Family Law - Summary - USYD LAWS5132 PDF

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Topic One: Historical Background and Constitutional Powers Areas covered: 

Brief history of the development of family law

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Commonwealth and State Power in family law

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Family Law Act 1975 (Cth)

Brief History of the Development of Family Law:  Australian family law has its origins in the Christian religion and English Law.  The term 'ecclesiastical law', strictly means the law of the church. Under English law, the ecclesiastical courts exclusively exercised jurisdiction in matrimonial cases until the middle of last century.  The matrimonial jurisdiction concerned both the status of marriage and legitimacy of children.  The English ecclesiastical courts granted four principal forms of matrimonial relief (or decrees): 1. Decree of nullity of marriage (commonly called an annulment when a marriage is legally void); 2. Decree of divorce “a mensa et thoro” (commonly called a judicial separation which legally relieved the parties from their obligation to live together); 3. Decree of restitution of conjugal rights (an order requiring a party who “left” the marriage to return to the applicant spouse or face excommunication); and 4. Decree for jactiation of marriage (this decree was an order, not like an injunction, preventing a person from falsely declaring him or herself to be married to the applicant).  Ecclesiastical courts do not grant, and have never granted a decree of dissolution of marriage (divorce).  Until the enactment of the Matrimonial Act 1857 (UK) divorce was only possible by obtaining a private Act of the English Parliament (a decree of divorce a vinculo matrimonii). This statute transferred the matrimonial jurisdiction of the ecclesiastical courts to the established civil courts and permitted divorce.  Similar legislation was enacted in all the Australian colonies between 1858 (SA) and 1873 (NSW).  State matrimonial causes legislation continued to operate after federation and effectively until 1 February 1961. Marriages celebrated in Australia before 1 September 1963 were also subject to compliance to State legislation. Commonwealth and State Powers in Family Law: 1. Commonwealth Powers: The Australian Constitution Section 51 provides that: “ The Parliament shall... have power to make laws for the peace, order, and good government of the Commonwealth with respect to: … (xxi) Marriage; (xxii) Divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants. 

The architects of the Australian constitution, by their insertion of these powers, clearly desired the enactment of uniform marriage and divorce laws within Australia.

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During the Constitutional Convention debates of the 1890's, it was argued that these federal powers were necessary to avoid the experience of the United States Constitution which left these powers to the individual states. After nearly 60 years, the Matrimonial Causes Act 1959 (Cth) was enacted and commenced operation on 1 February 1961 and later the Marriage Age 1961 (Cth) commenced operation of 1 September 1963. The States continued to administer family law matters until the establishment of the Family Court in 1976. It is worth noting that these new Acts were subject of several unsuccessful constitutional challenges: Attorney General (VIC) v Commonwealth (1962) HCA and Lansell v Lansell (1964) HCA. Following the election of the Whitlam government in 1972, a Family Law Bill was developed and subsequently passed by a conscience vote of the federal Parliament in May 1975. The title of the Bill was chosen because of the wider range of remedies it was proposed to include, and to be more meaningful to the general public, which it so affected. Apart from the abolition of fault and the establishment of a single ground for divorce, the most dramatic change proposed by the Bill was the establishment of a separate national Family Court of Australia. The Matrimonial Causes Act was primarily a 'divorce' law where any ancillary proceedings to resolve parenting or financial disputes were secondary to the divorce proceedings. The original FLA, on the other hand, went much further and allowed separate proceedings for all forms of ancillary relief, regardless of divorce proceedings. In other words, the constitutional validity of the Family Law Act was based upon an application of the marriage power in addition to the divorce power. The High Court considered the constitutional validity of the Family Law Act in Russell v Russell; Farrelly & Farrelly (1976) (HCA). The HCA agreed that the Commonwealth had the power to legislate in respect of the mutual rights, duties and powers between spouses and children of their marriage. A minority of the HCA (Barwick CJ and Gibbs J) were of the opinion that the marriage power is limited by s 51 (xxii) and they held that s 51 (xxi) does not confer any power to create a separate jurisdiction. The Majority (per Stephen, Mason, Jacobs JJ) disagreed. Nevertheless, in arriving at their conclusion, the majority did not uphold the validity of the provisions of the Family Law Act as a valid exercise of s 51 (xxi). In other words, some powers in the Family Law Act could only be exercised in accordance with s 51 (xxii). This resulted in the Fraser Government amending the Family Law Act in 1976 to provide that:

1. Proceedings for maintenance, custody, property and injunctions had generally to be between “the parties to a marriage” (and this was the revised definition of “matrimonial cause”). 2. “Children of the marriage” had to be the biological or adopted children of both the spouses concerned. 3. All property proceedings had to be in relations to concurrent, pending or completed proceedings for dissolution of marriage or one of the other forms of principle relief available under the Family Law Act. 

