Historical background and constitutional factors

1. Historical background and constitutional factors

2. What is a family? • Defining a family • Definitions of family changes over time • Illegitimacy • Historically this was important as illegitimate children did not have the same legal rights as legitimate children • Common law distinguished between legitimate and illegitimate children – illegitimate children no one was legally responsible for them. They couldn’t inherit. These were overcome in the 1970s when various jurisdictions passed status of children legislation. • Status of Children legislation • See Status of Children Act 1996 (NSW), esp. s14 • Same sex marriage • Some are concerned that this will threaten the institution of marriage • Re Kevin brings up issues of defining a family and defining marriage into focus • Same sex families • Significant law reform

3. Historical introduction • Our Constitution has affected the development of family law • No general family law power • Initially the states dealt with family law • Commonwealth didn’t introduce federal legislation until the Matrimonial Causes Acct 1959

4. UN International Covenant on Civil and Political Rights • adopted by the Human Rights and Equal Opportunities Commission 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 woman of marriageable age to marry and to found a family shall be recognised. • No marriage shall be entered into without the free and full consent of the intending spouses. • States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children. •  Article 24: • Every child shall have, without any discrimination as to race, colour, sex, language, national or social origin, property or birth, the right to such measures of protection as are required by his [sic] status as a minor, on the part of his family, society and the State. • Every child shall be registered immediately after birth and shall have a name. • Every child has the right to acquire a nationality.

5. Federal and state powers in family law • federal powers: ss 51 (xxi), 51 (xxii) Australian Constitution • Section 51 the Australian Constitution: • … 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; • Marriage power, divorce and matrimonial causes • A-G (Vic) v The Commonwealth (1962) 107 CLR 529 – scope of marriage power • Lansell v Lansell (1964) 110 CLR 353 – powers can be interpreted to reflect social change • Russell v Russell; Farrelly v Farrelly (1976) 134 CLR 495 - can rely on more than one head of power • state and territory powers • Adoption • Surrogacy • Child protection

6. state referral of powers over children: Commonwealth Powers (Family Law – Children) Act1986 (NSW) • referral of powers over de facto financial matters: Commonwealth Powers (De Facto Relationships) Act 2003 (NSW) • All states except WA have referred their powers • P v P (1994) 181 CLR 583 (PP)

7. Family Court(s) of Australia • Family Court of Australia (FCA) Part IV • Federal Magistrates Court (FMC) Federal Magistrates Act1999 (Cth) • Less formal, quicker, cheaper • State Courts (Family Court of WA only) • Local Courts (courts of summary jurisdiction) • refer to ss 39(2), 39(6) FLA . There are some limits though: • the Local Court can only determine ancillary relief (not principal relief) ss 39(6), 44A; • s 46 limits ancillary relief in property matters less than $20,000; and • s 69N(2) requires both parties to consent to a children’s matter being determined by a Local Court.

8. Principle to be applied by the Court s43 The Family Court shall, in the exercise of its jurisdiction under this Act....have regard to: • (a) 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; • (b) 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; • (c) the need to protect the rights of children and to promote their welfare; • (ca) [since June 1996] the need to ensure safety 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 their children.

9. Matrimonial cause: s 4(1) • In short it includes applications for: • divorce and nullity • declarations re marriage • spousal maintenance • property settlement • approval of maintenance’ agreements • injunctions • enforcement of maintenance agreement • enforcement of overseas decrees • ‘any other proceedings’ including enforcement • financial agreement proceedings • de facto financial cause : s 4(1) similar

10. The hierarchy of judges is as follows: • Chief Judge • Deputy Chief Judge • Judge Administrators and Judges of the Appeal Division • Senior Judges • Judges • Division 3 of Part IV deals with judges. • The officers of the Court are as follows: • Chief Executive Officer (general administrator) • Registrars (principal administrator for each registry) • Deputy Registrars (either 'judicial registrars' or 'registrars' - their powers differ) • Marshal (principal enforcement officer) • Deputy Marshals • Director of Court Counselling (each registry) • Court Counsellors (psychologists) • Court Officers and Judges Associates

