Family Law

Article 3 (1) of CRoC

 requires that in all actions concerning children, "the best interests of the child" must be a primary consideration

Article 7 of CRoC

 gives every child the right, as far as possible, to know and be cared for by their parents, and to a name and nationality from birth.

Article 9 (3) of CRoC

gives a child separated from one or both parents the right to maintain personal relations and direct contact with both parents on a regular basis, unless contrary to the child's best interests

Article 18 of CRoC

establishes that both parents have common responsibility for raising the child, with the child's best interests as their basic concern

Article 19 of CRoC

 requires states to protect children from all forms of physical or mental violence, injury, abuse or neglect.

Family Law Act 1975 (Cth)

the core federal statute; its treatment of family violence has been substantially strengthened over successive amendments

Family Law Act 1975 (Cth) s48

sets out the single ground for divorce in Australia: that the marriage has "broken down irretrievably"

s50 of the Family Law Act (Cth)

The ‘kiss and make up’ clause –  couples who are separated may try living together again for a period of up to three months, and if this does not work out – and the marriage remains irretrievable broken down – the 12 month separation period does not restart. This clause gives an opportunity to attempt reconciliation without the pressure of restarting the 12 month separation period.  

Family Law Reform Act 1995 (Cth)

the key piece of Australian legislation that translated CRC principles into domestic law — most importantly, it replaced the older "custody and access" language with "parental responsibility" language as well as introducing "parental responsibility", began the process of requiring family violence to be considered in parenting matters.

Shared Parental Responsibility Act 2006 (Cth)

introduced the presumption of equal shared parental responsibility, while also requiring courts to consider family violence as an exception to that presumption

Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth)

significantly broadened the legal definition of family violence to include a wider range of controlling and coercive behaviours (not just physical violence), and gave family violence greater priority when courts assess a child's best interests

Family Law Amendment (Family Violence and Other Measures) Act 2018 (Cth)

banned direct cross-examination between a party and a victim where there is an allegation or history of severe family violence. Instead, the court mandated that the questioning must be conducted by a legal practitioner

Family Law Amendment Act 2023 (Cth)

made major structural changes to parenting law — most significantly, repealing the presumption of equal shared parental responsibility entirely (replacing it with "joint decision-making about major long-term issues"), and streamlining the factors courts consider for a child's best interests into a shorter, clearer list

Crimes (Domestic Violence) Amendment Act 1982 (NSW)

it extended the domestic violence offence framework to include common assault, and introduced Apprehended Domestic Violence Orders (ADVOs) for the first time in NSW, initially limited to a 6-month duration.

 Education Act 1990 (NSW)

makes school attendance compulsory for children between specific ages

Children (Protection and Parental Responsibility) Act 1997 (NSW)

gives NSW courts powers to make parenting orders regarding children found to be at risk and can require parents to attend counselling or accept certain responsibilities

Children and Young Persons (Care and Protection) Act 1998 (NSW)

the core NSW legislation for state intervention where a child is at risk of significant harm, including mandatory reporting obligations for certain professionals, and the legal basis for removing a child into care.

Crimes (Domestic and Personal Violence) Act 2007 (NSW)

the core NSW legislation governing Apprehended Violence Orders. It consolidated and modernised earlier, more piecemeal reforms

Crimes (Domestic and Personal Violence) Amendment Act 2013 (NSW)

expanded the state’s legal definition of a "domestic relationship." It ensured that people in modern de facto relationships, extended family structures, and former partners were fully covered under state domestic violence protections

Crimes (Domestic and Personal Violence) Amendment [Information Sharing] Act 2014 (NSW)

Introduced tougher state penalties for breaching ADVOs and allowed NSW police and health agencies to seamlessly share information about domestic violence threats.

Crimes (Domestic and Personal Violence) Amendment (National Domestic Violence Order Scheme) Act 2016 (NSW)

ensured that any ADVO issued in NSW became automatically enforceable nationwide

Crimes Legislation Amendment (Coercive Control) Act 2022 (NSW)

created a new standalone offence of "abusive behaviour towards current or former intimate partners" under a new s54D of the Crimes Act 1900 — NSW's first criminal offence specifically targeting coercive control as a pattern of behaviour, rather than only individual violent incidents.

NSW DVDRT - corcive control

in 97% of intimate partner domestic violence homicide cases it reviewed for 2019–2021, the victim had experienced coercive and controlling behaviour beforehand

NSW DVDRT - male victims

73% of men killed by a femal partner were the primary abusers in the relationship

NSW DVDRT - victims killed by former partners

65% of femal intimate partner homocides were committed within 3 months of seperation

NSW DVDRT - Indigenous & migrant representation

First Nations people - 3.4% of NSW pop., 19% of DV murders
Migrants/refugees - 27% of DVD victims are migrant backgrounds, 12% were on temporary visas

Family Dispute Resolution (FDR) under the Family Law Act 1975 (Cth)

separating parents are generally required to make a genuine effort to resolve parenting disputes through FDR before applying to court, unless an exception applies. FDR allows parents to negotiate and reach their own agreement with the assistance of an independent practitioner, encouraging cooperation and reducing reliance on court proceedings. Family Relationship Centres provide government-funded FDR and related support. 

Re Marion ("Marion's Case") (1992)

a landmark High Court case concerning whether Marion's parents could consent to a non-therapeutic sterilisation procedure on her behalf. The High Court held that for major, non-therapeutic medical procedures with significant, irreversible consequences, parental consent alone is not enough — Family Court authorisation is also required, to ensure an independent check on decisions with permanent effects on a child who cannot consent for themselves.

Gillick v West Norfolk and Wisbech Area Health Authority and Anor (1985) (UK, persuasive in Australia)

established what's now called "Gillick competence" — a minor can validly consent to their own medical treatment (without needing parental consent) if they demonstrate sufficient maturity and understanding to fully grasp what's involved in the treatment.

Kennon v Kennon [1997]

the first Australian case to establish that domestic violence during a marriage could be legally relevant to how property is divided on separation. This established what's now commonly called a "Kennon claim" or "Kennon argument", which requires the person to prove three elements: a course of violent conduct by the other party; that the conduct had a "discernible" (clear, identifiable) impact; and that it made their own contributions to the relationship significantly more difficult.

R v Monteleone (2026)

encapsulates limitations of ADVOs, as despite the offender being arrested and charged for breaking the order numerous times, he was still released on bail, resulting in an almost lethal stabbing soon after.

Coughlan v Coughlan (2005)

the Full Court of the Family Court decided superannuation should be treated separately to other property. Usually it is split into two separate funds. 

W v G (1994)

W and G were in a female same-­‐sex relationship. W gave birth to two children, and both W and G had joint parental responsibilities. G left the relationship, claimed to have no financial responsibility to the children, and W could not use the Child Support Agency, as it did not recognize G. The NSW Supreme Court ordered G to pay $150000

JEAN MAJDALAWI [1996]

This case was used by the media to highlight the plight of women who have violent ex-­‐partners. Jean Majdalawi, after an 18-‐year violent marriage in which she had been abused, had spent two years on the run from her husband. Despite a restraining order being taken out against him, Hoss Majdalawi approached Jean outside Parramatta Family Court and shot her five times. public outrage lead to the NSW Government to implement reforms that improved security for women who take out court orders against violent individuals.

Rosa v Rosa (2009)

a Family Court decision determined that a mother had to remain in a Queensland caravan park, depressed and living on welfare payments, after she moved there from Sydney for her husband’s mining career and they separated.

The High Court said the decision was wrong and ordered a fresh hearing. Judges will have to ask whether an arrangement is “practicable” before they can make orders for equal time in the future.

In the Marriage of C and C (1983)

The judge refused to make an access order with the children’s father against their wishes. Instead, he ordered counselling

Nawaqaliva and Marshall (2006)

the judge found that the presumption of shared parental responsibility did not apply as it was not in the best interests of the children. This was based on relationship of each parent to the children, their ability to provide for their physical and emotional needs

Lewis & Wackett [2010]

Demonstrates that the court will not make parenting orders of shared care where the risk of physical and emotional harm overrides any presumption of equal shared parenting