Family Law Act 1975
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The Family Law Act 1975, referred to as the FLA by legal practitioners, is an Act of the Australian Parliament. It has 15 parts and is the main Australian legislation dealing with divorce, parenting arrangements between separated parents (whether married or not), property separation, and financial maintenance involving children or divorced or separated de facto partners.
Purpose and Development of the Act
The Family Law Act was enacted in 1975 by the Australian government, led by then Prime Minister Gough Whitlam. One of the main innovations was the introduction of no-fault divorce. Couples no longer needed to show grounds for divorce, but instead, just that their relationship had suffered an irreconcilable breakdown.
Due to the division of power between the Commonwealth and the Australian states under the Australian Constitution, the Act initially could only deal with children born or adopted into a marriage, it was not until later years that the Family Law Act dealt with matters relating to ex-nuptial children. However, the states referred these powers to the Commonwealth and, until the 2006 amendments to the law, were all located under Chapter VII of the Act. For limitations on recognition of de facto couples inside and outside of Australia see Section 51(xxxvii) of the Australian Constitution.
The Family Law Act has clearly, over time, been one of the most controversial pieces of Australian legislation and has been subject to numerous changes and amendments since its creation. A great number of amendments have reflected the political climate of the times: liberal Australian governments, such as those led by the Australian Labor Party, strengthened the relevancy of non financial contribution of the stay-at-home mother in property matters; conservative governments, such as those led by the Liberal Party of Australia, have furthered the wishes of fathers' groups by extending the rights and responsibilities in negotiating parenting arrangements.
The 2006 amendments changed the way matters involving children are dealt with. These included:
- a progression towards compulsory mediation (before Court proceedings can be filed, in an effort to ensure matters do not reach litigation),
- greater examination of issues involving family violence, child abuse or neglect,
- more importance being placed on a child's family and social connections, and
- a presumption that parents have equal parental responsibility - NOT equal parenting time.
- encouraging both parents to remain meaningfully involved in their children's lives following separation, provided there is no risk of violence or abuse.
The original 1975 Act revolutionised the divorce law of Australia (or, as termed in the law, "dissolution of marriage") by replacing the previous fault grounds with the single ground of irretrievable breakdown, established by separation and living apart for a period of twelve months. It also reduced the time for a decree nisi for a divorce to take effect from three months to one month.
Amendments in 2004 abolished the provisions dealing with "decrees nisi" or "decrees absolute" and changed the term dissolution of marriage to divorce. The twelve-month separation requirements remained, subject to some exceptions, and the one-month waiting period for a divorce order to take effect remained.
The Act has been designed to apply to all matters regarding the custody and welfare of children in Australia, regardless of the relationship between the parents. The relevant provisions are found in Part VII of the Act, which were amended significantly in 1995 and again in 2006, and 2011.
Children's matters are determined on the basis of who the child will 'live with' and 'spend time with' (terms which were formerly labeled 'residence' and 'contact' respectively). Although the term custody often refers to where children live, the concept was abolished in 1995 with the Family Law Reform Act. The concept of custody gave much wider decision making powers to the parent with whom children lived, than either the concept of 'residence' or 'live with'. Since 1995 both parents legally have the same (but not shared) parental responsibility for children, regardless of where and with whom the children live, until and unless a court makes a different order (s61C).
Parental responsibility is the ability to make decisions that affect the day-to-day and long term care and welfare of the child, and can include things such as what school they attend and what their name is.
The Act does not specify that the person with whom the child is to reside or spend time with must necessarily be their natural parent, and provision is made under section 65C for anyone 'concerned with the care, welfare or development of the child' to apply to the Court for orders. In all proceedings, the paramount consideration is the 'best interests of the child', and the Court will not make an order that is contrary to these interests (section 60CA).
If there is a dispute about parenting matters and the case is placed before a court, then the Court must apply a presumption that it is in the best interests of children that their parents have equal shared parental responsibility for the children (section 61DA). In practical terms this means that parents must consult one another about major decisions affecting the care of children (but not day-to-day decisions), whereas without that order parents can make decisions together or without consulting each other. The presumption does not apply in circumstances of family violence or there has been any abuse (including sexual abuse) of a child, a parent or any family member living with the child.
There is no presumption of equal time with the child, however, if the presumption of equal shared parental responsibility has not been mitigated, the Court must consider allocating it. If the decision is made to not allocate equal time in such circumstances, then the Court is required to consider allocating 'substantial and significant' time instead (section 65DAA).
Substantial and significant time includes weekends, weekdays, special days and holidays, and in practical terms usually means more than every second weekend.
The basis on which who the child lives with and spends time with (and how much time is spent) is determined firstly with reference to the best interests principle under section 60CA. What is in the child's 'best interests' is determined with reference to the primary and secondary considerations found under section 60CC, and it is by reference to these factors that argument proceeds in the Federal Circuit Court and the Family Court of Australia. Full custody (a 'live with' order) will usually be awarded to the parent who is better able to demonstrate that they can meet the child's best interests.
Australian courts have relied on these legal concepts about "best interests" to conclude that Australia is a partial shared parenting country, but has not yet evolved to become an equal shared parenting country, like The US, New Zealand or the Scandinavian countries. Courts have nonetheless determined that partial time with fathers will occur in most contested disputes, somewhat regardless of concerns about the fathers character in some instances. Such outcomes have been criticised by anti-domestic violence campaigners, who bemoan the lack of funding for the Courts.
