Family Law Lecture Notes PDF

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Family Law Lecture Notes 2016 Semester 1

Lecture 1 What is family: Human Rights Act 1986 (Cth)- Article 23- The family is the natural and fundamental group unit of society and is entitled to protection by society and the state. The right of men and women of marriageable age to marry and to found a family shall be recognised. Examples of difficulties in defining family:

Re Patrick (2002) 168 FLR 6- Sperm donor parental rights Aldridge v Keaton (2009) FamCAFC 229- cast doubt on Re Patrick, best interest’s paramount not circumstances of conception. Wilson and Roberts (2010) FamCA 734: S.60H- Excluded biological father as parent, mother and her partner considered parents. What is marriage? Marriage Act 1961 (Cth) s5- ‘the union of a man and a woman to the exclusion of all others voluntarily entered into for life’ S88EA- no recognition of overseas same sex marriages Commonwealth of Australia Constitution Act s51- Commonwealth reserve the right to create laws in relation to marriage. Alternatives to marriage: Relationships Act 2008 (Vic) allows a couple to register a same sex marriage. Purpose (s1)- To create a register of domestic relationships within Australia, provide for relationship agreements, provide adjustment for property matters. Requirements (s7)- Must not be married or in another relationship, must concent, evidence of the identity and age, prescribed fee, any other relevant information. Definition of domestic relationship (s35 (1))- A registered relationship, between two people who are not married but are living together as a couple on a genuine domestic basis (irrespective of gender). A relationship that contains financial and personal commitment Function of Family Law:  A family defines and alters our status  Resolve disputes  Physical and economic protection  Property division  To protect the interests of the most vulnerable History of Family Law Legislation: • Family Law Act 1975 (Cth) (‘FLA’) • 1988/1990: By agreement between the States FLA amended to bring children of de-facto parties into the jurisdiction of the Family Court. • The Family Law Reform Act 1995 (Cth): moved from parental rights to parental responsibility (best interests test). • Federal Magistrates Court Act 1999 (Cth): est lower level court for simple matters to be dealt with cheaper and quicker. • Family Law Legislation Amendment (Superannuation) Act 200: Super treated as property and able to be split. • Family Law Amendment Act 2003 (Cth): Rich case: protect the interest of trustees in bankruptcy/creditors.

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Family Law Rules 2004: Pre-action procedures Bankruptcy and Family Law Legislation Amendment Act 2005: see s75(2) (ha): Court must consider the effect of property orders on the interest of creditors and can claw back assets and give to the non-bankrupt spouse. Family Law (Shared Parental Responsibility) Act 2006: s61DA: presumption (unless family violence). Family Law Amendment (Defacto Financial Matters and other Measures) Act 2008: see s.90SM, 90SF) Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011: broader definition of family violence (priority child safety -best interest test).

Constitutional and Jurisdictional Issues: Commonwealth was given the power to make laws regarding marriage, divorce and matrimonial causes to provide uniformity across the federation. Commonwealth Power to Legislate: Constitutional Concurrent powers  S51 (xxi) – general marriage  S51 (xxii) – 2 limbs (divorce/matrimonial causes and an ancillary power in relation to parental rights, custody and guardianship of infants provided it is in relation to divorce/matrimonial causes.  S51 (xxxvii) – matters referred by States.  S51 (xxxix) – incidental powers Also note implied incidental powers. Note: No direct reference to matters such as property, spousal maintenance, de facto relationships, interests of third parties. Matrimonial causes power has a broad definition: an action between parties to a marriage arising out of their marital relationship, probably includes divorce and nullity and historical forms of relief. Although has limited application • Lansell v Lansell (1964) 110 CLR 353: property settlement application must have direct connection to proceedings for divorce/matrimonial cause. (later cases and referral of certain powers from the States have expanded this and are now included in the FLA) States referral of powers: Under s51 (xxxvii)- states have given the power to legislate to the commonwealth on matters relating to: - Parental responsibility - Ex nuptial children - Welfare matters - De facto property matters - Same sex couples property - Child support - Spending time with (residence and contact) Cross Vesting:

Attempt to bring cross vesting legislation in the 1990’s (C’wth exercises state jurisdiction, state exercises C’wth jurisdiction) Re Wakim (1999)- found it was unconstitutional However, the transfer of powers from the Federal courts to the sate courts was found to be constitutionally valid Jurisdiction Conferred by Family Law Act: • S31- original jurisdiction of Family Court • S4(1) – matrimonial cause (not necessarily same meaning as in Constitution) • S39 – jurisdiction in matrimonial causes • Part VII – children • ‘Foreign’ matters – FC will exercise jurisdiction unless ‘clearly inappropriate to do so’- Voth v Manildra Flour Mills (1990) 171 CLR 578 • Enforcement of foreign orders • Child support appeals & some Marriage Act matters Other Jurisdictions: Associated jurisdiction - derived from statute law to the extent the Constitution permits – FLA s33 (limited by ss31, 39 etc) – associated matters that arise in FL proceedings Accrued jurisdiction – The non federal issue must form an integral part of the federal issue which is being considered. ie: • C & C; [2001] FamCA 459: H and 3rd party joint tenants of matrimonial party – Court could join third party to determine ownership of property because one justiciable controversy between the 3 people. • Warby v Warby (2002) FLC 93-091 (W’s father paid out mortgage. H used accrued jurisdiction to join third party father in law to FC matter) Family Court: Family court cannot hear matters within Federal Circuit Court jurisdiction (ie Divorce) Delegation of Powers within Family Court to registrars and officers (Part IV Div 6) S37A A registrar can make orders where the proceedings are not in dispute. Appeals: ◦ From Magistrates Court - single Judge in the Family Court ◦ From Federal Circuit Court - Family Court ◦ From Family Court - Full Court of the Family Court – ss93A, 94, 95, 96. ◦ Still believe a justiciable matter? – then to the High Court Federal Circuit Court:  Some exclusive jurisdiction (eg divorce)  General jurisdiction – s 39(5AA)  Transfer to Family Court of ‘big’ or ‘complex’ cases  Appeals to Family Court  Numerous other federal jurisdictions

Courts of Summary Jurisdiction: Magistrates’ Court  Can deal with children’s and property orders made by consent, intervention orders  Cannot deal with Divorce or any defended family matters. Contested matters go back to the FC or the FMC. Marriage:  “The union of a man and a woman to the exclusion of all others, voluntarily entered into for life.” Marriage Act 1961 S5  S88EA- marriage between 2 men or 2 women from another country not recognized in Australia.  There is recognition of regular marriage from overseas S88 and S88D Relationship Registration:  An alternative for same sex couples and heterosexual couples that do not get married  Relationships Act 2007 (Vic) Divorce:  Must be Australian  Have been separated for at least 12 months and 1 day  Have a marriage certificate  Must be no reasonable likelihood of getting back together  Marriage under 2 years- marriage counselling is required  If you have been separated and living in the same residence for any part of the 12 months you will need extra evidence there has been a change in the marriage.  If there are children there must be arrangements for major decisions.  If you apply as sole applicant, must serve notice...