Family Law Exam notes - seminar answers and questions week 1-13 PDF

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Family Law Exam notes - seminar answers and questions week 1-13 ...

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LLB303: Family Law Exam Notes Seminar Questions and Answers Week 1: Introduction to Family Law 1. What does ‘family law’ in Australia deal with? Where does Australia’s ‘family law’ come from?  The FLA does not deal with the regulation of families as such but what happens upon relationship breakdown: formal termination, parenting issues, financial issues.  There is no definition of family in the FLA.  Commentary suggests that perhaps the law favors/assumes/works better for a particular type of family / traditional model / doesn’t work as well with non-traditional forms of family.  “family law” really developed from “marriage breakdown” law in England  Marriage originally less formal - economic imperative then religious.  Social support and inheritance – only those born of marriage entitled to inherit. Property protection.  Modern divorce didn’t really emerge until 1857 in England – Divorce and Matrimonial Causes Act. Adopted by Australian colonies (each colony own legal system).  Set grounds for divorce – fault based – adultery etc. Easier for H. than W. Women usually disadvantaged.  Federation 1901 – Constitution. Fed Plt given powers under s. 51 including: 51 xxi marriage power 51 xxii “divorce & matrimonial causes”  But Fed parliament left states as they were pre-1901 and did not enact any laws until 1959 – Matrimonial Causes Act 1959 (Cth) (MCA) and then the Marriage Act 1961 (Cth).  Family Law Act 1975 (Cth) replaced MCA in 1976.  ‘Family’ a fluid concept.  Still foundational unit of society ([1.1 text]) but the form of families has changed – de-facto, same sex couples, split families, single parents, no children families, extended families, cross-cultural conceptions of family.  Family law NOT really about families at all but really the law governing the formalizing of and the breakdown of relationships – really relationship breakdown law (note comments p. 1 – disputes usually at very stressful time psychologically). 2. What do the ABS statistics quoted on p. 26 suggest about ‘family’ in Australia? 3. How was obtaining a divorce in Australia different before the commencement of the FLA? • Matrimonial Causes Act 1959 (Cth) (MCA) applied (see [1.38-1.39]). • MCA provided for 14 separate grounds of divorce including adultery, desertion, cruelty, insanity…and one “no fault ground” - “irretrievable breakdown” evidenced by 5 years’ separation. • By 1970s, unhappiness with “fault” system – MCA not seen as meeting social needs of the time. • FLA did away with the MCA’s 14 grounds and has one single ground – “Irretrievable breakdown” evidenced by 12 months’ separation (s. 48 FLA).  FLA came into force 1976. Major reform of resolution of disputes arising from marriage.  “No fault”, focus on principles of “welfare”.  Applies to ALL states (Except WA, which has its own FC)  Created Family Court.  Will look at marriage, divorce and nullity in more detail in week 2.  Traditional common law definition of marriage [1.52] suggests marriage has special status – “the voluntary union for life of one man and one woman to the exclusion of others” –  This was, until recently, in s. 5 Marriage Act 1961 (Cth). Now it is ‘the union of 2 people to the exclusion of all others, voluntarily entered into for life’.  Really ‘for life’? - idealised view given easy access to divorce. See by contrast the view expressed in Seidler v Schallhofer at [1.53].  De-facto couples not originally covered by FLA. Why not?

