Family Law Flashcards

Responses to Problems in Family Relationships

Divorce

• Students learn about divorce and the legal processes involved in dealing with problems in family relationships.
• Legal dissolution (ending) of a marriage.
• Before 1974, married couples who wanted to divorce had to apply under the Matrimonial Causes Act 1959 (Cth).
• Fault-based evidence was required, with 14 grounds for divorce.

Matrimonial Causes Act 1959 (Cth) - Grounds for Divorce:

• Desertion
• Adultery
• Five years separation
• Cruelty
• Drug addiction or drunkenness
• Refusal to consummate the marriage
• Frequent criminal convictions
• Imprisonment
• Insanity
• Failure to restore conjugal rights
• Nullity
• Serious offence against the partner
• Failure to pay maintenance
• Presumption of death

The Family Law Act 1975 (Cth):

• Established the concept of ‘no-fault divorce’ (s 48). The only ground for divorce is the irretrievable breakdown of a marriage.
• Established the Family Court of Australia, which hears all matters related to marriage and divorce.
• To prove the relationship has irretrievably broken down, couples must have lived apart for 12 months.
• The law will not force an individual to stay in a relationship they do not want to continue.

Facts about Divorce:

• Divorce was rare in Australia before World War II, with only 300-400 divorces in total across the country.
• A minor peak in divorces occurred in 1947, reflecting the instability of hastily-entered wartime marriages and the damaging effect of war on marriage.
• A major peak in the divorce rate occurred in 1975 when the Family Law Act was introduced, formalizing many long-term separations.
• The rate of divorce has increased steadily since the 1980s.
• The number of couples cohabiting rather than getting married continues to increase.
• Cohabitation is becoming more unstable, with less than 10% of cohabitations continuing for more than 10 years. (Source: ‘Family Statistics and Trends: Trends in Couple Dissolution’ by R Weston and L Qu in Family Relationships Quarterly 2, Australian Institute of Family Studies)

Crude Divorce Rate:

• Number of divorces per 1,000 of the estimated resident population at June for each reference year.
• Sources: ABS (various years) Marriages and Divorces Australia (Catalogue No. 3310.0); ABS (various years) Divorces Australia (Catalogue No. 3307.0, 3307.0.55.001)

The Process of Divorce:

• The couple needs to prove they have lived apart for 12 months.
• Couples can still share the house but must:
  • Sleep separately
  • Not socialize with friends together
  • Not share meals
  • No longer share finances
• One period of reconciliation for the first 3 months (‘Kiss and make up’ clause).
• If unsuccessful in reviving the marriage, the 12-month period resumes.
• If the couple has been married for less than 2 years, marriage counselling is compulsory.
• The court can order marriage counselling.
• After 12 months of separation, an application for divorce is made through a decree nisi.
• Once all matters are resolved (care, welfare, and development of children), a decree absolute is declared, signifying the end of the marriage.
• All matters concerning children must be resolved before a decree absolute is finalized.

Decree Nisi vs. Decree Absolute:

• Decree nisi: A Family Court order that is made to signal the intended termination of a marriage.
• Decree absolute: A final decree of the dissolution of marriage.
• The simple difference between the two is that one stands as confirmation that the parties are entitled to a divorce and the other completes the divorce under the old system of divorce proceedings.

Considerations Accompanying the Dissolution of a Marriage:

• Are there children?
  • No
  • Yes
    • Children’s residence and contact (where the children will live and what arrangements will be made for contact with the non-residential parent).
    • Child Support (payment by the non-residential parent to the residential parent for care and maintenance).
• Property Division
  • (Possibly) spousal maintenance
  • Division of Property (based on financial and non-financial contributions and future needs).

Note:

• The Family Law Act 1975 (Cth) did not intend to encourage divorce. Rather, it intended to encourage parties to seek a friendly resolution to their problems, including the use of counselling services.
• Remember, the concept of Family Law focuses on conciliation and encouraging compliance rather than on the use of sanctions or coercion to enforce compliance.

Homework:

• Make a flowchart of the divorce process.

Legal Consequences of Separation

• Students learn about the legal consequences of separation including issues related to children and property and outline the legal processes involved in dealing with problems in family relationships.

Children:

• Parents are encouraged to make and voluntarily agree to their own arrangements in relation to the care and responsibility of their children, rather than asking the court to do so.

• If parents cannot agree to their own arrangements, the court will intervene.

• Any disputes concerning children must be decided in the best interests of the child.

• Note: This dot point will be elaborated on in the contemporary issues (changing nature of parental responsibility and care and protection of children).

