Family Law (Torts)

Define Tort Law

To remedy the loss for the plaintiff whilst balancing equitable representation for the defendant (each citizen takes responsibility for their action).

Define Duty of Care

Legal obligation which is imposed on a legal person which requires adherence to a standard of reasonable care while performing any acts that could foreseeably harm others.

What elements are required to establish defamation?

Publication

Identification

Damage

Falsity

Define the element of Publication (in terms of defamation)

Publication is the requirement for a third party to have been exposed to the imputation.

Define the element of Identification (in terms of defamation)

Identification is the requirement for the plaintiff to be reasonably referred to within the imputation.

Define the element of Damage (in terms of defamation)

Damage is the requirement for reasonable harm to a persons reputation due to the imputation.

Define the element of Falsity (in terms of defamation)

Falsity is the requirement for the statements or implications in the material to be false. If they are true then the plaintiff can not be held liable.

Explain why the Federal Court and the Family Court merged?

They merged in 2021 for the purpose of improving efficiency, accessibility, and consistency of Australia’s family law system.

What is a BFA?

Binding Financial Agreement

What are the benefits of BFA’s?

Providing certainty and control

Avoids court disputes

Protects assets and wealth

Flexible and tailored to parties

Enforceable if valid

What are the limitations of BFA’s?

Strict legal requirements

Risk of unfairness or duress

Can become outdated

Limits court protection

Risk of being set aside by courts

Define Family Law

All laws which deal with

What is a nuclear family?

The traditional family unit in Australia. Consisting of a mother, a father, and one or more biological children (physically born to their parents).

What are de facto couples?

Can include,

Couples without children, or children born through surrogacy arrangements or fertility treatments.

When will Family Law change?

When new family structures become social phenomenon and the law must adapt to recognize the changes.

What are the two main pieces of legislation for Family Law?

Family Law Act 1975 (Cth)

The Marriage Act 1961 (Cth)

*Also governed by common law also

Define Marriage

The union of two people, to the exclusion of all others, voluntarily entered into for life.

What are the requirements for Marriage?

Marriageable age

Prohibited degrees of relationship

Notice of marriage

Valid marriage ceremony

Marriage certificate

Two witnesses over the age of 18 must be present and sign the marriage certificate

Define Marriageable age?

Both parties must be over 18 years of age, but on rare occasions consent may be given by the parents and the court to marry between the ages of 16-18.

What is one of the prohibited relationships? (and define)

Couples must be within the degrees of consanguinity.

(ergo not blood related)

What are some void marriages?

One party is already married - polygamy

The parties are related to one another in a prohibited degree

One party did not consent to the marriage

One party is not of marriageable age

What are the requirements for divorce?

Australian citizen, domiciled or resident -1 year or more

Separated for 12 months or more

Married for less than 2 years

Spouse location

What are the grounds for divorce?

No fault divorce