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Law Notes Family Law Notes

Introductory Notes

Updated Introductory Notes

Family Law Notes

Family Law

Approximately 97 pages

These notes are very comprehensive and come with a table of contents. It is important to have good notes for this subject as there are many exams. If you are doing the intensive course there is not much time to do the readings and these notes will save you stress and time!...

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Family Law

Introduction

  • 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.

History

  • Early 19th 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.

Australia’s constitution

  • 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.

Constitution cases

  • 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...

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