• Parenting arrangements

• Allocation of parental responsibility

• Best interests of the child considerations

• Child maintenance

Parenting Arrangements:

• Separating parents are required to attend family dispute resolutions before they apply to the court for parenting orders.
• Agreements in this stage can be drafted into parenting plans or consent orders.
  • Parenting plan - a voluntary written agreement between parents about parenting arrangements for their child (Division 4 FLA); introduced by Family Law Reform Act 1995 (Cth).
  • Consent order - A formal agreement that parents apply to the court for approval.
• If parents cannot agree to a parenting plan, they may apply to the Family Courts for a parenting order (Division 5 FLA).
• Parenting order - A court order made by a judge when parents cannot agree on arrangements.

Parenting Plan vs Consent Orders vs Parenting Orders:

The Family Law Amendment Act 2000 (Cth):

• Introduced a three-tiered approach for enforcing parenting orders in Australia.
• This system was designed to deal with breaches of parenting orders in a way that reflects the seriousness of the breach and encourages compliance while considering the best interests of the child.
• The Three Tiers of Enforcement under the Family Law Amendment Act 2000 (Cth):
  1. Educative: Focuses on education and dispute resolution for minor breaches. Courts may order parenting programs or counselling to help parents understand their obligations.
  2. Remedial: Used for moderate breaches where a parent repeatedly ignores an order. Courts may impose make-up time, bonds, fines, or community service to encourage compliance.
  3. Punitive: Applies to serious and deliberate breaches of parenting orders. Courts can impose severe penalties, including significant fines, changes to custody arrangements, or imprisonment.

Allocation of Parental Responsibility:

• The court will allocate parental responsibility based on what is best for the child in each case when determining a parenting order.
• Courts can order joint or sole parental responsibility based on the child’s needs and each family's unique circumstances.
• FAMILY LAW ACT 1975-SECT 61DAA
  Effect of parenting order that provides for joint decision-making about major long-term issues
  (1) If a parenting order provides for joint decision-making by persons in relation to all or specified major
  long-term issues in relation to a child, then, except to the extent the order otherwise specifies, the order is taken
  to require each of the persons:
  (a) to consult each other person in relation to each such decision; and
  (b) to make a genuine effort to come to a joint decision.
  (2) To avoid doubt, this section does not require any other person to establish, before acting on a decision
  about the child communicated by one of those persons, that the decision has been made jointly.
  FAMILY LAW ACT 1975 - SECT 61DAB
  No need to consult on issues that are not major long-term issues
  (1) If a child is spending time with a person at a particular time under a parenting order, the order is taken
  not to require the person to consult a person who:
  (a) has parental responsibility for the child; or
  (b) shares parental responsibility for the child with another person;
  about decisions that are made in relation to the child during that time on issues that are not major long-term
  issues.
  Note:
  This will mean that the person with whom the child is spending time will usually not
  need to consult on decisions about such things as what the child eats or wears because these are
  usually not major long-term issues.

The Family Law Amendment Act 2023 (Cth):

• Introduced sweeping changes to how courts allocate parental responsibility.
• Previously, s 61DA of the Family Law Act 1975 stated that there was a presumption that it was in the best interests of the child for the parents to have equal shared parental responsibility (ESPR).
• This meant that parents were presumed to have equal responsibility for making major long-term decisions about their children, such as education, healthcare, and religious upbringing.
• The presumption would NOT apply if a parent had engaged in family violence.
• If ESPR was ordered, the court had to consider share care arrangements under s 65DAA (equal time or substantial time).

Allocation of Parental Responsibility:

• The amendment removed the presumption of equal shared parental responsibility as:
  • The presumption of ESPR caused confusion - many parents mistakenly believed it meant automatic equal time with the child.
  • It did not prioritize child safety - it sometimes forced co-parenting arrangements even in cases of family violence or high conflict.
  • The changes simplify the law and ensure that each case is decided individually, rather than applying a one-size-fits-all approach.
• Under the new amendment, the court will now consider each family's unique circumstances and determine what is in the best interests of the child.

Best Interests of the Child Considerations:

• Courts determine what is in the best interests of the child when making parenting decisions under the Family Law Act 1975 (Cth) by using six considerations under s 60CC:
  1. Safety and protection from harm
  2. The child’s views
  3. Developmental, psychological, emotional, and cultural needs of child
  4. Capacity of parents to provide for the child’s needs
  5. Benefit of having a relationship with both parents
  6. Any other relevant considerations
• Two further considerations specifically relate to ATSI children:
  1. The child’s right to enjoy their culture
  2. The impact of parenting arrangements on cultural identity
• These considerations ensure that ATSI children’s cultural identity is protected and that any parenting decisions support their right to stay connected to their heritage.