The election of the Hawke Government in 1983 resulted in further changes to the Family Law Act. The main thrust of the amendment was, ironically, to extend the operation of the FLA to what it was originally intended to cover: These amendments included:

1. A widening of the classes of person who could be parties to proceedings under the FLA; 2. A widening of the category of children to include “ordinary members of the household”; and 3. Inter-spousal property proceedings at any time after the marriage. 

The changes with widening the category of children were struck down by a series of cases between 1984-1986: See In the Marriage of Cormick; Salmon Respondent (1984) (HCA), R v Cook; Ex Parte C (1985) (HCA); Re F; Ex Parte F (1986) (HCA). Basically, the HCA held that the marriage power cannot cover a child that is not a “child of the marriage”. In other words, a child of a marriage is either biological or adopted child of both the husband and the wife. This problem was subsequently solved by the referral by the States of their powers over children during 1986-1990. This resulted in substantial changes being introduced in 1988. The FLA has been further amended over the last two decades including the enactment of the Family Law Reform Act 1995 (Cth) (new and revised Pt VII), the Family Law Amendment Act 2000 (Cth) (addition of Pt VII Div 13 A and Pt VIII A), the Family Law Legislation Amendment (Superannuation) Act 2001 (Cth) (addition of Pt VIIIB) and the Family Law Amendment Act 2003 (Cth) (addition of Pt VIIIAA).

2. State and Territory Power:  The State and Territories retain the power over the following family law areas: 1. Adoption (although the federal government now has substantial control over inter-country adoption); 2. Artificial conception and surrogacy; 3. Care and protection of Children; 4. Family violence (and apprehended violence orders); 5. Property and financial disputes between non-married couples 6. Testamentary dispositions and family provisions; and 7. Registration of births, deaths and marriages. State referral of powers over Children:  Pursuant to s 51 (xxxvii) of the Australian Constitution, all states (expect WA) “referred” their powers over children not covered by federal legislation between 1986-1990. The States specifically excluded the care and protection of States Welfare authorities. Previous attempts for the FLA to overrule the States care and protection (child welfare) jurisdiction were held to be unconstitutional: see Lambert; Ex Parte Plummer (1980) (HCA). The FLA now stipulates that the Family Court may not make an order in respect of a child under State care unless the consent of the relevant child welfare is obtained. See FLA s 69ZK (1).  The referral of powers by the States allowed the FLA to be extended to children from outside marriages. In other words, the Family Court could determine all custody, access and child maintenance disputes. In addition, it allowed the Commonwealth to establish the comprehensive child support scheme. Inherent, Associated and Accrued Jurisdiction:  Unlike a State Supreme Court, the Family Court has not inherent jurisdiction. Nevertheless, the HCA has held that the Family Court has such inherent powers as will enable it to exercise its statutory functions with justice and efficiency: See Taylor v Taylor (1979) (HCA). In addition, it is worth noting that s 33 of the FLA allows the court to exercise jurisdiction in respect of matters not otherwise within the expressed jurisdiction but which are associated with the matters where the court has express jurisdiction. The jurisdiction is, however, only conferred “to the extent that the Constitutional permits” : See Re Ross Jones;

Ex Parte Beaumont (1979) (HCA). 

