Marshal (principal enforcement officer) Deputy Marshals Director of Court Counselling (each registry) Court Counsellors (psychologists) Court Officers and Judges Associates

refer ss 26A, 37A (and Family Law Rules) Registrars, like Registrars in other courts,

deal with procedural matters and consent orders. Judicial Registrars, introduced in 1988 by s 26A, have a more formal judicial function hearing some contested matters, such as defended divorce proceedings and child support departure applications. Any decision of a judicial registrar may be reviewed by a judge by way of a hearing de novo.

Harris v Caladine [1991] FLC 92-217

Refer to Part V of the FLA Proceedings for divorce under s 39(3) must

involve a party being (at the date of filing): an Australian citizen an Australian 'ordinarily resident' or domiciled in Australia - note Domicile Act

1982 (Cth). For all other proceedings s 39(4) requires

that either party be (at the date of filing): an Australian citizen an Australian 'ordinarily resident' or merely present in Australia.

II: non-court based family services – family counselling, family dispute resolution and arbitration

IIIA: obligations to inform people about non-court based family services

IIIB: Court’s powers in relation to court and non-court based family services

IV: the court V: jurisdiction (not children) VI: divorce/nullity VII: children (and jurisdiction) VIII: property orders and spousal maintenance VIIIA: financial agreements VIIIB: superannuation VIIIAA: orders against 3rd parties XIIIAA: international agreements XIIIA: sanctions for breach XIIIB: contempt of court XIV: injunctions

jurisdiction in matrimonial causes: Part V, ◦ s 31- original jurisdiction◦ s33A associated proceedings◦ s38 practice and procedure◦ S39 matrimonial causes◦ s39A de facto matters

principle to be applied by the courts: s 43 jurisdiction in children's matters: Part VII,

s69E, 69H Jurisdiction cannot be created by consent

Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) (NSW) and Federal Courts (State Jurisdiction) Act 1999 (NSW)

Re Wakim; Ex parte McNally (1999) 198 CLR 511 (PP) – High Court held cross-vesting scheme unconstitutional

Warby and Warby [2002] FLC 93-091 (PP) – accrued jurisdiction

Valceski (2007) FLC 93-312 – accrued jurisdiction

 Amendments since:1976 that proceedings for maintenance, custody, property and

injunctions had generally to be between ‘the parties to a marriage’

that ‘children’ had to be the natural or adopted children of both the spouses concerned

that all property proceedings had to be in relation to concurrent, pending or completed proceedings for dissolution of marriage or one of the other forms of principal relief available under the Act

1983 -widening of the classes of person who can commence proceedings

- children to include ‘ordinary members of the household’

- inter-spousal property proceedings at any time 1987 - New Part VII – children - Revised Part VIII -

property 1996 -New Part VII – children -Primary Dispute

Resolution

2000 - New Part VII Div 13A enforcement - New Part VIIIA binding financial agreements 2001 New Part VIIIB: Superannuation splitting 2003 - Non-registration of parenting plans - New Part

VIIIAA: Orders against third parties 2005 - Bankruptcy 2006 - ‘Shared Parenting’ 2008 Three major law reforms introduced by the Rudd

government to remove discrimination against same-sex couples and children of same-sex relationships

Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) received Royal Assent on 21 November 2008

Same-Sex Relationships (Equal Treatment in Commonwealth Laws – General Reform) Act 2008 (Cth) received Royal Assent on 9 December 2008

Same-Sex Relationships (Equal Treatment in Commonwealth Laws – Superannuation) Act 2008 (Cth) received Royal Assent on 9 December 2008

must file an application for property or maintenance within 12 months of divorce order becoming final: s44(3)

Conditions for extension of time: s44(4) Appellate jurisdiction must lodge within 28 days Jurisdiction in divorce proceedings s39(3) connection to Australia

◦ Either party Australian citizen; or◦ Domiciled in Australia; or◦ Ordinarily resident in Australia past 12 months

Welfare jurisdiction Supervisory jurisdiction s67Z FLA