Family Law Act 1975 – 1 July 2014 (CTH)
“Resolve the situation informally, or have a third party resolve it for you (for additional cost)”…
Family Law Act 1975 – 1 July 2014
Family Law Regulations 1984 – 11 October 2013
Family Law Rules 2004 – 1 January 2015
Family Law (Fees) Regulation 2012 – 11 October 2013
*Note: For Commonwealth Coverage: update is limited, proclamations will not have been covered, and the following Acts/regulations at this point in time have not been included/covered:
Family Law (Child Abduction Convention) Regulations 1986 – 24 July 2007
Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 – 9 May 2006
Family Law (Bilateral Arrangements—Intercountry Adoption) Regulations 1998 – 28 June 2014
Family Law (Child Protection Convention) Regulations 2003 – 16 April 2003
Family Law (Judges) Regulations – 22 August 2004
Suggested Constitutional head of power
- 51(xxii) Divorce and matrimonial causes, and in relation thereto, parental rights, and the custody and guardianship of infants
- 51(xxix) External affairs
In general, a person is in a ‘de facto relationship’ with another person if: (a) the persons are not legally married to each other; and (b) the persons are not related by family; and (c) having regard to all the circumstances, they have a relationship as a couple living together on a genuine domestic basis. This is a complex definition with many elements that are fully set out in section 4AA of the Act. It is important to note that a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex. Further a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship. A de facto relationship may exist where the relationship is a ‘registered relationship’ under a law of a State or Territory.
- Section 4AA; Regulation 12BC of the Family Law Regulations 1984
The regulations may prescribe rules relating to accreditation of the family occupations: family counsellors, family dispute resolution practitioners, etc. For the definition of ‘family counselling’, refer to section 10B of the Act. For the definition of ‘family dispute resolution’, refer to section 10F of the Act. For details of the accreditation process currently in place for family dispute resolution practitioners, refer to the Family Law (Family Dispute Resolution Practitioners) Regulations 2008.
- Sections 10A, 10B, 10C, 10F, 10G, 10K; Regulations 4, 5, 6, 9, 10, 11, 14 of the Family Law (Family Dispute Resolution Practitioners) Regulations 2008
A family counsellor must not disclose a communication made to the counsellor while the counsellor is conducting family counselling, unless the disclosure is required or authorised.
- Sections 10D, 10E
A family dispute resolution practitioner must not disclose a communication made to the practitioner while the practitioner is conducting family dispute resolution, unless the disclosure is required or authorised.
- Sections 10H, 10J
A legal practitioner who is consulted by a person considering instituting proceedings under this Act must give the person documents containing the information prescribed under section 12B (about non-court based family services and court‘s processes and services). For a full listing of information provision requirements applying to a legal practitioner, refer to section 12E of the Act. Where a child may be affected by proceedings, additional obligations apply as set out in sections 60D and 63DA of the Act.
- Sections 12B, 12C, 12D, 12E, 60D, 63DA, 67ZA, 67ZB; Regulations 8, 8A, 8B of the Family Law Regulations 1984
A court exercising jurisdiction in proceedings under this Act may, at any stage in the proceedings, make one or more of the following orders: (a) that one or more of the parties to the proceedings attend family counselling; (b) that the parties to the proceedings attend family dispute resolution; (c) that one or more of the parties to the proceedings participate in an appropriate course, program or other service. In some instances, the court may refer the proceedings to arbitration pursuant to section 13E of the Act.
- Sections 10L, 10M, 10N, 13C, 13D, 13E, 13F, 13H; Regulations 67A, 67B, 67C, 67D, 67E, 67F, 67G, 67H, 67I, 67M, 67N, 67O, 67P, 67Q, 67R, Schedule 1 of the Family Law Regulations 1984
The Family Court of Australia is created and is a superior court of record. For what constitutes the original jurisdiction of the court, refer to section 31 of the Act. For jurisdiction in relation to ‘matrimonial causes’, refer to section 39 of the Act.
- Sections 4, 21, 21A, 21B, 27, 28, 30, 31, 33, 33A, 33C, 34, 39, 39A, 39B, 42, 69ZJ, 97
The Court or a Judge may, at any stage of a proceeding in the Court, direct that the proceeding or a part of the proceeding be conducted or continued at another place (as specified by the order).
