#7211 - Introductory - Family Law

When we are talking about family law we are talking about domestic relationships.

Common reasons for disputes: money, children (parenting disputes), violence and protection from violence.

There is not just one statute to govern all family law disputes. The Family Law Act 1975 is the principal piece of Federal legislation (we do not need regulations and rules for our purposes).

Family Court Australia is the main federal court in Australia.

Early 19^th century UK: Family law was not administered by state courts. It was dealt with in church courts and judges were trained in cannon law. A church law could decree an order of nullity (like a divorce). This meant you could live apart without sin. It was a system that depended on proof of fault. You could get a divorce by private act of parliament – the theory was that parliament could do what it wanted because it was sovereign, even when the church courts did not accept divorce.

Matrimonial Causes Act 1857 (UK), was important because for the first time jurisdiction was taken away from church courts and given to state courts. Church courts were limited to internal matters. A new remedy was given – judicial divorce (rather than having to get one from parliament). But the same fault based doctrine continued – if you are sick of each other this is irrelevant. There had to be an innocent party and guilty party. Adultery was an initial ground but then other misbehaviour types like desertion or cruelty etc were accepted. It was fault based remedies.

Married Women’s Property Act 1870. Overturned but a system of separate property so that when she remarried she could keep her property. Marriage itself did not have any automatic property rights.

Pre 1960s in Australia, see s 51 of the Constitution. There were powers for marriage and divorce but these powers were not used straight away after federation. Thus there was state family law till the 1960s. Each state had a marriage act and a matrimonial causes act. The Marriage Act would tell you about who could get married and the ceremony aspects. Matrimonial Causes Act was about divorce but these grounds differed between states.

The Federal government decided to get involved using its’ powers in the constitution. A package of legislation is introduced: Marriage Act 1961 and Matrimonial Causes Act 1959. This is now Cth law.

The Marriage Act 1961 has not really changed to this day. But the Matrimonial Causes Act 1959 made divorce and related issues a federal concern, at this stage there was no intent to set up a special federal court to apply this law and so they vested federal jurisdiction to state supreme courts, it was still predominantly fault based procedure and there were 14 grounds and almost all of them required spouse misbehaviour like desertion, adultery or violence (the couple of exceptions to fault based caused major arguments and led to a parliament conscience vote – where they both wanted to separate but only after 5 years of separation or one spouse became mentally ill), it didn’t just deal with divorce or nullity (for void marriages) but also money, property, kids and personal protection (but there was a pre-condition that the claim had to be attached to a claim for principal relief like divorce or nullity).

This was replaced by the Family Law Act 1975 (FLA):

• A system of divorce was introduced. It was now no fault divorce. The ground of divorce is irretrievable break down of marriage. Need 12 months of separation for this to apply.

• An emphasis on counsel and mediation. Counselling bodies were set up to do this.

• A specialised court. Family Court of Australia.

• In 1976 when the Act first passed they wanted to simplify and humanise proceedings. Court must be closed and no wigs and gowns and lots of legal aid. Use of friendly procedures.

• In terms of legislation coverage, FLA was radical in constitutional terms. It wanted to cover as much of family law as it could. It covered kids, money, property and personal protection without any other pre-conditions. These were separate and independent federal concerns and part of the Family Court jurisdiction. It does not matter if people are not divorced or waiting for it. The Court will deal with the custody dispute separately etc. This led to immediate constitutional challenge.

Fed government had to rely on the single word ‘marriage’ at section 51 (xxi) and ‘divorce and matrimonial causes’ in (xxii) of the Constitution. Challenges were made to the scope of Federal jurisdiction.

Russell v Russell

• The term matrimonial cause which is used a lot. It is defined in s 4(1) of the Constitution.

• Mason J was the basis of the majority view. Steven J agreed with him. 2 judges dissented. Jacobs J agreed with Mason J but took an even wider view.

• Mason J said there are really 2 issues to think about.

  • A question of constitutional interpretation. S 51 (xxi)- marriage- and (xxii) – divorce and matrimony causes and kids. These are a list of things the Federal government can pass laws on. One suggested interpretation was when you interpret s 51 paragraphs you do so in a way not to allow the paragraphs to overlap (to prevent duplication). Mason J did not agree with this because it narrowed the powers of the constitution. Each head of power should be given fair and liberal interpretation and it does not matter if there is overlapping but what you don’t do is read one head of power down because of the threat of overlapping.

  • A question of (xxi). What is a law about ‘marriage’? This paragraph is just one word. You would think it just deals with how to get married. A law about the celebration of marriage is obviously about marriage but can you go further? You can use the marriage power to also define rights, duties and obligations arising out of the marriage relationship between spouses (husband or a wife). You use it to create rights, duties and obligations as between married people and their children. This would have to do with maintenance, dividing up property, child care arrangements. You do not only declare these rights and obligations but enforce them. Thus the marriage power is the celebration of marriage and the bodies of law of the rights of spouses with each other and children and a means of enforcing these rights with disputes arise. Mason J concludes that the marriage power may be exercised by providing enforcement that are separate an independent from nullity and divorce. The Cth’s objective and view of the marriage power to achieve this is ok. But then the judgment becomes cryptic.

• The court then looks at the definition of ‘matrimonial cause’ and found problems in the Act’s drafting on paper. The court said that these paragraphs in s 4(1) are too widely drafted because there is no limitation on who can bring an action or pursue an action. It has not been limited to the parties of a marriage. The HC said what if a spouse was indebted to a creditor and the bank began enforcement proceedings, but where is the matrimonial character of that dispute? There needs to be some limitation proceedings. The High Court can read down statutes, under the Acts Interpretation Act s 15A, rather than making the entire Act void. This was done. It was found if the proceedings are between the parties to the marriage then these paragraphs will be valid federal laws.

• Yet there were problems not mentioned in the judgment at all. This can be seen on page 26. If parties want to divide property there is an issue – paragraph c of the matrimonial cause definition is discussed – they seems to say there is a double problem because the proceedings must be read down to parties in the marriage itself but it is too hard to read down property and they seem to suggest that property itself must have some nexus to marriage and there is nothing of the sort in the act. They don’t read down the property part but read it down to the extent of (xxii) so that only if they are going for divorce would they be able to divide property. This is unexplained and was a nuisance for litigators because if you have a property dispute you need to wait 12 months until you can divide property when you can legally file for divorce (you would have to look for a state remedy etc). This was resolved however because the Family Law Act could be applied to for an injunction to restrain disposal of property for the 12 month period but this is a discretionary remedy and not an automatic remedy. In 1983 this was resolved.

• It took even longer to fix the categories of kids under the act. There was a disagreement with the broad definition of the children. They found that only kids of the marriage in the narrow sense come under the FLA. Naturally and formally adopted kids came under it but not other children in the household when the two separated. This caused litigants problems because if the spouses were in a household with various kids it was only the kids of the marriage in the narrow sense that could be dealt with under the FLA and the others came under state law.

See the handout of the current up to date version on page two of the definition of ‘matrimonial cause’ under s 4. S 4(ca)(i) says proceedings ‘arising out of the marital relationship’ to try and bring property disputes under (xxi) and overcome the 12 month gap. This paragraph was challenged in Fisher (1986) and this was found to be fine. It was found to be a valid law. The first problem from Russel was resolved.

The problem involving children took longer to resolve (page 39). The Cth can pass laws about powers...