Family Law – Comprehensive Study Notes

Divorce: Definition & Historical Context

  • Divorce = The legal termination of a marriage; a formal response to unresolved problems in family relationships.
  • Matrimonial Causes Act 1959 (Cth)
    • Listed 14 separate fault-based grounds (adultery, cruelty, desertion, etc.).
    • Required proof that one party was “at fault”.
  • Family Law Act 1975 (Cth)
    • Introduced no-fault divorce.
    • Sole ground: “irretrievable breakdown of the marriage” \text{(s48)}.
    • Breakdown only proved by at least 12 months’ separation.

Requirements for Divorce (current)

  • Either spouse may apply; consent of the other not essential.
  • Applicant must be an Australian citizen or ordinarily resident in Australia/NSW.
  • If married < 2 years → compulsory counselling certificate required.
  • Application lodged in the Federal Circuit & Family Court of Australia (FCFCOA).

Proving Separation

  • Family Law Handbook: separation = “severance of the marital relationship … change in the overall character of the relationship.”
  • Court will examine whether parties:
    • Live together, have sexual relations.
    • Share domestic chores (cook/clean).
    • Present socially as a couple; jointly care for children.
    • Spend time together, provide mutual support/protection.
    • Assess significant lifestyle change compared with pre-separation.

Separation Under One Roof

  • Not defined in legislation → common-law test.
  • In the Marriage of Falk 1977
    • “Separation means departure from the state of things rather than place.”
    • Intention to separate must be communicated.
  • In the Marriage of Pavey 1976
    • Must contrast pre- and post-separation states.
    • Some shared activities do not negate separation.

“Kiss and Make-Up” Clause (FLA s50)

  • If couple resume cohabitation for < 3 months within the 12-month separation, original separation period continues (no reset).
  • Second failed reconciliation → separation period must restart.

Finalising Divorce

  • File Application for Divorce → listing before FCFCOA.
    • Attendance only mandatory if children of the marriage are <$18$.
  • If requirements satisfied → court issues decree nisi.
    • Can be rescinded if parties reconcile before finalisation.
  • One month later decree becomes absolute → marriage legally dissolved.

Trends: Divorces Involving Children

  • Proportion with children <$18$ has fallen:
    • 1975: 67.6\%
    • 2017: 47.1\% (AIFS data)

Children: Guiding Principle – “Best Interests”

  • Central since 1975; codified 1995 reforms to Family Law Act, based on UN CROC.
  • Considers long- & short-term welfare: physical, emotional, financial, moral, cultural, educational, religious & health interests.

s60CC “Best Interests” Factors

  • Primary
    • Protection from physical/psychological harm.
    • Benefit of meaningful relationship with both parents.
    • 2011 amendment: where conflict exists, protection has priority.
  • Additional (sample)
    • Child’s views & maturity.
    • Nature of relationships (siblings, grandparents).
    • Effect of change / separation.
    • Practical difficulty of contact.
    • Personal characteristics (culture, gender, background).
    • Any family violence / orders in force.

Key Amendments

  • Family Law Reform Act 1995 (Cth) – introduced terminology “parental responsibility”, “best interests”.
  • Family Law (Shared Parental Responsibility) Amendment Act 2006
    • Encourage shared & cooperative parenting; emphasis on non-court resolution.
  • Family Law (Family Violence) Amendment Act 2011
    • Strengthened child-protection priority.

Resolving Parenting Arrangements

  1. Private Agreement
    • No obligation to lodge; parties self-manage.
  2. Parenting Plan (written, signed & dated)
    • Covers living arrangements, decision-making, contact, future change & dispute-resolution process.
    • Non-binding; cannot be enforced by court.
  3. Consent Order
    • Private agreement filed & approved by court (no hearing needed).
    • Breach → contravention proceedings available.
  4. Parenting Order (court-determined)
    • Issued when parties cannot agree.
    • Deals with residence, time, parental responsibility, communication, specific issues (schooling, medical, etc.).
    • Modern orders avoid “custody/contact”; detail types of time (eg half of each holiday).

Non-Compliance Consequences

  • Court may: vary orders; mandate parenting programs; compensate lost time/expenses; impose bonds, fines, community service; award costs; or sentence imprisonment.

Significant Child-Related Case Law

  • B & B 1995 – Interstate relocation allowed; mother found not to undermine father–child relationship.
  • Rosa v Rosa 2009 – High Court: courts must test practicability before ordering equal time; mother not forced to remain in caravan park.
  • Duke-Randall v Randall 2014 – Vaccination dispute; child welfare paramount → Father permitted to vaccinate children.
  • Masson v Parsons 2019 – High Court: known sperm donor recognised as legal parent due to active parenting role and absence of de facto partner at conception; federal law overrides state exclusion.

Property & Financial Settlements

  • Marriage does not create automatic co-ownership.
  • Family Law Act 1975 s79 – court may make just & equitable orders over all property (joint or separate).
  • Parties may settle by Consent Order; legal advice recommended.

Court Considerations (non-exhaustive)

  • Direct & indirect financial contributions to acquisition/improvement.
  • Non-financial contributions (homemaking, parenting).
  • Impact on each party’s future earning capacity.
  • Any existing orders (eg maintenance).

Four-Step Property Method (FCFCOA practice)

  1. Identify & value property pool.
  2. Assess contributions → initial % split.
  3. Adjust for future needs/resources.
  4. Formulate actual distribution; ensure overall fairness (e.g., superannuation split complexities).