- Section 27A
The Family Court shall, in the exercise of its jurisdiction, have regard to the following principles: (a) the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life; (b) the need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society, particularly while it is responsible for the care and education of dependent children; (c) the need to protect the rights of children and to promote their welfare; (ca) the need to ensure protection from family violence; and (d) the means available for assisting parties to a marriage to consider reconciliation or the improvement of their relationship to each other and to their children.
- Section 43
Proceedings under this Act for a divorce order in relation to a marriage may be instituted by either party to the marriage or jointly by both parties to the marriage. Note: An application for a divorce order in relation to a marriage shall not, without the leave of the court, be filed within the period of 2 years after the date of the marriage unless there is filed with the application a prescribed certificate. An application for a de facto relationship order may be made within the period of 2 years after the end of the de facto relationship.
- Sections 44, 44A, 46; Regulation 10A of the Family Law Regulations 1984
An application for a divorce order in relation to a marriage shall be based on the ground that the marriage has broken down irretrievably. The ground shall be held to have been established, and the divorce order shall be made, if, and only if, the court is satisfied that the parties separated and thereafter lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of the application for the divorce order. Note: A divorce order shall not be made if the court is satisfied that there is a reasonable likelihood of cohabitation being resumed. Upon a divorce order being made and taking effect, a party to the divorce application may marry again.
- Sections 4, 48, 49, 50, 53, 55, 55A, 56, 57, 59, 93, 98A
In general, the following principles are set out in the Act in relation to children (and would be applied except when it is or would be contrary to a child‘s best interests): (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and (d) parents should agree about the future parenting of their children; and (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
- Sections 4, 60B
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration. For how a court determines what is in a child’s best interests, refer to section 60CC of the Act.
- Sections 60CA, 60CB, 60CC, 60CD, 60CE, 60CF, 60CG, 60CH, 60CI, 65AA
A parenting order in relation to a child may be applied for by: (a) either or both of the child‘s parents; or (b) the child; or (ba) a grandparent of the child; or (c) any other person concerned with the care, welfare or development of the child. A court must not hear an application for a Part VII order, unless the applicant files in the court a certificate given to the applicant by a family dispute resolution practitioner. There are exceptions to this rule provided by subsection 60I(9) of the Act (for example, the application is made with the consent of all the parties to the proceedings). In addition, the court must in most instances not make parenting order unless the parties to the proceedings have attended family counselling (although not required where there is consent of the parties to the proceedings). Where child abuse is alleged, an interested person must file/serve a notice in the prescribed form pursuant to section 67Z of the Act. A similar rule applies to allegations of family violence – see section 67ZBA of the Act. For the definition of ‘abuse’ in relation to a child, refer to section 4 of the Act. For the definition of ‘family violence’, refer to section 4AB of the Act.
- Sections 4, 4AB, 60I, 60J, 65C, 65F, 67Z, 67ZBA, 69C, 69E, 102A; Regulation 12CAB of the Family Law Regulations 1984; Rule 2.04D, Schedule 2 of the Family Law Rules 2004; Regulations 26, 27, Schedule 1 of the Family Law (Family Dispute Resolution Practitioners) Regulations 2008
When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child‘s parents to have equal shared parental responsibility for the child. This presumption may be displaced by an incidence of abuse/family violence. For the definition of ‘parenting order’, refer to section 64B of the Act. When making a parenting order in relation to a child, the court is to have regard to the terms of the most recent parenting plan (if any) that has been entered into between the child‘s parents if doing so would be in the best interests of the child.
- Sections 4, 61DA, 61F, 64B, 64C, 64D, 65D, 65DAA, 65DAB, 65DAC, 65DAE, 65DA, 65G, 65H, 65K, 65L, 65LA, 65X, 65Y, 67K, 67T, 67ZBB, 67ZC, 68B, 68L, 68LA; Regulation 13 of the Family Law Regulations 1984
The parents of a child are encouraged under this Act: (a) to agree about matters concerning the child; and (b) to take responsibility for their parenting arrangements and for resolving parental conflict; and (c) to use the legal system as a last resort rather than a first resort; and (d) to minimise the possibility of present and future conflict by using or reaching an agreement; and (e) in reaching their agreement, to regard the best interests of the child as the paramount consideration. A parenting plan may be made by the parents of a child. To be a parenting plan, it must comply with section 63C of the Act.