De-Facto Relationships Act 1984 (NSW) first legislative recognition for property settlements.  Amended 1999 to incorporate same sex defacto couples (Property Relations Act 1984 (NSW)) ([1.57]).  All defacto property settlements where termination after 1 March 2009, are now under new Part VIIIAB FLA...how was this possible? [1.57].  Until December 2017 no statutory recognition of same-sex marriage in Australia despite other countries recognizing. Why not? (para 1.60 – 1.63).  43. Principles to be applied by courts The Family Court shall, in the exercise of its jurisdiction under this Act, and any other court exercising jurisdiction under this Act shall, in the exercise of that jurisdiction, have regard to: (a) the need to preserve and protect the institution of marriage as the union of 2 people 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 of society, particularly while it is responsible for the care and education of dependent children; (c) the need to protect the rights of children and to promote their welfare; (ca) the need to ensure protection 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 to their children. 4. What type of disputes are dealt with under the FLA ? Alternate Dispute Resolution (ADR) Common ADR methods  Negotiation – parties have control over content/issues, venue, decision.  Mediation – 3rd party has little input. Gets parties to explore & present options but doesn’t comment on merits or law.  Conciliation – third party helps parties resolve – has input re law and options.  Arbitration – arbitrator hears each side and makes decision – imposed decision like court but some party input re venue, arbitrator. 5. Why is there such an emphasis on alternate dispute resolution (ADR), specifically family dispute resolution (FDR) in family law? What specific requirement is there in the FLA regarding FDR in parenting matters? • Strong emphasis on alternate dispute resolution in FLA (ie that parties resolve the matter without having to go to court, or if proceedings commenced, before hearing).  Why? Costs, emotional strain, imposed solution v own solution. Since 2006, mandatory Family Dispute Resolution (FDR) introduced.  Can’t commence parenting matter without certificate from family dispute resolution practitioner obtained (s. 60I(7)FLA) subject to exceptions (s. 60I(9)).  Get away from adversarial framework; focus on child’s rights, not parents’ rights; break win/lose dichotomy.  Property matter - “Pre-action procedures” (Schedule 1 Family Law Rules 2004) - must put offer to other side, receive response before commencing.  Each step along way, parties urged to resolve (eg Conciliation conference).  Attempts to make FLA less adversarial (eg LAT in child matters – Part VII Div 12A FLA).  Note recent developments re Collaborative Practice – what is it? [See 2.43] 6. What aspects of family breakdown might make ADR/FDR unsuitable for resolving disputes? 7. What was the basis for the Federal Parliament’s specific power/s to enact the FLA and its ongoing power to enact amendments? • Federation 1901 – Constitution. Fed Plt given powers under s. 51 including: - 51 xxi marriage power - 51 xxii divorce & matrimonial causes, and in relation thereto, parental rights and the custody and guardianship of infants. • FLA (and Marriage Act, 1961 (Cth)) made under these powers. • s.51 xxxvii – referral by states 

• s. 51 xxxix ‘Incidental power’ – this also enables Plt to enact things like Child Support law. • Powers not entirely clear and had limitations (4.11 – 4.27). 8. a) S. 51(xxi) of the Constitution is known as the ‘marriage power’. What did Justice McHugh say by way of obiter in Re Wakim; Ex parte McNally (1999) 198 CLR 511, about the meaning of the word ‘marriage’ under that power? and; b) what was significant in relation to the High Court’s decision in Commonwealth v Australian Capital Territory [2013] HCA 55, about that same power and Justice McHugh’s words? • 51 xxi Constitution - marriage power - gives Cth Parliament power to make law re marriage. ACT introduced its own same sex marriage law 2013. • In Cth v ACT , HCA said only Cth can make law about marriage – covers the field - all types of marriages - and ‘marriage’ under the Constitution therefore covers marriage between 2 people. • So…HCA confirmed only Cth can make law for same sex marriage. Made it clear that a Cth law for same sex marriage would be valid but States/Territories cannot legislate. c) Why was same sex marriage not introduced immediately following Commonwealth v Australian Capital Territory? What legislative amendment has since been introduced to make it a reality? – NOTE, you wont find answer to this last question in the text book!! Some research required! d) What was definition of marriage prior to the abovementioned amendment? Where did that definition come from? 9. Given the restrictions on Federal power to enact legislation, does the FLA apply to: a) disputes relating to ex-nuptial children;  Initially, FLA could not cover ex-nuptial kids. All States (except WA) referred powers re ex-nuptial children to Cth between 1986 and 1999. Non- married and same gender parents can now access FLA re parenting matters (see [4.91]) b) property disputes between de-facto couples. Why/why not? Pre March 2009, no coverage for property if never married because no connection to matrimonial cause. All states (except WA) have since referred powers – now Part VIIIAB deals with de-facto property in same way as married (subject to pre-requisites) (see [4.92]).  s.31 FLA - FCA has jurisdiction re matters under FLA and jurisdiction referred to it by other Acts (eg Child Support) • Act was predominantly concerned with disputes between those who are married or disputes arising from marriage. • Jurisdiction re children’s matters s.69E (note child does not have to be an Australian citizen).  Divorce: s.39(3) must be satisfied. No need for marriage in Australia BUT one party must be citizen, domiciled in Aust. or ordinarily resident. No jurisd. if married in Aust. but neither party citizen, domiciled or ordinarily resident.  other matters (eg property) s.39(4) – no need for any property in Aust. If other requirements met. 10. In what courts are family law matters heard? What avenues lie for appeal of a decision of those courts? • See 4.111 – 4.129 • Family Law matters dealt with in Family Court, Federal Circuit Court and also Local Court. • Who hears matters ? FCA - Deputy Registrars, Registrars, Judges (powers determined by FLA & Rules). • FCCA (formerly FMC) – Judges • Local Court – Magistrates • Judge of FCA same status as Fed Ct. or State Sup. Ct. Judge. FCA is “superior court of record” • Appeal from FCA to Full Court FCA then High Court of Australia (HCA) with special leave or certificate from Full Court (see 4.128-24.129]). • Family law highly discretionary – can appeal FCA decision (usually single judge) to Full Ct FCA

