Australian family law

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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[edit]

Laws in Australia covering areas such as divorce, children's orders, property division and spousal maintenance are primarily dealt with in the Family Law Act 1975. Since 1 March 2009 de facto couples are covered by the Family Law Act for participating states which conferred their power over de facto to federal jurisdiction.

De Factos not covered outside of Australia[edit]

However because of how the power from state to federal was conferred see Section 51(xxxvii) of the Australian Constitution, de facto couples outside of Australia are not covered by the Family Law Act. This is because there must be a state nexus between the de facto couple and a state as the law can only be applied within a state.[1] [2] There must be a state nexus, between the de facto relationship itself and the Australian state. See sections 90RG,90SD and 90SK, section 90RA, of the Family Law Act. To further explain, if the de facto couple move out of a state of Australia they do not take the state with them so the law cannot apply to them any more. 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 internationally recognised and can be applied outside of the country of marriage.

Other laws on De factos inside Australia[edit]

However, there are numerous other laws affecting couples in marriages, marriage-like relationships and parents, including legislation in each non participating state in Family Law Act, that allows property settlements between de facto couples. The definition of "de facto couple" now includes same-sex partners in all states and in Commonwealth law.

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

State Name Law
New South Wales "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
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 for VictoriaProperty 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

Laws affecting Children[edit]

The family law framework deals with parenting arrangements and ensuring the best interests of children, especially in circumstances where they are at risk or where their parents or carers are separating. Child protection is primarily dealt with on a state and territory basis, under state and territory legislation, whilst parenting arrangements are dealt with under the Commonwealth Family Law Act 1975 and under Section 51(xxxvii) of the Australian Constitution.

There is also a government-administered Child Support Scheme, whereby parents can either reach private agreements or can be required by the Child Support Agency to make payments to the person who has primary care of the child. Since 1989 child support has been assessed under the Child Support (Assessment) Act, 1989 administered by the Child Support Agency Australia.

Australian domestic law also enshrines some of Australia's obligations under international law. Australia is a signatory to 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, Australia passed amendments to its Family Law Act 1975, named 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.

A stated 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...."[3] The primary object of this law is to ensure that the Courts always have the "best interests of the child" as the paramount consideration. Many however argue (among them legal minds such as Mitch Minehan) that such an arrangement actually works against achieving this, and today continue to push for further reform.

See also[edit]

References[edit]

  1. ^ French, Justice (Feb 2003). "The Referral of State Powers Cooperative Federalism lives?". Western Australia Law Review. .
  2. ^ Thomas(2007) 233 CLR 307, [208] (Kirby J).
  3. ^ ComLaw Acts - Family Law Amendment (Shared Parental Responsibility) Act 2006 (46)

External links[edit]