The Family Law Amendment Act 2023 (Cth):

• Simplified the best interests of the child considerations by reducing the number of factors courts must consider when making parenting decisions.
• Previously, s 60CC had a two-tier hierarchical structure of two primary and 13 additional considerations.
• The court had to consider a long list of factors which often made cases more complex and time-consuming.
• The amendment simplified this by introducing a single list of six key factors, and two further factors for ATSI children, that directly focus on the child’s needs.

Child Maintenance:

• Child maintenance is governed by the Child Support (Assessment) Act 1989 (Cth) and Child Support (Registration and Collection) Act 1988 (Cth).
• The Child Support Agency administers these Acts.
• It ensures that both parents contribute to the financial support of their child after separation or divorce.
• Both parents have a legal duty to financially support their child, regardless of whether they were married, in a de facto relationship, or never lived together.
• The parent with primary care is entitled to receive child support payments from the non-primary carer.

Calculating Child Maintenance:

• The Child Support Agency uses a formula-based system to calculate child maintenance that considers:
  • Each parent’s income
  • The number of children
  • The age of the children
  • The amount of time each parent spends with the child
  • Other dependent children
• Parents can manage child support payments through the CSA or through private agreements between parents.
• If a parent fails to pay child support, the CSA can take enforcement actions, including: deducting directly from salary, seizing tax refunds, restricting passports and taking legal action.

Themes and Challenges:

• The role of law reform in achieving just outcomes for family members and society.

Legislation Features:

Legislation Effectiveness and Ineffectiveness:

Property (Legal Consequences of Separation):

• Property includes homes, bank accounts, companies, shares, superannuation, household goods, etc.
• If separating couples agree to the allocation of property, they can apply to the Family Court for consent orders or enter into a financial agreement.
• A couple in dispute can have their matter heard in the Family Court.
• The court will usually order the disputing couple to attend a conference to agree on a fair and equitable outcome as to the allocation of property, however, if the mediation process is unsuccessful, the Family Court can make an order.
• No set formula for the distribution of property; the court aims to reach a fair and equitable outcome for both parties by taking into account their differing needs and contributions.
• Court will consider a number of factors under the Family Law Act 1975 (Cth) (ss 75 and 79).
• Family Law Amendment (De facto Financial Matters and other Measures) Act 2008 (Cth) allowed de facto couples to have the same provisions about property distribution as married couples (FLA ss 90SF and 90SM).
• These factors include:
  • Financial and non-financial contributions to the property
  • Earning capacity of each individual
  • Age of both parties
  • Who has the care and control of the children
  • Inheritance and acquisition of further assets

Superannuation:

• Superannuation is treated as property under the Family Law Act 1975 (Cth), but it differs from other types of property because it is held in a trust.
• The court takes into account the financial and non-financial contributions made by both parties to superannuation entitlements.
• Since 2002, separating couples have been able to claim superannuation that each spouse had accumulated during the marriage as part of the matrimonial property.
• In Coghlan & Coghlan (2005), the court held that “superannuation interests are another species of asset”.
• This case provides authority for the treatment of superannuation separately from other property in Family Law.
• This is known as the “two pools approach” and allows the direct and indirect contributions each party has made to the superannuation pool to be given proper consideration.
• The two pools approach also enables the distinct nature of superannuation interests to be taken into account.

Case - C and M [2006] FamCA 212:

• The parties (both aged 29) married in October 2002 after a lengthy engagement. However, after two months they separated. During their engagement the couple had bought land on which they intended to build their home. The land was purchased in the husband's name and he was responsible for paying the mortgage. The couple had been using the wife's credit cards and personal savings for day-to-day expenses and she was now deeply in debt. When the couple separated, the husband transferred the property to himself and his parents, thus preventing his wife from attempting to claim the property. During the period 2002-06 the husband continued to pay the mortgage and his parents provided him with substantial financial support in order to build a home on the land.
• The court in the first instance found that both parties had contributed equally to one another's debt. The husband was ordered to pay half his wife's debt but was awarded 92.5% of the assets. No adjustment under s 75(2) of the Family Law Act 1975 (Cth) had been made for the husband's higher income or greater earning capacity. On appeal, it was held that the method of calculation of the parties' assets and liabilities effectively left the wife with only 3.8% of the net assets. The court ordered that the wife's share of the 'asset' (the land and house) should reflect her financial contributions to the mortgage repayments (assessed at 20% of the total assets).
• However, taking into account the short period of time that the marriage – and hence also the financial contributions - had lasted, the ages of the parties, and the lack of any restrictions on the wife's earning capacity, the court held that there would be no adjustment for disparity of earning capacity.