- Sections 63B, 63C, 63D
A child maintenance order in relation to a child may be applied for by: either or both of the child‘s parents; the child; a grandparent of the child; or any other person concerned with the care, welfare or development of the child. In general, the parents of a child have the primary duty to maintain their child. Note: A child maintenance order cannot be made under this Act if an application could properly be made under the Child Support (Assessment) Act 1989.
- Sections 66B, 66C, 66D, 66E, 66F, 66G, 66H, 66J, 66K, 66L, 66M, 66N, 66P, 66T, 66V
The father of a child who is not married to the child‘s mother is liable to make a proper contribution towards: (a) the maintenance of the mother for the childbirth maintenance period in relation to the birth of the child; and (b) the mother‘s reasonable medical expenses in relation to the pregnancy and birth; and (c) if the mother dies and the death is as a result of the pregnancy or birth, the reasonable expenses of the mother‘s funeral; and (d) if the child is stillborn, or dies and the death is related to the birth, the reasonable expenses of the child‘s funeral. Note: There is 12 month time limit on claims by the mother or the mother’s legal representative. For the definition of ‘childbirth maintenance period’, refer to section 4 of the Act.
- Sections 4, 67B, 67C, 67D, 67F, 67G
If a child is born to a woman while she is married, the child is presumed to be a child of the woman and her husband. Note: Other parenting presumptions can apply and these are set out in the Act.
- Sections 69P, 69Q, 69R, 69S, 69T, 69U
If the parentage of a child is a question in issue in proceedings, the court may make an order requiring a parentage testing procedure be carried out on a person. The court may make the order on application of a party to the proceeding.
- Sections 69V, 69VA, 69W, 69X, 69XA, 69Y, 69Z, 69ZB, 69ZC; Regulation 21A of the Family Law Regulations 1984
Evidence of a representation made by a child about a matter that is relevant to the welfare of the child or another child, which would not otherwise be admissible as evidence because of the law against hearsay, may be admissible. If admitted, the court may give such weight to the evidence as it thinks fit.
- Section 69ZV
The instruments set out in sections 70Q, 90, 90L and 90WA of the Act are not subject to any State or Territory duty or charge. One example set out in subsection 70Q(1) is an eligible parenting plan that confers a benefit in relation to a child, to the extent to which it confers the benefit. One example set out in subsection 90(1) of the Act is a relevant maintenance agreement that confers a benefit upon a party or child of a marriage. One example set out in section 90L of the Act is a financial agreement (made under this Act). One example set out in section 90WA of the Act is a Part VIIAB financial agreement (made under this Act).
- Sections 4, 70Q, 90, 90L, 90WA
A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately. This rule is subject to a binding financial agreement pursuant to section 71A of the Act. The relevant factors that the court takes into account when there is a spousal maintenance claim are set out in section 75 of the Act.
- Sections 71A, 72, 74, 75, 77, 79F, 80, 82, 83, 86A, 86, 87, 88
In property settlement proceedings, the court may such order as it considers appropriate (in relation to alteration of property interests). Pursuant to subsection 79(2) of the Act, the court can only make an order that is just and equitable in the circumstances. For what the court make take into account when making an order (e.g. financial and other contributions), refer to subsection 79(4) of the Act. The pre-requirements to an order (conference, etc) are set out in subsection 79(9) of the Act. For further information on the orders the court can make (which are binding on third parties), refer to section 90AE of the Act. Section 90K includes the circumstances when a financial agreement may be set aside by the court.
- Sections 79, 79A, 79F, 80, 81, 85A, 90AE, 90AJ, 90AK, 90J, 90K, 90KA, 90MA, 90MB, 90ME, 90MO, 90MS, 90MT, 90MU, 90MUA, 90MZ; Regulation 15AA of the Family Law Regulations 2004
People who are contemplating entering a marriage with each other may make a financial agreement expressed to be made under section 90B of the Act. The matters which can be included in the agreement are set out in subsections 90B(2) and 90B(3) of the Act. For a financial agreement made during marriage, refer to section 90C of the Act. For a financial agreement made after a divorce order is made, refer to section 90D of the Act. For special requirements relating to spousal or child maintenance, refer to section 90E of the Act. It is relevant to note that section 90G of the Act contains the formalities for a binding financial agreement (prior to signing the parties was provided with independent legal advice, etc).
