Family law Notes - Lecture note 1-12 PDF

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Detailed notes of family law. ...

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Family Law Exam Notes 2017

Olivia Sansbury - 1188791

Family Law System Family Law Family law deals with the following area of law:  The laws relating to marriage: o Divorce applications  Finalising a marriage so that each party will be free to remarry o Declaration of the validity of marriage  Declaring marriage to me valid o Decree of nullity  Declaring marriage to be invalid  Laws relating to separation o Arrangement for children o Property settlement  Financial support for family members o Spousal maintenance o Child maintenance o Child support  Laws relating to family behaviour o Application for a domestic violence protection order o Application for a child protection order  Laws protecting the welfare of children Family –  Legal definition involves the concept of nuclear heterosexual family  Lacks a definition o Need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society: s 43(b) Family Law Act  Universal Declaration of Human Rights – Article 16 o The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.  Traditionally family is Australia – o Nuclear family: Mehmet  Re Patrick o Comprised of a mother and co-parent o Shift away from the indicia of biology and marriage o Can be hetro-nuclear or homo-nuclear o Flexible wide meaning Key trends in Australian Families  Less people marrying  More people in de facto relationships  Less people having children  More people living together before marriage Family Law System Australia has three courts in which family law matters can be heard, they are:  Family Court of Australia  Federal Magistrates Court  State Magistrates Exam Notes

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There is an extended network of service providers related to family law.  Extended system – o Extended family law system o Legal Aid Queensland o Child Support Agency o Centrelink o Family Relationship Centres and other family dispute resolution and parenting program providers o Contact Centres Federal laws  Family Law Act 1975 (Cth)  Marriage Act 1961 (Cth)  Child Support (Assessment) Act 1989 (Cth) State laws  Domestic and Family Violence Protection Act 1989 (Qld)  Child Protection Act 1999 (Qld)  Adoption Act 2009 (Qld) Court system  Family Court of Australia  Federal Magistrates Court o has exclusive jurisdiction in relation to adoption and the validity of marriages and divorces o established to –  ease the workload of the Family and Federal Courts  provide an alternative for families that would be quicker an cheaper than the current process o jurisdiction –  almost the same as the Family Court  NO jurisdiction to determine nullity disputes or to make declarations concerning the validity of a marriage  Almost all divorces handled by this court  State Magistrates Courts o Usually used by outer suburb and regional area practitioners o Used for applications for protection orders to protect victims of violence o Jurisdiction to deal with –  Application to approve an agreement that parties have entered into (consent order)  Contested children and property matters over $20,000, only if both parties consent to them to be heard in this court  If no consent, must go to Family or Federal Magistrates Court  Child support cases  Children’s Court  QCAT: Queensland Civil and Administrative Tribunal o Reviews decisions by:  

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Exam Notes

Department of Communities including Child Safety services (the department) Commission for Children and Young People and the Child Guardian (the commission)

 State Supreme/District Courts

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Matter to be heard in Family Court of Australia/Federal Magistrates Court 1. International child abduction. 2. International relocation 3. Disputes as to whether a case should be heard in Australia. 4. Special medical procedures (of the type such as gender reassignment and sterilisation). 5. Contravention and related applications in parenting cases relating to orders which have been made in FCoA proceedings; which have reached a final stage of hearing or a judicial determination and which have been made within 12 months prior to filing. 6. Serious allegations of sexual abuse of a child warranting transfer to the Magellan list or similar list where applicable, and serious allegations of physical abuse of a child or serious controlling family violence warranting the attention of a superior court. 7. Complex questions of jurisdiction or law. 8. If the matter proceeds to a final hearing, it is likely it would take in excess of four days of hearing time. Transfers 1. Either Court on its own motion or on application of a party can transfer a matter to the other Court. 2. There is no right of appeal from a decision as to transfer. Marriage Marriage – the union of a man and a woman to the exclusion of all others, voluntarily entered into for life : s 5 Marriage Act; Hyde v Hyde  Involves many elements: Todd v Todd o Dwelling under the same roof o Sexual intercourse o Mutual society o Protection o Recognition of existence of the marriage by both spouses in public and private relationship  Corbett v Corbett (Purpose of marriage) o For procreation o Should be between a man and a woman  Marriage is separate from religion: Re Kevin  Hyde v Hyde o Voluntary union o For life o One at a time o man and woman o to the exclusion of all others Section 5(1) of the Marriage Act  In this Act, unless the contrary intention appears: o Ambassador includes Minister, Head of Mission and Charge d Affairs o Approved organisation means an organisation approved or deemed to be approved under Part IA o Artificial conception procedure includes:  Artificial insemination; and  The implantation of an embryo in the body of a woman o Australia includes Norfolk Island o Australian Consular Officer and Australian Diplomatic Officer have the same respective meanings as in the Consular Fees Act 1955 o Authorised celebrant means:  A minister of religion registered under Subdivision A of Division 1 of Part IV; or  A person authorised to solemnised marriages Exam Notes