Homework - C and M (2006) FamCA 212:

1. Assess whether a ‘just and equitable outcome’ for all parties was achieved in this case. Why or why not?
2. Describe the factors that are taken into account when deciding the allocation of property after a marriage or de facto relationship has broken down.

Dealing with Domestic Violence

• Students learn about dealing with domestic violence and evaluate the effectiveness of the law in protecting victims of domestic violence.

Domestic Violence:

• Any act, whether verbal or physical, of a violent or abusive nature that takes place within a domestic relationship.
• Causes range from psychological, social, and financial problems.
• The majority of victims are women and children, but men can also be victims.
• Domestic violence is recognized as a community problem.
• There have been legislative changes at a FEDERAL and STATE level in response to community pressure and specific instances of domestic violence.

Federal and State Laws Dealing with Domestic Violence:

Family Violence and the Family Law Act s 4AB Family Law Act 1975 (Cth):

• Defines family violence as “…threatening or other behaviour by a person that controls a member of the person’s family, or causes the family member to be fearful.”

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

• Redefined family violence and placed more weight on the safety of the child.
• Main changes include:
  • New definition of family violence
  • New definition of child abuse
  • Protection of a child must have top priority
  • Firmer rules about dealing with family violence at court

New Definition of Family Violence:

• The definition was changed to remove the requirement that a person ‘reasonably’ fear for their safety, and to include controlling or coercive behaviour.
• For clarity, sub-section 4AB(2) was introduced, which provides a list of the types of circumstances that may be family violence.

New Definition of Child Abuse:

• The definition was extended to include two new categories of behaviour (s 4(1)). The new definition provides that child abuse is:
  • assault;
  • if the children is used as a sexual object and there are unequal power relations between the child and the perpetrator;
  • action causing a child ‘serious psychological harm’ and expressly including subjection or exposure to family violence (new); and
  • serious neglect (new)

Protection of Child Must Have Top Priority:

• The 2011 amendment confirms that, if there is a conflict between two primary ‘best interests’ considerations, the ‘need to protect a child from harm’ should carry more weight than the ‘relationship with parents’ consideration.

Firmer Rules About Dealing with Family Violence at Court:

• The 2011 amendments require the court, in every child-related case, to expressly ask the parties about whether they have any ‘concerns’ about family violence or child abuse.
• If a Family Court is advised of child abuse allegations, it must:
  • consider making immediate temporary orders to protect the child
  • change living or care arrangements
  • advise the necessary state protection authorities (in NSW, DoCJ)
  • act as quickly as possible to resolve the case

Magellan Program:

• The court will appoint an ‘independent children’s lawyer’ and the case may be moved to a special program of cases called the Magellan Program.
• Magellan cases involve serious allegations of child abuse (receive special case management, early attention to protection for the child, and expert attentions of a specialized team of judges, registrars and family consultants).

Dealing with Family Violence in NSW:

• Crimes (Domestic and Personal Violence) Act 2007 (NSW) is the main legislation dealing with domestic and family violence in NSW.
• Objectives of the Act are to ensure the safety of all people who experience or witness domestic violence and to reduce and prevent violence.
• s 11 describes domestic violence as personal violence committed against someone with whom the offender has (or has had) a domestic relationship.
• The definition is so wide, it includes every domestic arrangement imaginable.

Domestic Relationship Definition:

• s 5 Crimes (Domestic and Personal Violence) Act 2007 (NSW) defines a ‘domestic relationship’ to include:
  • Married couples
  • De facto couples
  • Intimate personal relationships (does not need to be sexual in nature)
  • Living in the same household
  • Relatives

Violence Between Spouses:

• Many forms including physical, sexual, psychological, and emotional abuse.
• Includes behavior that is threatening, controlling, dominating, intimidating, and stalking.

Statistics: ‘Family, Domestic and Sexual Violence in Australia: Continuing the National Story 2019’ AIHW:

• 2.2 million Australians have experienced physical or sexual violence from a current or previous partner.
• 1 in 6 women and 1 in 16 men in Australia have experienced physical or sexual violence from a current or previous cohabiting partner.
• 1 woman was killed every 9 days and 1 man was killed every 29 days by a partner in 2014-15 and 2016-17.
• Indigenous people were 32 times as likely to be hospitalized for family violence as non-indigenous people in 2016-17.
• 25% of women and 5% of men have experienced emotional abuse from a current or previous cohabiting partner.
• 1 in 3 women and 1 in 5 men with disabilities experienced emotional abuse from a partner.

