Notes on Family Law

Resource Description

OPTION: FAMILY LAW
Themes and Challenges
✔ The role of the law in encouraging cooperaton and resolving confict in regard to family
✔ Issues of compliance and non-compliance
✔ Changes to family law as a response to changing values in the community
✔ The role of law reform in achieving just outcomes for family members and society
✔ The efectveness of legal and non-legal responses in achieving just outcomes for family members.
1. The Nature of Family Law
THE CONCEPT OF FAMILY LAW
o Many diferent family arrangements within modern Australian society � shape society’s concept of what a family
is and what functons it should perform
o Society places legal obligatons upon people in diferent family arrangements → all members of the family have
legal protecton
o Wide ranging area of law government behaviours in the context of family:
▪ Includes the rights and responsibilites regarding Children
▪ Dispositon of property when a marriage breaks down
▪ Ensure people in fnancially secure and children are cared for
Definition of Familf
o Australian Bureau of Statistits (ABS):
▪ “two or more persons … who are related by blood, marriage (registered or de facto), adopton, step or
fostering and who are usually resident in the same household “
o Defniton indicates the many diferent types of families that exist
o At least one person in the family has to be 15 years or older
o A household may contain one or more families
o Children in all these types of families can be:
▪ Naturally conceived children of both adults in family, Related to only one of the adult couple they live
with, The product of artfcial reproductve technologies, Foster children , Adopted and Step children
o Section 43 b) of the Family Law Act 1975 defniton:
▪ ‘Natural and fundamental group unit of society, partcularly while it is responsible for the case and
educaton of dependant children;
o Main Functon of families
▪ Care and Protection – Emotonal, Financial, Physical, Psychological
o Diversity in types of Families
▪ It use to mainly be nuclear
▪ Now its is; blended, de factor,
Legislation
o Constitttion s51 bxxi
▪ Gives federal govt power to make laws for marriage and divorce -> IT IS A FEDERAL ISSUE
o Marriage Act 1961 bCth
▪ Established legal requirements of valid marriage
o Family Law Act 1975 bCth
▪ Legal dutes and obligatons of marriage
▪ No fault including divorce � show there is a irretrievable breakdown (no need to prove the 13 elements)
▪ Principle aim of the act was to reform the law governing the dissoluton of a marriage
o Property bRelationships Act 1984 bNSW
▪ Covers de facto relatonships
o Family Law Amendment bDe Facto Financial Maters and Other Meastres Act 2008 bCth
▪ Since 2008, state government have referred their powers to the Cth re de facto relatonships to make is
simpler
▪ Made the things under the Property bRelationship Act 1984 bNSW fall under federal law � cases can be
heard in the family court
De- Fattor Relationshiis
o In the past, only state parliaments could pass legislaton about de facto relatonships.
o However, most state governments have now referred their powers to the Commonwealth with respect to both
parentng disputes and property disputes, in the contexts of a marriage and a de facto relatonship.
o After the passage of the Family Law Amendment bDe Facto Financial Maters and Other Meastres Act 2008
bCth
● Questons regarding property division and de facto spousal maintenance are now determined under the
Family Law Act 1975 bCth .