- Sections 90B, 90C, 90D, 90DA, 90DB, 90E, 90F, 90G, 90UA, 90MA, 90MB, 90ME, 90MH, 90MHA, 90MI, 90MJ, 90MK, 90ML, 90MLA, 90MN, 90MP, 90MQ, 90MZ
If certain applications are made under this Act and a claim is made that a de facto relationship existed between the applicant and another person, the court may declare that a de facto relationship existed, or never existed, between those 2 persons (and that there is a child of the de facto relationship, etc).
- Sections 90RD, 90RE, 90RF, 90RH
After the breakdown of a de facto relationship, a court may make such order as it considers proper for the maintenance of one of the parties to the de facto relationship. The court may also make an order altering interests in relation to property (where it is just and equitable to do so). The court may only make an order where section 90SB is satisfied. Note: Section 90SA provides an exception where there is a binding financial agreement. For maintenance applications, the court is to consider the matters set out in section 90SF of the Act. For property settlements, the court is to consider the matters set out in set out in subsection 90SM(4) of the Act. The court is not to proceed with a property settlement until the requirements of subsection 90SM(9) have been met (for example, the parties have attended a conference).
- Sections 4, 90SA, 90SB, 90SC, 90SD, 90SE, 90SF, 90SG, 90SH, 90SI, 90SJ, 90SK, 90SL, 90SM, 90SN, 90SS, 90ST, 90TA, 90MA, 90MB, 90ME, 90MO, 90MS, 90MT, 90MU, 90MUA, 90MZ; Regulation 15AB of the Family Law Regulations 2004
An eligible person (including spouse) may make an application to the trustee of an eligible superannuation plan for information about a superannuation interest of a member of the plan. The application is to be accompanied by the relevant declaration (in the prescribed form).
- Sections 90MB, 90MZB
In proceedings under this Act, the court shall proceed without undue formality and shall endeavour to ensure that the proceedings are not protracted.
- Section 97
The standard Rules of Court (made under this Act) may provide for evidence of any material matter to be given on affidavit at the hearing of: divorce or validity of marriage proceedings that are undefended at the time of hearing; and proceedings other than divorce or validity of marriage proceedings.
- Sections 4, 98
In proceedings under this Act, the parties to a marriage are competent and compellable to disclose communications made between them during the marriage.
- Section 100
A child must not be called as a witness in, or be present during, proceedings in the Family Court unless the court makes an order allowing the child to be called as a witness or to be present.
- Section 100B
The court shall excuse a witness from answering a question that it regards as offensive, scandalous, insulting, abusive or humiliating, unless the court is satisfied that it is essential in the interests of justice that the question be answered.
- Section 101
The court or a Judge may, for the purposes of any proceedings, direct or allow testimony to be given by video link, audio link or other appropriate means.
- Sections 102C, 102D, 102E, 102F, 102G, 102K
A court exercising jurisdiction in proceedings under this Act may via suppression order or non-publication order, prohibit or restrict the publication or other disclosure of: information tending to reveal the identity of any party to or witness in the proceedings; information that comprises evidence or information about evidence, etc. The grounds for making such orders are set out in section 102PF of the Act. In addition to the before-mentioned orders, there is a generic restriction on the publication of court proceedings under this Act pursuant to section 121 of the Act.
- Sections 102P, 102PD, 102PE, 102PF, 102PG, 102PI, 121
The Australian Institute of Family Studies is established. The functions of the director of the institute are provided in subsection 114B(2) of the Act. One of the functions of the director is to promote the identification of, and development of understanding of, the factors affecting marital and family stability in Australia.
- Section 114B
The regulations to this Act may fix or limit, or provide for the fixing or limiting of, the amounts that may be paid by relevant authorities to legal practitioners acting in a specified class of matters.
- Section 116C
If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just. For the matters the court will consider when making such orders, refer to section 117 of the Act. Note: An offer of settlement may be taken into account pursuant to section 117C of the Act.
- Sections 117, 117C
Either party to a marriage may bring proceedings in contract or in tort against the other party.
- Section 119
A person who is, under Part VIIIA of the Judiciary Act 1903, entitled to practise in any federal court as a barrister or solicitor, or as both, has the like right to practise in any State court exercising jurisdiction under this Act.