11.  Registrars and Judicial Registrars • refer ss 26A, 37A(and Family Law Rules) • Registrars, like Registrars in other courts, deal with procedural matters and consent orders. Judicial Registrars, introduced in 1988 by s 26A, have a more formal judicial function hearing some contested matters, such as defended divorce proceedings and child support departure applications. Any decision of a judicial registrar may be reviewed by a judge by way of a hearing de novo. • Harris v Caladine [1991] FLC 92-217

12. Jurisdiction in Other Matters (Matrimonial Causes) • Refer to Part V of the FLA • Proceedings for divorce under s 39(3) must involve a party being (at the date of filing): • an Australian citizen • an Australian 'ordinarily resident' • or domiciled in Australia - note Domicile Act 1982 (Cth). • For all other proceedings s 39(4) requires that either party be (at the date of filing): • an Australian citizen • an Australian 'ordinarily resident' • or merely present in Australia.

13. The main parts of the FLA include: • II: non-court based family services – family counselling, family dispute resolution and arbitration • IIIA: obligations to inform people about non-court based family services • IIIB: Court’s powers in relation to court and non-court based family services • IV: the court • V: jurisdiction (not children) • VI: divorce/nullity • VII: children (and jurisdiction) • VIII: property orders and spousal maintenance • VIIIA: financial agreements • VIIIB: superannuation • VIIIAA: orders against 3rd parties • XIIIAA: international agreements • XIIIA: sanctions for breach • XIIIB: contempt of court • XIV: injunctions

14. jurisdiction in matrimonial causes: Part V, • s 31- original jurisdiction • s33A associated proceedings • s38 practice and procedure • S39 matrimonial causes • s39A de facto matters • principle to be applied by the courts: s 43 • jurisdiction in children's matters: Part VII, s69E, 69H • Jurisdiction cannot be created by consent

15. cross-vesting and accrued jurisdiction • Jurisdiction of Courts (Cross-Vesting) Act1987 (Cth) (NSW) and Federal Courts (State Jurisdiction) Act 1999 (NSW) • Re Wakim; Ex parte McNally (1999) 198 CLR 511 (PP) – High Court held cross-vesting scheme unconstitutional • Warby and Warby [2002] FLC 93-091 (PP) – accrued jurisdiction • Valceski (2007) FLC 93-312 – accrued jurisdiction

16. Family Law Act 1975 (Cth) (FLA) assent 12 June 1975, commences 5 January 1976 • Amendments since:1976 • that proceedings for maintenance, custody, property and injunctions had generally to be between ‘the parties to a marriage’ • that ‘children’ had to be the natural or adopted children of both the spouses concerned • that all property proceedings had to be in relation to concurrent, pending or completed proceedings for dissolution of marriage or one of the other forms of principal relief available under the Act • 1983 -widening of the classes of person who can commence proceedings • - children to include ‘ordinary members of the household’ • - inter-spousal property proceedings at any time • 1987 - New Part VII – children - Revised Part VIII - property • 1996 -New Part VII – children -Primary Dispute Resolution

17. 2000 - New Part VII Div 13A enforcement • - New Part VIIIA binding financial agreements • 2001New Part VIIIB: Superannuation splitting • 2003 - Non-registration of parenting plans- New Part VIIIAA: Orders against third parties • 2005 - Bankruptcy • 2006 - ‘Shared Parenting’ • 2008 • Three major law reforms introduced by the Rudd government to remove discrimination against same-sex couples and children of same-sex relationships • Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) received Royal Assent on 21 November 2008 • Same-Sex Relationships (Equal Treatment in Commonwealth Laws – General Reform) Act 2008 (Cth) received Royal Assent on 9 December 2008 • Same-Sex Relationships (Equal Treatment in Commonwealth Laws – Superannuation) Act 2008 (Cth) received Royal Assent on 9 December 2008

18. Time limits • must file an application for property or maintenance within 12 months of divorce order becoming final: s44(3) • Conditions for extension of time: s44(4) • Appellate jurisdiction • must lodge within 28 days • Jurisdiction in divorce proceedings • s39(3) connection to Australia • Either party Australian citizen; or • Domiciled in Australia; or • Ordinarily resident in Australia past 12 months • Welfare jurisdiction • Supervisory jurisdiction • s67Z FLA