Key Property Cases

  • Kowaliw 1981 – Deliberate or reckless waste of assets by one party ≠ shared; court adjusted division.
  • Coghlan 2005 – “Two-pools approach”; superannuation treated as distinct asset class.
  • Moore v Moore 2008 – Previous consent orders can be revisited; final split adjusted to 50–50 after long reconciliation & fresh facts.
  • Unnamed 2015 (\approx 40 m case) – Full Court raised wife’s share from 40\% to 50\%; homemaker role given equal weight, rejecting presumption of equality but emphasising substantial contribution.

De Facto Relationships (inc. Same-Sex)

  • Family Law Amendment (De Facto Financial Matters) Act 2008 (effective 2009)
    • De facto partners (incl. same-sex) access federal property/maintenance jurisdiction if:
    • Relationship lasted ≥ 2 years &
    • Separation after 1/3/2009.

Domestic & Family Violence

  • Definition: Any violent, abusive or intimidating behaviour by partner, carer or family member aimed at control; encompasses physical, sexual, emotional, psychological & financial abuse.
  • Occurs across all demographics.

Core NSW Statute

  • Crimes (Domestic and Personal Violence) Act 2007 (NSW)
    • s9 objectives: safety, prevention, UN alignment (CEDAW, CROC).
  • Family Law Act 1975 s4AB(1) – federal definition of “family violence”.

Notable NSW Amendments

  • Crimes (D&PV) Amendment 2013 – Police authorised to issue provisional ADVOs, detain for service, expanded powers.
  • Crimes (D&PV) Amendment (Information Sharing) 2013 – Cross-agency data sharing framework.
  • Crimes Amendment (Provocation) 2014 – Limits “provocation” defence; jealous-rage killings excluded.
  • Crimes Amendment (Strangulation) 2014 – Specific offences for choking/suffocation.
  • Draft Crimes Legislation Amendment (Coercive Control) Act 2022 – Proposes up to 7 years’ imprisonment for coercive control pattern.

Prevalence Statistics (ABS Personal Safety Survey 2016)

  • 39\% (≈ 7.2 m) Australians ≥18 experienced violence since 15 yo.
    • Men: 42\% (≈ 3.8 m)
    • Women: 37\% (≈ 3.4 m)

ADVOs (Apprehended Domestic Violence Orders)

  • Court orders restricting defendant’s behaviour to protect victim.
  • Based on future fear of violence, intimidation, stalking, harassment, threats.
  • Not a criminal conviction; breach = crime → max 2-year imprisonment and/or 50 penalty units (≈ \$5{,}500).
  • Police may now issue on-the-spot provisional orders (post-2013 reforms) to avoid leaving victim unprotected during application.

Violence Against / By Children

  • Article 19 CROC – State must protect child from all violence.
  • Children and Young Persons (Care and Protection) Act 1998 (NSW)
    • Mandated reporters (teachers, doctors, etc.) must notify risk of significant harm.
    • 2009 Wood Inquiry amendments → “significant harm” definition, Children’s Court streamlining, Child Wellbeing Units.
  • Criminal liability: Children (Criminal Proceedings) Act 1987 (NSW)
    • Children <$10$: doli\,incapax (incapable of crime).
    • Diversion via Young Offenders Act 1997: warnings, cautions, youth justice conferences preferred over court.
  • Ebony (R v BW & SW 2007) – Parents convicted (life / 16 yrs) for starvation-murder of autistic child; systemic failure criticisms.

High-Profile Incidents / Media Influence

  • Hannah Clarke family murder 2020, Molly Ticehurst 2024 – spurred bail & coercive-control reform debates.
  • Rosie Batty advocacy following son’s murder shaped national policy.

Dispute Resolution Framework

  • Family Dispute Resolution (FDR) – \text{FLA s10F}: non-judicial process using independent practitioner.
  • Delivered via Family Relationship Centres & private providers.

Main Forms

  1. Counselling (mandatory for marriages < 2 yrs; child-related disputes).
  2. Mediation – Neutral third party facilitates agreement; often prerequisite before court filing.
  3. Post-Separation Parenting Programs – Education & skills training for cooperative parenting.
  4. Adjudication – Formal judicial determination in FCFCOA/Family Court (last resort).

Courts Hierarchy

  1. Federal Circuit & Family Court of Australia Division 2 (formerly Federal Circuit Court)
    • Handles >75\% of family law matters.
    • Grants uncontested divorces; streamlined procedures.
  2. FCFCOA Division 1 (formerly Family Court)
    • Complex matters: multiple children, serious DV, child abuse (Magellan cases), international relocation, etc.
  3. NSW Children’s Court
    • Care & protection applications under CYPCPA 1998.

Non-Government Organisations & Lobby Groups

  • Church-Based: CatholicCare, Anglicare – counselling, some FDR; encourage reconciliation.
  • Secular Broad-Service: Relationships Australia – hotline, FDR, counselling, DV support.
  • Targeted Groups: Dads in Distress, Lone Fathers Association – support fathers; influenced 2006 shared-parenting reforms.
  • Advocacy Coalitions
    • Domestic Violence Committee Coalition (DVCC) – drove NSW Domestic Violence Death Review Team 2010.
    • Australian Marriage Equality, NSW GLRL – de facto & marriage equality reforms.
  • Media Role
    • Investigative pieces (e.g., SMH 2008 domestic homicide series, Chisholm Review coverage) create public pressure → legislative & policy change.

Methods, Principles & Implications – Quick Reference

  • Sole divorce ground = 12-month separation evidencing irretrievable breakdown.
  • “Best interests of child” paramount; protection > relationship if conflict.
  • Property division = discretionary; no fixed formula; four-step test guides.
  • ADVOs protective, not punitive; breach criminalised.
  • Trend toward alternative dispute resolution; court as last resort.
  • Ongoing reforms: coercive control criminalisation, family court structural overhaul, enhanced information-sharing to protect victims.