• Must be question of law or important public policy for HCA. • Jurisdiction limited by Cth parliament’s power to make law in this area under Constitution. FCCA (formerly FMC) – introduced in family law matters to make simpler/quicker. • Which court…FCA or FCC? Determinant is complexity/time. FCC starting point most matters. • Appeal to Full Ct FCA, but could be single judge if chief judge considers appropriate (s. 94AAA). If to Full Court, further appeal lies to High Court but only with special leave. • Appeal from Local Court usually to one judge and usually a hearing “de novo” (s.96). • All divorces currently through FCC. • Changes announced 2018. • Local Court – hears FLA matters subject to jurisdictional limits – no final child orders unless consent, limit re value of property. Tactically, good for interim orders – costs, time. Family Law and Change  Area of ONGOING CHANGE - 1996 and 2006 changes emphasis on “shared parenting”, dispute resolution, less adversarial process, 2009 new part VIIIAB, assisted conception, Family Violence amendments 2012, Marriage Act changes 2017 Week 2: Legal Recognition and regulation of relationships; Marriage, defacto relationships and civil unions. Divorce, Nullity and Termination. Relationships and Marriage • Monahan and Young at [5.1] marriage as the “basis of the legal family”. • Marriage has moved from something utilised for economic purposes to modern conception of a union based on affection with purpose of raising kids, & mutual economic and emotional support. • Given greater legal recognition of non-married couples, should marriage still have any ‘special’ status (see comments at [5.5]? • Marriage still popular…but what trends are there re marriage, divorce etc? • Remarriage creating new issues – do first wives/kids get priority? Should they? 1. What is the key legislation for the regulation of marriage? What legislation covers divorce? • Marriage Act 1961 (Cth) regulates marriage. • S. 5(1) Marriage Act 1961 (Cth) definition section, old definition: The voluntary union for life of one man and one woman to the exclusion of all others •Definition now reads: "marriage " means the union of 2 people to the exclusion of all others, voluntarily entered into for life. Other key provisions of Marriage Act: • Ss. 10-21 – marriageable age – restrictions • S. 23B – what makes a marriage void • Ss. 25-69 – who can legally solemnise a marriage. • Ss. 88A – 88G – foreign marriages • DIVORCE - Part VI of the Family Law Act 1975 (Cth) covers divorce. 2. What was the significance of the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth) in terms of the definition of the term ‘marriage’ and what is its connection to the High Court’s decision in Commonwealth v Australian Capital Territory [2013] HCA 55 discussed last week? • Marriage Amendment (Definition and Religious Freedoms) Act 2017 • S. 3 amended s. 5 of Marriage Act to remove reference to man and woman and instead say: "marriage " means the union of 2 people to the exclusion of all others, voluntarily entered into for life. •Also repealed s. 88EA re lack of recognition of overseas same sex marriages. • Most of rest of legislation relates to freedom of religious groups and religious celebrants to refuse to marry non-hetero couples etc. • HCA in Cth v ACT (2013) made it clear that ‘marriage’ in s. 51xxi of constitution includes marriage between 2 people (see week 1 slides) and that therefore Federal Parliament had sole power to make law as to marriage – and Federal Parliament therefore entitled to make law prohibiting or allowing same sex marriage (SSM). • States and Territories could therefore NOT legislate for SSM.

