Australia has a federal system of government, whereby powers are distributed between the Commonwealth (Federal) Government and the States. This system was established in 1901 by the Australia Constitution, as set out in the Commonwealth of Australia Constitution Act 1900 (Cth).
Each of the Federal and State systems exercise their power through three branches of government:
The separation of these powers is one of the fundamental elements of the Australian legal system. Legislative power is the power of a parliament to make laws, executive power is the power to "implement, enforce and administer" the laws and judicial power is the power to make decisions about the application of the law to a particular dispute between parties.
The judicial arm of government is exercised through Australia’s court hierarchy, where the judiciary independently interpret and analyse the laws made by Parliament and develop what is known as the ‘common law’.
The Family Law Act 1975 (‘The FLA’) is the cornerstone of the Australian family law system. It is a Commonwealth act, establishing an area of federal law that is exercised by the following courts:
Previously, all family law matters were held before The Family Court. However, since the Federal Circuit Court was established in 1999, generally only more complex family disputes are now held before the Family Court.
The FLA gives the courts powers to make orders in relation to:
The original 1975 FLA revolutionised the divorce law of Australia by establishing a ‘no-fault divorce’ clause, removing the requirement for a couple to prove that one of the parties had caused the breakdown of the marriage. This clause was introduced to reduce the complex, stressful and hostile nature of divorce proceedings and to increase the chances of alternative dispute resolution.
Consequently, the only ground for divorce in Australia is the irretrievable breakdown of the relationship’, which must be demonstrated by showing the parties have separated for 12 months prior to filing for the divorce application. The FLA also reduced the time for a decree nisi for a divorce to take effect from three months to one month.
The FLA applies to all matters regarding the custody and welfare of children in Australia, regardless of the relationship between the parents. The relevant provisions are found in Part VII of the Act, which were amended significantly in 1995 and again in 2006.
Children's matters are determined on the basis of who the child will 'live with' and 'spend time with' (terms which were formerly labelled 'residence' and 'contact' respectively). Although the term custody is often used to describe where children live, the concept was abolished in 1995 with the Family Law Reform Act. The concept of custody gave much wider decision making powers to the parent with whom children lived, than either the concept of 'residence' or 'live with'. Since 1995 both parents legally have the same (but not shared) parental responsibility for children, regardless of where and with whom the children live, until and unless a court makes a different order.
‘Parental responsibility' is the term used to describe the ability to make decisions that affect the day-to-day and long term care and welfare of the child, and can include things such as what school they attend and what their name is.
The FLA does not specify that the person with whom the child is to reside or spend time with must necessarily be their natural parent, and provision is made for anyone “concerned with the care, welfare or development of the child” to apply to the Court for orders. In all proceedings involving children, the paramount consideration is the best interests of the child, and the Court will not make an order that is contrary to these interests.
If there is a dispute about parenting matters and the case is placed before a court, then the Court must apply a presumption that it is in the best interests of children that their parents have equal shared parental responsibility for the children ( The Family Law Act section 61DA). In practical terms, this means parents must consult one another about major decisions affecting the care of children (but not day to day decisions), whereas without that order parents can make decisions together or without consulting each other. The presumption does not apply in circumstances of domestic violence or where there has been any abuse of a child, a parent or any family member living with the child.
There is no presumption of equal time with the child, however, if the presumption of equal shared parental responsibility has not been mitigated, the Court must consider allocating it. If the decision is made to not allocate equal time in such circumstances, then the Court is required to consider allocating 'substantial and significant' time instead ( The Family Law Act Sec 65DAA).
Substantial and significant time includes weekends, weekdays, special days and holidays, and in practical terms usually means more than every second weekend.
Determining who the child lives with and spends time with (and how much time is spent) is decided by the Court with reference to the best interests principle under section The Family Law Act Sec 60CA. The child's 'best interests' is determined with reference to the primary and secondary considerations found under section 60CC, and it is by reference to these factors that argument proceeds in the Federal Magistrates and Family Courts. Full custody will usually be awarded to the parent who is better able to demonstrate that they can meet the child's best interests.
There have been some important changes to the FLA concerning domestic couples (de facto couples).
A person is generally regarded as being in a de facto relationship after living together with their partner for two years. Previously, the Act applied only to married couples. However, as of 1 March 2009 the Act also applies to domestic couples. The definition of 'domestic couples' includes same-sex couples.
These changes introduced a new system for the distribution of property, as well as the right to spousal maintenance, following the breakdown of de facto relationships.
Although these changes came into effect on 1 March 2009, not all de facto relationship disputes fall within the new law. Depending on the date of separation, the following legislation will apply if the separation occurred:
These changes to the Act significantly reduce the legal distinction between domestic relationships and marriage in terms of division of assets following a separation.
Part VIII of the FLA is concerned with the distribution of property after a marriage breakdown, and the Court has broad power under section 79 to order a property settlement between parties based on a number of factors regarding 'contribution' and 'future needs'.
A property claim must be made within 12 months of a divorce becoming final or within two years of separation for de-facto couples. Unlike property proceedings in various other countries, the two proceedings usually occur separately. However, it is recommended that a property settlement is brought first or at the same time as applying for a divorce.