Nonetheless of the 1.3 million Australian parents who have divorced since the enactment of The Family Law Amendment (Shared Parental Responsibility) Act 2006, Australian Family Courts, relying largely on predictions from psychologists, have determined that equal shared parenting is appropriate in less than seven reported court cases. That includes denying primary care to house husbands who were previously the primary care givers for children. As Courts continue to flounder with the ever increasing number of parenting disputes generated by their stance,resolution of parenting disputes now consumes over a quarter of childhood. Equal shared parenting is nonetheless gaining growing acceptance in middle class Australia, outside of the Court system.
Overall, however, the most usual outcome, least in the first few years post separation, is that the children will live mostly with their mother and see their father every second weekend and some part of some mid week night. Unsurprisingly, the Courts view that shared parenting does not include equal shared parenting, and that prolonged litigation is itself in the best interest of children, has likewise provoked strong responses from Fathers Groups and their supporters.
Inter state relocation cases have also proved especially difficult. Courts try to balance a mothers need to re partner, or reconnect with her own family for support, or to find work in another state, with a separated father's ability to see his children. Where children are older courts tend to favour not moving the children.
It is very common in contested divorces for children's passports to be held by one parent or the Court, and for all foreign travel to require the approval of judges. There are, again, no written rules or presumptions. Generally travel to similar "Hague convention" countries is permitted unless one parent is a national of a country that will not permit a child's repatriation. The practical result of a lack of rules and the high cost of Court applications is that, post divorce, the majority of such children simply do not enjoy the same level of overseas travel as their friends.
Part VIII of the Act is concerned with the distribution of property after a marriage breakdown, and the Court has broad power under section 79 to order property settlement between parties based on a number of factors regarding 'contribution' and 'future needs'.
Until 1 March 2009 a property dispute had to arise out of a matrimonial relationship. After many years the Federal government accepted powers referred to it by the States to include all de facto couples (including same sex couples) under the Family Law Act. The changes passed by the Labor government came into effect in March 2009. Prior to this de facto and same-sex couples did not have the same property rights as married couples under the Act, and so had to rely on their state's de facto relationship legislation. Such claims were often much harder to prove than under the Family Law Act, and did not include all the same considerations as under the Family Law Act,and could result in a more uneven or diminished distribution of property than would otherwise be possible.
It is necessary to bring a property claim before or within 12 months of the divorce occurring or two years of separation for de facto couples, although unlike property proceedings in various other countries, the two usually occur separately.
A standard section 79 property adjustment has 4 steps:
- 1. Identify the marital assets and ascribe a value to them
- The assets which may be distributed under the Act include the totality of the parties' joint and several assets. The amount of property is determined at the date of hearing rather than at the date of divorce, so this can also include property acquired after separation. Superannuation is also considered to be a marital asset under section 90MC, but will not be available for distribution until it 'vests'.
- 2. Look at each party's contributions to the marriage under section 79(4)
- This section of the Act contains a list of factors by which the Court can determine who contributed what to the marriage. Broadly, the contributions can be taken as financial in nature (for example, paying off a mortgage) or non-financial in nature (for example, taking care of the children). The party who can demonstrate a larger contribution to the marital relationship will receive a larger proportion of the assets.
- 3. Look at each party's financial resources and future needs under section 75(2) and adjust accordingly
- 4 The court then considers whether the proposed distribution is just and equitable
- After the parties' contributions have been established, a final adjustment is made according to their individual future needs. These needs can include factors such as an inability to gain employment, the continued care of a child under 18 years of age, and medical expenses. This is often used to account for a party who has not shown a great deal of substantive contributions, but will require money to live on as a result of factors largely outside of their control.
The system results in payments to wives (economically weaker spouses) between 50% and 70% of family wealth, largely reflecting the relative wealth of the couples. thus the higher the wealth level, the more even the split is likely to be. Family lawyers nonetheless continue to claim 50% for all husbands and 65% for all wives, almost regardless. Reallocation of family wealth takes between 2 – 4 years, although delays up to 11 years are not unheard of. There remains considerable pressure for reform. Reform options include specifying outcomes in law rather than relying on judicial discretion, more mediation, or making divorce a non lawyer lead process.
Creation of courts
The Family Law Act created the Family Court of Australia, with equal status to the Federal Court of Australia, as a court of record and with both original and appellate jurisdiction. Appeals from the Full Court of the Family Court of Australia (the appellate jurisdiction) are to the High Court of Australia.
In 2000, in a somewhat controversial move, the Australian government created the Federal Magistrates' Court of Australia as a second court to handle matters under the Family Law Act. Appeals from the Federal Magistrates' Court are to the Family Court of Australia, but its decisions are not considered inferior to the Family Court.
Western Australia has continued to refer its family law matters to the Family Court of Western Australia by virtue of the Family Court Act 1997 (WA).
Powers of the court
The Family Law Act gives the Court powers to make orders to restrain domestic violence, dispose of matrimonial property (including resources such as superannuation), parental responsibility, the living arrangements of children and financial maintenance for former spouses or children.
The Court retains its ability to hand down punitive sanctions in a number of areas where parties do not comply with Court orders. In the most extreme cases, as confirmed by the 2006 Amendments, this can include sentences of imprisonment (up to 12 months), fines, work orders, bonds and the like. In most cases, however, the most effective method of penalising a person is to award legal costs against them. In fact, the 2006 Amendments encourage this to be used as a sanction where people make improper or false allegations about someone else before the Court.
The Family Law Act 1975 recognises that polygamous marriages may be lawfully entered into in countries other than Australia and grants rights under the Act to participants of these polygamous marriages.
The Family Law Act 1975 recognises 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.
The default position in family law proceedings is that each party pays his or her own costs. The Act also abolished prison as a penalty for maintenance defaulters and imprisoned those held in contempt of the court.