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 A marriage celebrant o Celebrant register charge: o Chaplin means a chaplin in the Defence Force o Charge payment day: see subsection 39FA(2) o Consul includes Consul-General Law relating to marriage  Divorce application  Declaration of validity of marriage  Decree of nullity Law relating to separation  “No fault” system in Australia  Arrangements for children o Lawyers act on behalf of parents and in some cases a lawyer is appointed to act to represent the children’s interests: independent children’s lawyer: ICL  Property settlement  Financial support for family members  Spousal maintenance  Child maintenance  Child Support Law relating to family behavior  To protect a person/s from family violence  To protect a child from abuse  Laws protecting the welfare of children Laws protecting the welfare of children  Special medical procedures Same Sex Marriages Same –sex marriage is not legal in Australia: s 88EA Marriage Act Arguments for –  Some arguments for same–sex marriage  A human right in a liberal democracy  Equality before the law arguments o Entitlement to equality and the equal protection of the law  Rule of law – consistency, fairness, equality  In some polls the majority of Australian society does not support same-sex marriage Arguments against  religious arguments o Essential purpose of marriage is procreation  Heterosexual marriage is the entity that can best support the concept of ‘family’ o ie social unit best able to produce children  In some polls the majority of Australian society does not support same-sex marriage  Universal Declaration of Human Rights 1948 - Article 16 o 1. Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution. o 2. Marriage shall be entered into only with the free and full consent of the intending spouses. Exam Notes

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3. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State. Universal Declaration of Human Rights - Article 7 o All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination o

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Internationally  In some countries same-sex marriage is legal. For example: o Belgium, Canada, Iceland, Netherlands, Norway, Portugal, South Africa, Spain, and Sweden and several states in USA  In many more countries couples are permitted to register their relationship eg. in some states in Australia

De facto relationships Meaning of de facto relationship: 1. A person is in a de facto relationship with another person if: (a) The persons are not legally married to each other; and (b) The persons are not related by family (see subsection (6)); and (c) Having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis. i. Paragraph (c) has effect subject to subsection (5). Working out if persons have a relationship as a couple 2. Those circumstances may include any or all of the following: (a) The duration of the relationship; (b) The nature and extent of their common residence; (c) Whether a sexual relationship exists; (d) The degree of financial dependence or interdependence, and any arrangements for financial support, between them; (e) The ownership, use and acquisition of their property; (f) The degree of mutual commitment to a shared life; (g) Whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship; (h) The care and support of children; i. The reputation and public aspects of the relationship. 3.

No particular finding in relation to any circumstance is to be regarded as necessary deciding whether the persons have a de facto relationship.

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A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.

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For the purposes of this Act: (a) A de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and (b) A de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.

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When 2 persons are related by family 6. For the purposes of subsection (1), 2 persons are related by family if: (a) One is the child (including an adopted child) of the other; or (b) One is another descendant of the other (even if the relationship between them is traced through an adoptive parent); or (c) They have a parent in common (who may be an adoptive parent of either or both of them). For this purpose, disregard whether an adoption is declared void or has ceased to have effect.

Parents Issues have arisen where child has been born as a result of artificial conception procedure. Refer to s 60H Family Law Act for determination.

60H Children born as a result of artificial conception procedures 1. If: (a) A child is born to a woman as a result of the carrying out of an artificial conception procedure while the woman was married to a man; and (b) Either of the following paragraphs apply: The procedure was carried out with their consent; Under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman and of the man; Then, whether or not the child is biologically a child of the woman and of the man, the child is their child for the purposes of this Act. 2. If: (a) A child is born to a woman as a result of the carrying out of an artificial conception procedure; and (b) Under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman; Then, whether or not the child is biologically a child of the woman, the child is her child for the purposes of this Act. 3. If: (a) A child is born to a woman as a result of the carrying out of an artificial conception procedure; and (b) Under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of a man; Then, whether or not the child is biologically a child of the man, the child is his child for the purposes of this Act. 4. If a person lives with another person as the husband or wife of the first mentioned person on a genuine domestic basis although not legally married to that person, subsection (1) applies in relation to them as if: (a) They were married to each other; and Exam Notes

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(b) Neither person were married to any other person. For the purposes of subsection (1), a person is to be presumed to have consented to an artificial conception procedure being carried out unless it is proved, on the balance of probabilities that the person did not consent.