Effectiveness of the Law in Protecting Victims of Domestic Violence:

• The concept of ‘battered wife syndrome’ was originally applied only to women in heterosexual marriages and was extended to include battered partners in de facto relationships
• Bail (Domestic Violence) Amendment Act 1993 (NSW) amended s 9A Bail Act 1978 (NSW) to exclude domestic violence offenders from an automatic presumption in favor of bail. Amended in response to Andrea Patrick Case (1993)
• Firearms Act 1996 (NSW) prohibits the issue of, or revoking a gun license if the individual has been subject to an AVO.

Violence Against Children:

• Article 19 CROC declares it is the responsibility of the state to protect the child from all forms of harm.
• Children and Young Person (Care and Protection) Act 1998 (NSW) covers abuse DoCJ implements laws under the Act.
  • s 227 prohibits intentional acts resulting in physical, sexual, emotional or psychological harm.
  • ss 24-27 certain professionals (i.e. teachers, doctors, school counsellors) must report to DoCJ if they suspect a child is at risk of harm.
• Possible outcomes after DoCJ has been notified about abuse of a child:
  • An Apprehended Violence Order is made
  • Police can charge accused
  • Family Court can restrict contact by offender
  • DoCJ can apply for a variety of care and protection orders (i.e. removal of child from a violent environment).

Children Legislation Amendment (Wood Inquiry Recommendation) Act 2009 (NSW):

• Raised the mandatory threshold for reporting to DocJ from ‘risk of harm’ to ‘risk of significant harm’.
• Simplified and streamlined the Children’s Court process.
• Established Child Wellbeing Units in government agencies that work with children.

NSW Wood Special Commission of Inquiry into Child Protection Services in NSW:

• Revealed NSW had one of the lowest thresholds for reporting in Australia, resulting in the Child Protection Helpline being overwhelmed with reports about children who did not require statutory intervention.
• The threshold for reporting was changed from ‘risk of harm’ to ‘risk of significant harm’ so only children who are likely to need the protection powers of the State are subject to it.
• If there are reasonable grounds to suspect a child is at risk of significant harm, mandatory reporters must make a report to the Child Protection Helpline.
• The alternate reporting process includes the introduction of Child Wellbeing Units (CWUs). CWUs were established in the 4 government agencies responsible for the largest number of child protection reports: NSW Health, NSW Police Force, Department of Education, and Department of Communities and Justice.
• CWUs can assist mandatory reporters in determining whether a report meets the significant harm threshold- if the report falls below the new threshold, they provide advice on the ways that families can receive the level of local help that they need.

Violence by Children:

• Children are treated differently when they break the law.
• Children are either sent to Children’s Court or are treated under the Young Offenders Act 1997 (NSW).
• The use of warnings, cautions, and counselling is used rather than coming into contact with the courts and punishing them.
• The long-term goal is to prevent children from becoming an offender as an adult.

Apprehended Violence Orders (AVO):

• There are three types:
  • Apprehended Violence Order (AVO)
  • Apprehended Domestic Violence Order (ADVO)
  • Apprehended Personal Violence Order (APVO)

Apprehended Violence Order:

• A court order that aims to protect the applicant from violence by another person.
• Apprehended Domestic Violence Order: A specific type of AVO where the people involved are related, living together or in an intimate relationship, or have previously been in this situation before; Part 4 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
• Apprehended Personal Violence Order: A specific type of AVO where the people involved are not related and do not have a domestic relationship.

History of ADVOs:

• 1982- Crimes (Domestic Violence) Amendment Act 1982 (NSW) amended Crimes Act 1900 (NSW) to introduce ADVOs in NSW.
• 1983- Protection was extended to cover those who had previously been married or living in a de facto relationship (recognized violence frequently occurs after separation).
• 1989- Amendments extended to include a broad range of domestic relationships.
• 2007- Laws regarding AVOs were removed from the Crimes Act 1900 into a stand-alone Act: Crimes (Domestic and Personal Violence) Act 2007 (NSW).

Apprehended Domestic Violence Order:

• Victims of domestic violence can press criminal charges or they can apply to the Local Court for an ADVO.
• ADVOs are used for applicants who know their attacker
• Designed to restrain the defendant from contacting the victim and may place other necessary conditions on them.
• The person is not charged with a criminal offence, only if the person breaches the conditions of the ADVO they will be charged.

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

• Permits senior police officers to issue ADVOs.
• Children can be included on an adult’s ADVO application.
• A police officer is the only person who can apply for an AVO for children under 16, those over 16 can apply for their own AVOs.
• The court may grant AVO for children even if the applicant was not made by a police officer.
  • s 38 Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Effectiveness vs Ineffectiveness of ADVOs:

Legislation Features re: Domestic Violence: