Family law in Australia

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Full Title Copyright Preface Acknowledgments Table of Cases Table of Statutes Table of Contens Chapter 1 Law, Society and the Family Introduction A short history of English marriage and divorce law Marriage Marriage breakdown and its early remedies Annulment Parliamentary divorce Divorce for the common man (and woman?) The coming of divorce From fault to irretrievable breakdown Adultery Cruelty, desertion and incurable insanity Irretrievable breakdown Developing an Australian family law Introduction Matrimonial Causes Act 1959 (Cth) Family Law Act 1975 (Cth) The creation of the Family Court of Australia Families in Australia: The modern social context The modern family Families based on marriage Families based on cohabitation — ‘de facto’ marriage Same-sex couples Children as the basis of family law regulation Family violence and family law The psychological impacts of relationship breakdown Infants and toddlers Preschoolers School age Helping younger children transition Early adolescence Reading the signs Chapter 2 Dispute Resolution in Family Law Introduction Out-of-court FDR Family Relationship Centres What is FDR and who are FDR practitioners? Family Law (Family Dispute Resolution Practitioners) Regulations 2008 (Cth) Dispute resolution processes Negotiation Mediation Child-inclusive mediation Further FDR processes outside the court system Collaborative law Legal aid conference/dispute management Arbitration Pre-action procedures Parenting disputes and s 60I certificates Property settlement and maintenance When is FDR unsuitable? FDR processes within the court system Family consultants Conciliation and case assessment conferences Obligations on advisers Family counselling in respect of children Confidentiality and admissibility of communications in family counselling and FDR Chapter 3 Violence and Abuse Introduction Government inquiries following the 2006 reforms New definitions of ‘family violence’ and ‘child abuse’ in the FLA Recent developments Family violence Child abuse International instruments Injunctions Introduction The injunction as protection from violence and harassment Injunctions excluding a party from the home Injunctions for the protection of a child (and others) Enforcement Protection orders under state and territory legislation Relationship between Commonwealth and state or territory laws What constitutes child abuse? Incidence, causes and effects of child abuse Protecting children from abuse under state and territory legislation Mandatory reporting under state and territory laws Mandatory reporting under the FLA State intervention for the protection of a child Child protection: the relationship between the Commonwealth and state and territory laws Other strategies Chapter 4 Constitutional Powers and the Family Courts Introduction Constitutional powers The marriage power The matrimonial causes power The FLA The first challenge to the FLA: Russell v Russell The effects of Russell v Russell The limits of federal jurisdiction Introduction Federal law and the adoption of children Third parties and the ‘child of the marriage’ Wardship and the welfare jurisdiction of the Family Court Testing the limits of the welfare jurisdiction Other proceedings between the parties Overcoming the limitations: first steps Involvement of the state courts State family courts The Family Court of Western Australia Overcoming the limitations: bold steps Associated and accrued jurisdiction Referral of power Cross-vesting of jurisdiction Domicile and the basis of jurisdiction The Family Courts The Family Court of Australia The Federal Circuit Court of Australia The Family Court of Western Australia Appeals The nature of appeals Full Court of the Family Court of Australia Appeals from the Federal Circuit Court of Australia (and the Magistrates Court of Western Australia) Appeals from the Family Court of Australia and the Family Court of Western Australia (or a state and territory Supreme Court) Appeals to the High Court Chapter 5 Marriage and De Facto Relationships Introduction Marriage Essential characteristics Monogamy Polygamy Indigenous Australians — Aboriginal customary marriages A man and a woman A voluntary union For life Engagements and breach of promise Codifying marriage Introduction Marriage Act Marriage Amendment Act 1985 (Cth) and the marriage of foreign nationals in Australia Capacity to marry Freedom to marry Prohibited relationships Marriageable age Consent to the marriage of minors Formalities Marriages in Australia by authorised celebrants Consular marriages in Australia Australian marriages overseas Recognition of foreign marriages Introduction The ‘new’ statutory recognition rule: local law Recognition at common law No recognition of ‘foreign’ same-sex marriages Presumed validity of marriage Second marriage ceremonies Consequences of non-compliance with the Marriage Act Legitimation De facto relationships Introduction De facto relationships and the FLA The FLA definition The nature of the s 4AA inquiry The key concepts — ‘a couple living together on a genuine domestic basis’ Multiple relationships The circumstances of the relationship Existence of the relationship over time De facto relationship declarations Relationship registration schemes Close and caring personal relationships Civil partnership laws Chapter 6 Nullity, Divorce and Termination of De Facto Relationships Introduction Jurisdiction — divorce and nullity Institution of proceedings Nullity Introduction Subsisting prior marriage Prohibited relationships Invalidity under s 48 of the Marriage Act 1961 (Cth) Absence of real consent Duress or fraud Mistake Mistake of identity Mistake as to the nature of