- Section 122
The Judges, or a majority of them, may make Rules of Court not inconsistent with this Act, providing for or in relation to the practice and procedure to be followed in the Family Court. The Family Law Rules 2004 sets out rules applicable to Family Law Act proceedings. The main purpose of the Family Law Rules 2004 is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case. It is relevant to note that rule 1.05 and Schedule 1 of the Family Law Rules 2004 contains pre-action procedures.
- Sections 4, 38, 123, 125; Regulations 4, 5 of the Family Law Regulations 1984; Rules 1.03, 1.04, 1.05, 1.06, 1.07, 1.08, 1.10, 1.15, 1.16, 1.17, 1.21, Schedule 1, Dictionary of the Family Law Rules 2004; Regulation 2.02, Schedule 1 of the Family Law (Fees) Regulation 2012
Before providing family dispute resolution under the Act, a family dispute resolution practitioner to whom a dispute is referred must be satisfied that: an assessment has been conducted of the parties to the dispute; and family dispute resolution is appropriate. In determining whether family dispute resolution is appropriate, the practitioner is to consider the matters listed in subregulation 25(2) of the Family Law (Family Dispute Resolution Practitioners) Regulations 2008.
- Regulation 25 of the Family Law (Family Dispute Resolution Practitioners) Regulations 2008
Before family dispute resolution is started, each party to the family dispute resolution must be given prescribed information by the family dispute resolution practitioner. Note: The practitioner must not provide legal advice to any of the parties unless the practitioner is also a legal practitioner.
- Regulations 28, 29, 30 of the Family Law (Family Dispute Resolution Practitioners) Regulation 2008
Reason for law
To ensure that married couples considering separation or divorce are informed about the services available to help with a possible reconciliation and that people affected, or likely to be affected, by separation or divorce are informed about the services available to help them adjust. (Section 12A)
To ensure that the best interests of children are met by ensuring that children have the benefit of both of their
parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child. (Section 60B)
To ensure that children receive a proper level of financial support from their parents. (Section 66B)
Family Relationships Online [Australian Government]
The Family Relationship Advice Line
Find a Family Relationship Centre
Find a Registered Family Dispute Resolution Provider
Brochures and Publications
- Convention on the Rights of the Child
- Convention on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations
- Convention on the Recovery Abroad of Maintenance
- Convention on the Civil Aspects of International Child Abduction
- Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption
- Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children
- Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters
- Agreement between the Government of Australia and the Government of New Zealand on Child and Spousal Maintenance
- Agreement between the Government of the United States of America and the Government of Australia for the enforcement of Maintenance (Support) Obligations
Sections 4, 31, 55A, 89 and 98A contain the phrase ‘ex nuptial’. This phrase may not be understood by members of the public.
Section 9 contains the phrase ‘decree nisi’. This phrase may not be understood by members of the public.
Section 38 contains the phrase ‘mutatis mutandis’. This phrase may not be understood by members of the public.
Sections 79A, 90SN, 106B and 121 contain the phrase ‘bona fide’. This phrase may not be understood by members of the public.
Section 96 contains the phrase ‘de novo’. This phrase may not be understood by members of the public.
Suggested further reading
- Children, Parents and the Courts: Legal Intervention in Family Life (2016)
- Family Law Principles – 2nd Edition (2015)
- The Appellate Jurisdiction of the Courts in Australia (2015)
- Splitsville: How to Separate, Stay out of Court & Stay Friends (2015)
- Dickey’s Family Law with Legislation (2015)
- Australian Family Law – 2nd Edition (2014)
- Australian Family Law Teaching Materials – 2nd Edition (2014)
- Australian Family Law: The Contemporary Context – 2nd Edition (2014)
- Australian Family Law in Context: Commentary and Materials – 6th Edition (2014)
- Focus Series: Family Law – 6th Edition (2014)
- Annotated Family Law Legislation – 2nd Edition (2014)
- Australian Master Family Law Guide – 6th Edition (2013)
- Family Law – 6th Edition (2013)
- Practising Family Law – 3rd Edition (2012)
- Family Law in Australia – 8th Edition (2012)
- Mediating with Families – 3rd Edition (2012)
- The Family Law Handbook – 3rd Edition (2012)
- Bargaining in the Shadow of the Law: The Case of Family Mediation (2011)
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