It also appears that the Family Court has accrued jurisdiction over non-severable matters under States law which form part of the issue which is being determined within its jurisdiction. This results from the proposition that the Australian Constitution empowers the Federal Parliament to give authority to decide the whole of a single justiciable controversy of which the federal issues forms an integral part: See Philip Moris Inc v Adam P Brown Male Fashions Pty Ltd (1981) (HCA). The Family Court has has discretion whether or not it should exercise its non-exclusive accrued jurisdiction in any particular case. The existence of this discretion makes a distinction between one or both parties and a third party. The High Court expressed some support for the use of accrued jurisdiction by the Family Court in the decision of Ex Wakim, Ex Parte Mc Nally (1999) (HCA) (Per McHugh, Gummow, Hayne, Callinan). Despite differing Family Court judgements on the use of accrued jurisdiction over the years, the Full Court has now finally determined that it may exercise accrued jurisdiction: see Warby and Warby (2001) (FCA)(per Nicholson CJ, Finn, and Strickland JJ).

Cross Vesting Legislation:  Cross vesting provides for certain courts to exercise the jurisdiction of other other courts. In other words, federal courts are vested with State jurisdiction (in addition to other federal court jurisdiction) and State Courts with federal jurisdiction (in addition to other state and territory jurisdiction) so that no action in a particular court will fail through lack of jurisdiction.  Moreover, cross vesting means that no court will have to determine the boundaries between State and Federal and Territory jurisdiction. Cross vesting was obviously a response to the uncertainties that often arose as to the jurisdictional limits of federal courts, including the Family Court and the consequent inconvenience and expense suffered by the parties.  Nevertheless, the mutual cross-vesting legislation also ensures that the federal and state courts will keep to their “proper” jurisdictional fields. To achieve this, the mutual cross vesting legislation makes comprehensive provisions for transfer between courts to ensure that proceedings begun in the appropriate court, or related proceedings commenced in separate courts, are transferred to the appropriate court.  Consequently, under the mutual cross-vesting legislation, any proceeding which involves a single or primary matter falling within the ordinary jurisdiction of one court should not normally be determined in another court simply because one or even both parties to the parties desire it. 

In Chapman and Jansen (1990) (FCA) the full court (per Fogarty and Olney JJ; Nicholson CJ dissenting) held that the property dispute between a de facto couple should be transferred to the Supreme Court because the parties had no other dispute before the court (they had settled their parenting dispute shortly before the matter came before the court). Following this decision, a Family Court Practise Discretion was issued directing that applications which fall outside the jurisdiction of the FLA should not be filed in the Family Court (under the mutual cross-vesting legislation) unless there is a related proceeding within the court's jurisdiction.

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From 1988 until 1999 the cross vesting legislation greatly assisted the Family Court in dealing with matters raised by the breakdown of a non-married relationship. In Re Wakim; Ex Parte Mc Nally (1999) (HCA) a majority of the High Court decided that Ch III of the Australian constitution prevents the States from vesting jurisdiction in federal court; per

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Gleeson CJ, Gaudron, McHugh,Gummow, Hayne and Callinan JJ; Kirby J dissenting. Consequently, the Family Court is unable to deal with state-related matters raised by the breakdown of a non-married relationship. The remedial legislation passes by the States following the Re Wakim decision (known as the Federal Courts (State Jurisdiction) Act 1999, that designated the “ineffective' cross vesting judgements made by federal courts such as the Family Court as relevant State “judgements”, was subsequently held by the High Court to be effective: see Re Macks; Ex Parte Saint (2000) (HCA).