the ceremony Mental incapacity Party below marriageable age Divorce Introduction Irretrievable breakdown of marriage Separation Separation under the same roof Reasonable likelihood of cohabitation being resumed Duration of separation The two-year marriage — s 44(1B) and (1C) of the FLA Divorce orders When divorce order takes effect Arrangements for children Rescission of divorce orders Foreign divorces, annulments and legal separations Void and invalid marriages Divorce and nullity Declarations of validity Ancillary proceedings Termination of de facto relationships Introduction Meaning of breakdown What constitutes breakdown of a de facto relationship Registered relationships and civil partnerships Chapter 7 Parentage Introduction Status of children Historical background Status of children legislation Establishing parenthood Presumptions of parentage under the FLA Parentage evidence Assisted conception Legislative solutions Known donors under the FLA Assisted conception and child support Regulation of artificial/assisted conception and related research procedures Status of frozen embryos Posthumous sperm Legislative developments Access to assisted conception procedures Surrogacy The status of surrogacy arrangements Legislative developments Surrogacy arrangements and the FLA Conflicting decisions in the Family Court Parental responsibility v orders for legal parentage Conclusion Chapter 8 Child-Related Disputes: The Legislative Framework Introduction The United Nations Convention on the Rights of the Child 1989 Proceedings in respect of children under the FLA Background to the current legislative regime Scope of operation of Pt VII of the FLA Key features of Pt VII Parental responsibility Content of parental responsibility Who has parental responsibility? Joint or several responsibility? Scope of parental responsibility Reallocation of parental responsibility Parenting agreements Institution of proceedings and procedure Who may institute proceedings? Required jurisdictional connection Parenting orders Orders dealing with where a child lives Orders dealing with children spending time, or communicating, with another person Proceedings in respect of parenting orders Exercise of the court’s jurisdiction: the best interests of the child as the paramount consideration The mandatory process for determining best interests Scope of operation of the best interests of the child principle under the FLA The less adversarial trial Representation of children’s interests: the independent children’s lawyer Circumstances in which the court may appoint an ICL Role of an ICL Discharging an ICL Expert evidence Family reports by family consultants Orders that can be made General Orders least likely to lead to further proceedings Interim orders Variation of orders in respect of children Interrelationship between parenting orders and family violence orders The Family Court’s welfare jurisdiction Enforcement of orders in relation to children Background The current legislative scheme Specific legal mechanisms dealing with non-compliance Legislative restrictions regarding the removal of children from Australia Location orders Recovery orders International child abduction Chapter 9 Children and Parents: The Exercise of Discretion in Reallocating Parental Responsibility Introduction The statutory framework for applying the best interests principle Applying the presumption of equal shared parental responsibility The operation of s 65DAA and shared parenting The historical preference for mothers as custodians Attachment theory Research on the benefits to children of shared parenting The use of social science research as an aid to the exercise of discretion Section 65DAA and shared parenting Relevant considerations in the exercise of the court’s discretion Introduction Findings of credit Primary versus additional considerations The two primary considerations The benefit to a child of a meaningful relationship with both parents Protection from harm and family violence Additional considerations Views of the child Disturbing the status quo Separation of siblings Parents, third parties and the role of biology in decision-making The general conduct of the parties Matrimonial conduct of the parties Kidnapping Unconventional lifestyle Homosexuality Religion Children of Aboriginal or Torres Strait Islander descent ‘Spend time with’ orders Orders not permitting children to spend time with parents Orders for children to spend time with non-parents The impact of a child not wanting to spend time with a parent The intractable nature of ‘spend time with’ orders Allegations of child sexual abuse in contested child proceedings Relocation cases Change of name Chapter 10 Financial Support of Married and De Facto Partners Introduction Support of married partners Introduction The history of spousal maintenance Policy issues in the current law Jurisdiction and types of maintenance orders Entitlement to spousal maintenance The threshold: s 72 The court’s power under s 74 and the s 75(2) factors The parties’ needs and means Financial relationships with third parties Section 75(2)(o) and considerations of conduct Private and public purses: the relationship between spousal maintenance and social security Spousal maintenance orders Form Modification Duration Enforcement The future of spousal maintenance Support of de facto partners Introduction Statutory maintenance entitlements prior to the commencement of Pt VIIIAB in 2009 Statutory maintenance entitlements after the commencement of Pt VIIIAB Threshold issues and time limits Geographical requirements The court’s power under s 90SE and the s 90SF(3) factors Modification and cessation of de facto relationship maintenance order Enforcement Child-bearing expenses