Australian family law – The constitutional framework

Australian family law The constitutional framework
Australia has a federal system of government – authority is divided by the Australian Constitution between the States and the Commonwealth (Federal) governments.  The Constitution is set out in the Commonwealth of Australia Constitution Act 1900(Cth).

Three types of power are exercised at both the state and federal levels, these are:

legislative
executive
judicial 

Legislative power is the power of a parliament to make laws, executive power is the power to “implement, enforce and administer” the laws, judicial power is the power to make decisions about the application of the law to a particular dispute between parties.

The Family Law Act 1975 (Cth)
The principal aim of the Family Law Act 1975(Cth) was to reform the law governing the dissolution of a marriage and was a response by the government at the time to what it saw as widespread public dissatisfaction with the existing law.

The Act was vigorously debated and finally came into force on 5 January 1976. It replaced the Matrimonial Causes Act 1959(Cth) and superseded State and Territory laws about “guardianship, custody, access and maintenance of children of a marriage”.

The main changes introduced by the Family Law Act 1975 (Cth)  
The act introduced changes to the way divorce was dealt with including:

fourteen grounds for divorce were replaced with one “no fault” ground which was the irretrievable breakdown of the marriage demonstrated by a minimum period of 12 months during which the parties lived “separately and apart”. Previously, evidence had to be given to the Court to show that one party had been guilty of misconduct such as adultery or cruelty, habitual alcoholism, desertion or insanity, or that there had been a five year separation.  Fault, or “Guilt” was no longer to be a consideration in deciding with whom the children should reside or what maintenance might be paid
created the Family Court of Australia – one court established to administer the Act but with the option for each State to set up its own State court to administer the Act (Western Australia was the only State to do this)
highlighted the importance of counselling to assist couples who were in the process of separation and divorce and attached this service to the Court
the welfare of the children was to be the most important consideration
publication of information which identified parties or witnesses in a case was prohibited unless one of the exceptions listed in the Act applied
courts were “closed”, this provision was repealed in 1983
procedures were simplified and formality reduced, no wigs and gowns were to be won by Judges or barristers (they were introduced in 1987)

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Amendments to the Family Law Act 1975 (Cth)
There have been a number of amendments to the Act. In particular, the Family Law Reform Act (Cth) which came into force on 11 June 1996 amended significant sections relating to children. 

The changes included the introduction of the concept of “parental responsibility”, “residence”, “contact” and “specific issues” orders. These changes recognised the desirability of continuing joint responsibility and cooperation in parenting after separation or divorce. 

Are all children covered by the Family Law Act 1975 (Cth)?
Originally only children who were children of a marriage were covered by the Act because the Federal Parliament only had the power to make laws in relation to matters associated with divorce. 

In each State, ex-nuptial children were subject to different laws about residence and contact if their parents’ relationship broke down. Under the Australian Constitution, the states may refer their powers to the federal parliament by mutual agreement. 

All States except Western Australia have done this and children are covered by the Family Law Act 1975 (Cth) whether or not they are children of a marriage. Whilst Western Australia did not refer its powers, Western Australia has a State Family Court which exercises federal jurisdiction under the Family Law Act 1975(Cth) so the same provisions also apply to children living in that state.

What family related issues can the States make laws about?
There are some child and family related matters about which only the State Parliaments can make laws. Some examples include:

care and protection of children
adoption of children
equality of status of ex-nuptial children
family provision form the estate of a testator
property disputes between de facto couples
criminal matters e.g. domestic violence.

This article provides basic information only and is not a substitute for a professional or legal advice . If you are likely to be involved in court proceedings or legal action, you should get advice from a Family lawyers Brisbane

 

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