The Family Law Act 1975 is the national piece of legislation which governs all family law matters in Australia (with the exception of Western Australia which is governed by the Family Court Act 1997 (Western Australia) and the Family Legislation Amendment Act 2006 (Western Australia)). The Family Law Act is the legislation covering all family law matters, irrespective of whether the matter is being dealt with by the Family Court of Australia or Federal Circuit Court of Australia.
The Family Law Act addresses matters involving divorce, property settlement after marriage breakdown or de facto relationship breakdown, spousal maintenance for a party to a marriage, de facto partner maintenance for a party to a de facto relationship that has broken down, and issues relating to parenting arrangements after separation, irrespective of whether the parents of the child were married, in a de facto relationship, or not in a relationship at all.
In 1975 the Matrimonial Causes Act 1959 was replaced by the Family Law Act 1975. The former law gave rise to property settlement and child custody but only if connected to “principal relief” i.e., an application for divorce or nullity, whereas the new current law introduced a no fault ground for divorce, provided that twelve months of separation and the other requirements were established. The Family Law Act also sought to streamline family law matters to ensure that procedures were simplified, matters were more efficiently resolved, and closed courts were introduced for privacy.
Since its introduction in 1975 the Family Law Act has undergone significant changes. One of these changes includes the amendments introduced by the Family Law Amendment (Shared Parental Responsibility) Act 2006 which came into force on 1 July 2006. These reforms changed some of the terminology used in parenting disputes, introduced a presumption about equal shared parental responsibility, and rearranged the principles and criteria to be considered in making parenting orders.
The amendments also changed the terminology in the law such that the terms “custody” and “residence” changed to “live with” orders and the terms “access” and “contact” were changed to “spend time with” orders. The terms “custody”; “care and control”; “residence”; “contact”; and “access” were all removed from the legislation.
More importantly, the 2006 reforms introduced the concept of shared parental responsibility and the concept of ‘best interests’ as defined by section 60CC of the Act. The problem with the presumption of equal shared parental responsibility, however, was that the best interests of the child became explicitly aligned with collaborative parenting. However, empirical research suggested that the success of the 2006 parenting reforms in producing more shared care outcomes came at a cost to the psychological well-being of many children who were caught in the middle of their parents’ conflict.
The problem with the definition of “best interests” as defined by section 60CC at that time was that the primary considerations of the benefit to the child of having a meaningful relationship with both of the child’s parents; and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence, created a trap whereby if one parent was a victim of family violence by the other parent, they would be required to put the child’s relationship with the other parent before their own safety.
To address this issue, further reforms were introduced by way of the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011. In the second reading of the Bill, the Attorney-General stated: “In an evaluation of the 2006 family law reforms released by the government last year, the Australian Institute of Families Studies (AIFS) found that two-thirds of separated mothers and over half of separated fathers reported experiencing abuse, either emotional or physical, by the other parent. The Australian Institute of Family Studies also found that one in five separated parents surveyed reported safety concerns associated with ongoing contact with their child’s other parent…This government continues to support shared care and a child’s right to a meaningful relationship with both parents. However, where family violence or abuse is a concern, the courts will be required to prioritise the safety of the child over maintaining a meaningful relationship with each parent.”
These reforms clarified the law by inserting a provision into section 60CC of the Act stating that if there was any inconsistency between promoting a child’s meaningful relationship with both parents and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence, the Court is to give greater weight to the consideration of the need to protect the child from harm.
Another change was through the introduction of the The Family Law Amendment (De Facto Financial Matters and other Measures) Act 2008 which came into force on 1 March 2009 to enable same-sex and opposite-sex de facto relationships to seek property settlement including maintenance in a manner identical to that which was already provided for under the law for married persons, except in limited circumstances. These circumstances include de facto relationships ending prior to 1 March 2009, where an applicant cannot satisfy the jurisdictional or residential requirements under the Act, and carer relationships which fall outside of the scope of the Act, which are governed by state legislation. Prior to 2009, limited changes were implemented in the form of the De Facto Relationships Act 1984 which gave recognition and greater rights to de facto partners. However, they still did not have equal rights to married partners in the same position, particularly so in relation to financial adjustment (division of property and spousal maintenance).
Above are just some of the issues dealt with by the Family Law Act and only some of the important legislative amendments since its inception. However, the Family Law is also governed by decisions made by the Court in its application of the principles of the Act. The Family Law is always changing and is also affected by other social factors.
Due to the ever changing nature of Family Law, the attitudes of the community, experts relied on by the Courts and the changing approach by the Judges themselves, particularly in the area of parenting, it is important to understand that knowledge of the Family Law Act alone is not enough to be able to properly present a case in Court.
Only experienced Family Lawyers are able to provide someone with necessary, complete advice and competent representation in the Family Court jurisdiction. Therefore, if you require family law advice, we invite you to contact your nearest Prime Lawyers office to speak with one of our Family Lawyers.
We have offices in Sydney, Parramatta, Chatswood, Sutherland and Wollongong.