Chapter 11 Financial Support of Children Introduction Child maintenance principles under the FLA Maintenance for adult children Applications on the basis of an adult child’s disability Applications to enable an adult child to complete his or her education Liability of step-parents for child maintenance The CSS Introduction Background to the introduction of the CSS Reform of the CSS Registration and collection of child support Introduction Objects Collection, payment and enforcement of child support Associated changes to social security Administrative assessment of child support Introduction Children to whom administrative assessment applies Persons who may apply for administrative assessment Persons who may be liable for administrative assessment Recovering money wrongly paid under an administrative assessment Processing applications for administrative assessment Child support period Statutory formula for administrative assessment of child support Departure from administrative assessment Introduction Significantly reduced capacity of either parent to provide financial support High costs of the child Child or parents’ financial situation and payments in lieu of child support Changes to an assessment under Pt 6A Varying a departure from assessment Orders for child support other than in periodic form Private arrangements for child support Cessation of child support Chapter 12 Property Proceedings: Preliminary Issues Introduction Achieving economic justice? The economic consequences of relationship breakdown Extraneous factors resulting in financial disadvantage for women Historical background The Commonwealth and married couples Parties to a de facto relationship Policy and reform issues in relation to financial matters Jurisdiction Married couples Arising out of the marital relationship Proceedings following the death of a party Principal relief, including overseas divorce and nullity Parties to former de facto relationships De facto couples: threshold conditions Conclusion Chapter 13 Property Proceedings: The Legislative Framework Introduction The time limits for bringing an application for property settlement Married couples Parties to former de facto relationships The finality principle Declaration of property interests An overview of the relevant legislative provisions for dividing property Dividing property under the FLA The four-step approach post-Stanford The first ‘fundamental principle’: identifying legal and equitable interests in property Defining property Financial resources Companies and discretionary family trusts Notional property and add backs? Notional property post-Stanford Valuing property Liabilities Full and frank disclosure The second and third ‘fundamental principles’ and the just and equitable requirement A structured approach: four or five steps? The nature of the inquiry The content of the inquiry A summary of the property pathway post-Stanford Conclusion Chapter 14 Property Proceedings: The Exercise of the Discretion Introduction The exercise of the discretion The alteration of property interests Identification of contributions Financial contributions Non-financial contributions Contributions to the welfare of the family Assessing contributions Global or asset-by-asset approach? The rise of the partnership approach and the fall of ‘special contributions’ Equality as a starting point rejected Greater value (in theory) placed on ‘women’s work’ The rise and fall of ‘special’ contributions The rise and rise of special contributions The fall and fall of special contributions Financial misconduct Family violence The Kennon decision After Kennon Contributions Initial contributions Post-separation contributions Gifts Inheritances Windfalls Compensation awards Additional factors Section 79(4)(d)/90SM(4)(d): effect on earning capacity Section 79(4)(e)/90SM(4)(e): other factors Increased emphasis on ‘other factors’ Section 79(4)(f)/90SM4(f): order affecting a party or child Section 79(4)(g)/90SM(4)(g): child support The contemporary approach to additional factors A ‘just and equitable’ order Forms of order for property adjustment Relationship between spousal maintenance and property adjustment Conclusion Chapter 15 Property Proceedings: Specific Issues Introduction Superannuation Superannuation before the 2002 amendments Background information on superannuation Superannuation after the 2002 amendments Splitting orders and flagging orders Is superannuation property? Superannuation agreements Injunctions Introduction Injunctions restraining the disposition of property Orders and injunctions against third parties Situation after the commencement of Pt VIIIAA Practical implications of Pt VIIIAA Section 85A Setting aside transactions Position of the bona fide purchaser Conclusion Financial agreements and consent orders Orders made with the consent of the parties Maintenance agreements under the FLA (1976–2000) Financial agreements under the FLA (2000–present) Requirements of financial agreements that are enforceable between the parties What may be included in a financial agreement Spousal maintenance Other matters relating to financial agreements Setting aside a financial agreement A binding financial agreement that ousts the jurisdiction of the courts Family Law Amendment (Financial Agreements and Other Measures) Bill 2015 (Cth) Bankruptcy and the FLA Introduction: Becoming bankrupt in the context of family law proceedings Bankruptcy and Family Law Legislation Amendment Act 2005 (Cth) Setting aside property orders Introduction Miscarriage of justice Impracticability Default Exceptional circumstances relating to the care, welfare and development of a child Consent to vary Varying orders made with the consent of the parties Conclusion Index