Family Law Act 1975: Family Court of Australia:  The Family Court is a superior court of record.  While it is not part of the Federal Court of Australia, its judges have the same status as Federal or Supreme Court Judges. One judge hears proceedings at first instance. Appeals lie to the Full Court of the Family Court which comprises of three judges. (sometimes five).  Appeals thereafter lie to the High Court with special leave: FLA s 95  It is worth noting that the FLA always anticipated that the States might like to set up their own State Family Courts to house all family law matters, regardless of marriage: FLA s41 (only WA has done so). Federal Magistrates Court:  The Federal Magistrates Court (FMC) is a separate court of record established under Ch III of the Australian Constitution  The FMC was established in part to handle a range of less complicated disputes that are heard in the Family Court and is intended to provide a faster and cost-effective option for litigants and to ease the workload of the superior Federal Court judges.  The jurisdiction of the FMC is essentially concurrent with that of the Family Court, although certain limits are imposed (for example, it cannot order a degree of nullity of marriage).  Where there are more complex matters filed in the FMC, they can be transferred from the Family Court to the FMC.  Proceedings cannot be instituted in one court if there is an associated matter pending before the other court.  Since 2003, all uncontested divorce applicants are head in the FMC. Appeals lie to the Full Court unless the CJ considers that it is appropriate that the appeal be heard by a single judge. Judicial Registrars and registrars:  Registrars, like Registrars in other courts, deal with procedural matters and consent orders.  Judicial Registrars, introduced in 1988 by s 26A of the FLA, exercise some delegated judicial functions in contested matters, such as defended divorce proceedings and child support departure applicants. A judge, by way of a hearing de novo, may review any decision of a judicial registrars: FLR. In the case of Harris v Caladine (1991) (HCA) the HCA upheld the constitutional validity of the relevant sections and rules dealing with judicial delegation and this was re affirmed in Harrington v Lowe (1996) (HCA).  These provisions did not contravene Ch III (and in particular ss 71 and 77) of the Australian Constitution because the FLA and FLR make provisions for judicial review and for the rules to be dispensed with if necessary. In other words, as real power still rests with judges, Ch III was not offended by the delegation of judicial power. Registrars have been delegated a number of powers and in particular and order a decree of dissolution of marriage (in undefended divorce proceedings).

Courts of Summary Jurisdiction:  Courts of summary jurisdiction (local/magistrates court) have a crucial role in the administration of the FLA, particularly in outer metropolitan and country areas: see s39 (2) and (6). There are some limits, though. These courts can only determine the ancillary relief (not principle relief) and s 46 of the FLA limits ancillary relief in property matters less than $20,000 (in the absence of the consent of the parties).  Moreover, while s 69J of the FLA gives a magistrate power to determine Pt VII children's matters, s 69 N (2) requires both parties to consent to the matter being determined by a magistrate. Principle to be applied by the Court:  In exercising its jurisdiction under the FLA, the Family Court must have regard to several factors: FLA s 43. These factors are: 1. The need to preserve and protect the institution of marriage as a union of a man and a woman to the exclusion of all others voluntarily entered into for life ( FLA s 43 (a) ); 2. The need to give the widest possible protection and assistance to the family as the natural and fundamental group unit in our society, particularly while it is responsible for the care and education of dependant children (FLA s 43 (b) ); 3. The need to protect the rights of the children and to promote their welfare(FLA s 43 (c) ); 4. The need to ensure safety from family violence (FLA s 43 (ca) ); and 5. The means available for assisting parties to a marriage to consider reconciliation or the improvement of their relationship to each other and their children: FLA s 43 (d). Matrimonial Cause:  Given constitutional limitations, a 'matrimonial cause' is defined in the FLA: s 4 (1). It includes applications for: 1. Divorce and nullity proceedings; 2. Declarations as to the validity of a marriage, divorce or annulment; 3. Spousal Maintenance; 4. Property; 5. Approval of a “maintenance agreement” (see separate definition); 6. Injunctive relief; 7. Enforcement of a maintenance agreement; 8. Proceedings in respect of a “financial agreement” (see separate definition); and 9. “any other proceedings' including general enforcement. Children are separately dealt with in Pt VII. Jurisdiction in other matters (matrimonial causes):  The relevant provisions is s 39 of the FLA.  Proceedings for divorce under s 39 (3) of the FLA must involve either party being (at the date of the filing of the application): 1. An Australian Citizen; or 2. An Australian “ordinary resident”; or 3. Domiciled in Australia (note Domicile Act 1982 Cth)  For all other proceedings s 39 (4) of the FLA requires that either party be (at the date of the filing):  An Australian citizen; or  An Australian “ordinary resident”; or  Present in Australia.

Jurisdiction in Children's Matters:  Part VII has various sections which detail who applicants might be in children's matters.  Not Surprisingly, this includes the parents, the child or any person concerned with the “care, welfare and development” of the child. Proceedings may proceed providing the child is Australian or is present in Australia: FLA s 69 E.  The FLA clearly covers “children of a marriage”: see s 60F.  The State referral power of powers over children has allowed the extension of Pt VII jurisdiction to ex-nuptial children (expect WA): FLA ss 69 ZE-ZK. As stated previously, State and Territory care and protection (child welfare) laws are not affected: FLA s 69 ZK.

Topic Two: Marriage and De Facto Relationships:<...