• Prior to case, there was conjecture as to whether Fed Parliament could legislate for SSM. • “Marriage is a central and fundamental institution…provides the best environment for the raising of children” • The “vast majority of Australians would agree [with the Hyde definition]…” • What do you think? How does this sit with the High Court’s view in Cth v ACT (2013) and 2017 plebiscite? 3. Note the comments of former Federal Attorney General, Phillip Ruddock’s comments at 5.4 re the 2004 amendments. How does that view sit with the High Court’s decision in The Commonwealth v Australian Capital Territory and the view expressed in the 2017 plebiscite? • ‘to the exclusion of all others’ means that marriage has been seen as monogomous in our society [ 5.5] • Polygamous marriage (being married to 2 or more people) not valid. • Polygamous marriages valid overseas are recognised here for FLA purposes (eg child disputes, financial disputes) – s. 6 FLA. – see [5.8]. • Bigamy – offence to marry someone else whilst already married - s. 94 of MA OR to marry someone you know is already married – limited defences including belief spouse was dead (s. 94(2) MA (see [6.18]) but the defence doesn’t validate the marriage. • Aboriginal customary marriage - why not valid [5.9]? What are legal/constitutional barriers? • Is any disadvantage re property cured by Part VIIIAB FLA? • ALRC recommendations in 1986 re recognition of polygamous Aboriginal customary marriage for FLA purposes not adopted but perhaps covered by Part VIIIAB. • Should law change here? • [5.10] – [5.12] Same sex marriage (SSM) not recognized prior to 2004 amendment in any event (and celebrants words at s. 46 MA mirrored common law) but there was no statutory clear definition and there was a growing push for recognition from some groups. • Remember comments of McHugh in Re Wakim (1999) last week (see text at 4.3) – meaning of marriage in 1901 not same as today – could in future be “a voluntary union for life between two people…” – HCA agreed with this proposal in Cth v ACT (2013). • What was position re marriage by a transgender person? • See [5.12-5.13], in particular Re Kevin (2003). What was Commonwealth position? What did court in Re Kevin decide? • ‘Man’ and ‘woman’ not technical terms – ordinary meaning. A post-operative transsexual should be regarded as a member of his or her reassigned sex. • This is all largely irrelevant now because of the 2017 legislation. • “Voluntary union” [5.14] – must be consent or it is void – S.23B(1) MA “consent” of parties necessary. Consent can be invalid if fraud, duress, mistake, mental incapacity - will be discussed later in context of nullity. • “for life” (text [5.15] – enough that parties intended it. No issue at law – a “hoped for state of affairs” (Marriage of S (1980))? • Remember Seidler v Schallnoffer (1982) ([1.53])“…an arrangement terminable by either party on one year’s separation, really one year’s notice.” • Must be ‘capacity’, ‘consent’ and compliance with ‘essential formalities’ [5.26]. • 3 key requirements re capacity: 1) free to marry (ie real consent and not already married); 2) not in ‘prohibited relationship’; and 3) marriageable age. • Not ‘free to marry’ if already married and that marriage not terminated by death or divorce (or initial marriage void). • “prohibited relationships” – what are they? [5.30]- [5.33]. Grounds for void marriage - s23B(1)(b) between parties. See also [6.21-6.22]. • “marriageable age” – ss.11,12, 13, 14, 15 and 16 of MA – set out age and exceptions with court order (s. 12) and parental or court consent (ss.13 -16)) (see 5.34 – 5.52 & 6.52 – 6.54).

• 18 years (s.11) but court can give Ok where one party under 18 but at least 16 if circumstances ‘so exceptional and unusual as to justify the making of the order’(s. 12). • Pregnancy per se not necessarily enough (see cases 5.39-5.42). • What about ‘child bride’ cases – religious marriage. Would they be authorized on a civil basis? • Offence – s. 95(2) - $500 fine or 6 months imprisonment. • Formalities - ss25-59 “authorized celebrant”, witness requirements, Notice of intention to marriage (see 5.53 - 5.56). • Seven requirements from ss. 41-46 MA (5.56 – p. 256). Read through them. • Note if authorized celebrant was NOT authorized, marriage not invalid if parties believed he/she was authorized (ss 48(3) and 83(2) MA). • Failure to meet formalities wont necessarily render void [5.82]. • But second marriage ceremonies void if already married (see [5.78-5.80]). • S. 88C(1) & 88D(1) MA: subject to exceptions, marriage recognised O/S as valid at law in is valid in Australia (88E – applies to marriages valid at common law as well). • Exceptions (s. 88D(2)-88D(5)): eg one party already party to marriage recognised as valid in Australia, one party domiciled in Australia and either not marriageable age , prohibited relationship, not domiciled in Australia and either party under 16) (text [5.67 – 5.73). 4. What is “polygamy” and what is the status of “polygamous” marriages under Australian law? How does this impact on Aboriginal customary marriages? What is “bigamy” (see 5.29 and 6.18-6.19)? • All states and territories have own defacto legislation that includes recognition of same sex couples. • Remember from week 1 - Parenting and property rights now under Pt VIIIAB FLA for “defacto” relationships terminated after 1/3/09 - all states except WA. Referral of powers. • Must meet requirements and definition. • Some debate - should property rights be equated to those of married couples? [5.89] Should there be a distinction between how married and de-factos are treated? • What is a defacto relationship? For FLA see s. 4AA (1) and 4AA(2) (see 5.94 – 5.97). • Note comments on cases since Part VIIIAB came in – when will there be a defacto relationship for purpose of FLA? Moby v Schulter (2010), Jonah v White (2011) and Keaton v Aldridge (2009) (5.101-5.103 & 5.107-5.109). - What will be ‘genuine domestic basis’? Key requirement. Individual v shared life. No one 4AA(2) factor decisive. • Can have ...