Australian family law
Family Law in Australia is contained in various pieces of legislation, but also includes 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 Family Court of Australia.
Laws affecting married and de facto couplesEdit
The federal Family Law Act 1975 covers divorce, children's orders, property division, spousal maintenance and related matters. Since 1 March 2009 (1 July 2010 in South Australia) de facto couples are also covered by the Family Law Act in states or territories which have conferred their power over de facto relationships to federal jurisdiction. The power has been conferred in all jurisdictions except Western Australia. Before the conferring of the power to the Commonwealth, state and territory laws applied to de facto relationships, which also continue to apply in non participating states or territories.
Since 2009, the definition of "de facto couple" has included same-sex couples. The definition applies throughout Australia, in Commonwealth, state and territory legislation.
The names for de facto and similar relationships in each state and territory are as follows:
|New South Wales/Norfolk Island||"Domestic relationship", encompassing "de facto relationships" and "close personal relationships"||Separation date after 1 March 2009 Family Law Act before 1 March 2009 Property (Relationships) Act 1984. Since July 1, 2016 all NSW laws also apply to the approximately 2,000 residents on Norfolk Island, under both the Norfolk Island Legislation Amendment Act 2015 and the Territories Legislation Amendment Act 2016 - because the Norfolk Legislative Assembly was abolished on July 1, 2015.|
|Victoria||"Domestic relationship", defined to mean "de facto relationships"||Separation date after 1 March 2009 Family Law Act before 1 March 2009 Relations Act 2008 (Vic). Property Law Act 1958 Part IX has now been repealed effective 1 December 2008, now encompassed in the Relationships Act 2008.|
|Queensland||"De facto relationship"||Separation date after 1 March 2009 Family Law Act before 1 March 2009 Property Law Act 1974|
|South Australia||"Close personal relationship"||Separation date after 1 July 2010 Family Law Act before 1 July 2010 Domestic Partners Property Act 1996|
|Western Australia||"De facto relationship"||Family Court Act 1997, Part 5A|
|Tasmania||"Personal relationship", encompassing "significant relationships" and "caring relationships"||Separation date after 1 March 2009 Family Law Act before 1 March 2009 Relationships Act 2003|
|Australian Capital Territory||"Domestic relationship" and "domestic partnership"||Separation date after 1 March 2009 Family Law Act before 1 March 2009 Domestic Relationships Act 1994, Legislation Act 2001 s 169|
|Northern Territory||"De facto relationship"||Separation date after 1 March 2009 Family Law Act before 1 March 2009 De Facto Relationships Act 1991|
De facto relationships not recognised outside AustraliaEdit
Because of how the power from state or territory to federal jurisdiction was conferred (see Section 51(xxxvii) of the Australian Constitution), de facto couples outside Australia are not covered by the Family Law Act. This is because there must be a nexus between the de facto couple and a state or territory, as the law can only be applied within a state or territory. If a de facto couple moves out of an Australian state or territory they do not take the state or territory with them so the law cannot apply to them. The legal status and rights and obligations of the de facto or unmarried couple would then be recognised by the country's laws of where they are ordinarily resident. See the section on Family Court of Australia for further explanation on jurisdiction on de facto relationships. This is unlike marriage, which is legally recognised internationally outside of the country of marriage.
Laws affecting childrenEdit
The family law framework deals with parenting arrangements to ensure the best interests of children, especially in circumstances where they are at risk or where their parents or carers are separating. Although child protection is primarily dealt with on a state and territory basis, under state and territory legislation, parenting arrangements could also be dealt with under the federal Family Law Act 1975.
A government-administered child support scheme enables parents to reach private agreements, or to register with the Child Support Agency Australia. The Child Support Agency may require one parent to make payments to the other, depending on the division of care and on each parent's income, among other factors. Since 1989 child support has been assessed under the Child Support (Assessment) Act, 1989, administered by Child Support Agency Australia.
Australian domestic law also enacts some of Australia's obligations under international law, such as the Hague Convention on the Civil Aspects of International Child Abduction, which is dealt with in the Family Law Act 1975.
On 22 May 2006, the Family Law Act 1975 was amended by the Family Law Amendment (Shared Parental Responsibility) Act 2006, which applies to any court matters involving children that were in court on or after 1 July 2006. The primary object of this law is to ensure that the courts always have the "best interests of the child" as the paramount consideration. An object of this law is to ensure that the best interests of children are met by ensuring that "children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child". Many however argue that such an arrangement actually works against achieving this, and today continue to push for further reform.
Property and financial outcomesEdit
Australia is an equitable distribution country, meaning that net wealth is not split evenly (50/ 50) upon divorce. Instead Courts are given wide powers, taking into account 27 or so statutory factors, so as to determine what a "just and equitable " division of wealth would be. The vast majority of outcomes result in a division of 55-65% in favour of the wife, or economically weaker spouse, before payment of legal fees. This process is not without its critics: on average the wealth re-allocation process takes between 2 years, or for the more wealthy, up to 4 years.
- Was I in a De Facto Relationship? Davoren Associates. Retrieved on 2015-01-15.
- Family Law Act 1975 (Cth) s 4AA De facto relationships.
- "Norfolk Island Legislation Amendment Bill 2015". (Cth).
- "Territories Legislation Amendment Bill 2016". (Cth).
- "Norfolk Island reform".
- French, Robert. "The Referral of State Powers". (2003) 31(1) University of Western Australia Law Review 19.
- Thomas v Mowbray  HCA 33, (2007) 233 CLR 307.
- Family Law Act 1975 (Cth) s 90SD, s 90SK and s 90RA.
- R v Thomas  VSCA 165, Court of Appeal (Vic, Australia)
- Gronow v Gronow  HCA 63, (1979) 144 CLR 513 (14 December 1979).
- Family Law Act 1975 (Cth) s 60A What this Division does.
- Henderson-Kelly, Sandra (2005). "Does the Child Support Sacred Cow Milk Parents of Administrative Justice?" (PDF). Australian Institute of Administrative Law Forum (AIAL Forum). 44: 26–43.
- Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth).
- MRR v GR  HCA 4, (2010) 240 CLR 461 "Judgment Summary" (PDF). High Court. 3 March 2010.
- Family Law Act 1975 (Cth) s 60B(1)(a) Objects of Part and principles underlying it.
- Family Law Act 1975 (Cth) s 79(2).
- Family Law Act 1975 (Cth) s 75.