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.

Laws affecting married and de facto couples

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.^[1] 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.^[2]

The names for de facto and similar relationships in each state and territory are as follows:

De factos relationships not recognised outside Australia

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.^[3][4][5] See also R v Thomas. 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.

Gay marriage is not recognised in Australia. Gay couples are currently treated as de facto couples in relation to parenting and financial disputes.

Laws affecting children

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, it is also mentioned in the Family Law Act 1975.^[6] whilst parenting arrangements are dealt with under the federal Family Law Act 1975.

A government-administered Child Support Scheme enables parents to reach private agreements or one can be required by the Child Support Agency Australia, to make payments to the person who has primary care of a child. 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.^[7] The primary object of this law is to ensure that the Courts always have the "best interests of the child" as the paramount consideration.^[8] 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...."^[7] Many however argue that such an arrangement actually works against achieving this, and today continue to push for further reform.

Almost no Australian fathers win equal parenting time in The Family Court, The Federal Circuit Court, nor The Western Australian Family Court. Instead it is the considered view of these courts that while equal parenting time works in similar countries, equal parenting could not work in Australia. Most fathers are allowed shared time, but never equal shared time, in general being every second weekend and one or two week nights, no matter how engaged a father was prior to the divorce. These views make The Family Court especially controversial.

Property and financial outcomes

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.

See also

• Family Court of Australia
• Marriage in Australia

References

External links

• Australian Family Law Act 1975