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Marriage, Nullity and Divorce Marriage Marriage – the union of a man and a woman to the exclusion of all others, voluntarily entered into for life: s 5 Marriage Act; Hyde v Hyde  Involves many elements: Todd v Todd o Dwelling under the same roof o Sexual intercourse o Mutual society o Protection o Recognition of existence of the marriage by both spouses in public and private relationship  Corbett v Corbett (sex-change case) o For procreation o Should be between a man and a woman o Marriage between on e man and a person who has undergone a sec-change operation to become female is not accepted must look at Re Kevin  Marriage is separate from religion: Re Kevin  Hyde v Hyde o Voluntary union o For life o One at a time o man and woman o to the exclusion of all others o serial polygamy is permitted  C&D o A union with a hermaphrodite was not a marriage must look at Re Kevin  Re Kevin o When determining persons gender (and subsequent ability to marry) the court will look at a number of factors (psychological and social) o Recognised marriage involving transsexuals  Man an woman includes post-operative transsexuals Term marriage has two basic meanings – (1) act of getting married (2) stat or status of being married Validity of Marriage The validity of marriage will depend upon: • Compliance with essential requirements of the marriage ceremony • the capacity of the parties to marry • the consent of the parties Requirements of Marriage Marriage Ceremony • Those requirements which are essential and noncompliance will result in the invalidity of the marriage: s 23B or s 23(1)© Marriage Act • Those requirements which are non-essential and non-compliance will not result in invalidity of the marriage but may attract a penalty • ss 41-46 Marriage Act set out requirements Exam Notes

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Celebrant • a marriage must be solemnised by or in the presence of an authorised celebrant: s 41 Marriage Act. Such celebrants are – o ministers of religion: s 26 o persons authorized to register marriages: s 39(1) o civil celebrants: s 39(2 Notice • The parties intending to be married must give written notice of their intention to be married at least one month but not longer than 18 months before the ceremony: s 42(1)(a) o Maybe shorted if the celebrant is satisfied that there are reasons to justify this: s 42(5) • provision of birth certificates showing age and place of birth of each party: s 42(1)(b) • certification as to present marital status: s 42(1)(c) Ceremony • may be solemnised on any day, at any time in any place: s 43 Marriage Act • religious ceremony o where solemnised by or in the presence of a minister of religion, may be in any form sufficient to satisfy that religion: s 45(1); Quick v Quick (in complete ceremony) • celebrant ceremony – o must contain words to the effect that the marriage is the union of a man and a woman to the exclusion of all others for life: s 46 o must contain parties saying before celebrant and witnesses word to the effect that they take each other as husband and wife: s 45(2) • certificate of marriage, in correct form: s 50, is proof of the marriage: s 45(3) o where identities of either party an issue, marriage certificate is not conclusive as to that identity: s 45(4)(b) • proof of celebration = assumption of validty: Axon v Axon Essential requirements –  s 48(1) Marriage Act states that all requirements may be complied with, however s 48(2) states that a marriage is not invalid by the reason of all or any of the following (but will incur penalty) o Failure to give the notice required by s 42 of this Act, or a false statement, defect or error in such a notice; o Failure of the parties, or either of them, to make or subscribe a declaration as required by s 42 of this Act, or a false statement, defect or error in such a declaration; o Failure to produce to the authorised celebrant a certificate or extract of an entry or a statutory declaration as required by s 42 of this Act, or a false statement, defect or error in such a statutory declaration; o Failure to comply with any other requirement of s 42 of this Act, or any contravention of that section; o Failure to comply with the requirements of ss 44 or 46 of this Act; o Failure to comply with the requirements of s 13 of this Act.”  Essential elements which will invalidate a marriage are – o That the marriage be solemnised by an authorised celebrant: s 41 o The form of the ceremony be that required by the religion of the authorised celebrant if that celebrant is a minister of religion; and if the celebrant is not a minister of religion, the form of the ceremony must be such that the parties express an intention to take each other as husband and wife before the celebrant and witnesses: s 45  Unauthorised celebrant – where either party believed the celebrant was duly authorised to solemnise the marriage and the form of the ceremony was such as to show that intention by both parties = not invalid: s 48(3) Exam Notes

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Marriage of Minors Historical development of the law in this area can result in confusion when looking at the cases and the provisions Minor - a person who has not attained the age of 18 years: s 5 Marriage Act Marriageable age - age is 18. This means that a person under the age of 18 cannot marry without the authorisation of the court: s 11 Marriage Act  minor must obtain parental consent before marriage: s 13  The requirement for parental consent where a minor wishes to marry is additional to the court’s authorisation required: s 12 o Where court consents = minor is or marriageable age: s 12(3) o Court will take into account the overall situation (such as future permanency of the future marital relationship: Re an Infant  Exceptional or unusual circumstantial –  Must refer to the parties themselves rather than a clase: Re S G  Understood to be sufficiently exceptional/unusual  Pregnancy is not an exceptional or unusual circumstance allowing the court to exercise its discretion: Re K o Marriage must occur 3 months after court consent obtained: s 21  If impracticable to obtain necessary consents or they could only be obtained by unreasonable delay, could apply to a prescribed ...