Family

Family law in Australia governs matters related to family relationships, particularly those involving marriage, divorce, child custody and property division. The main legislative framework is the Family Law Act 1975 which outlines the legal processes and principles that apply to family issues and the Federal Circuit and Family Court of Australia handles most family law cases.

The Family Law Act (FLA) sets out law that the courts must apply when determining family law disputes including parenting disputes about where children will live, who they will spend time with and who holds parental responsibility for them.

Marriages

Australia recognises marriages entered into overseas as well as divorces obtained overseas if they were affected in accordance with the laws of that country. Australian marriage and “matrimonial causes” are recognised by sections 51(xxi) and (xxii) of the Constitution of Australia and internationally by marriage law and conventions such as the Hague Convention on Marriages (1978).

Divorces

Australia’s laws on divorce and other legal family matters were overhauled in 1975 with the enactment of the Family Law Act 1975 which established no-fault divorce in Australia. Since 1975, the only ground for divorce has been irretrievable breakdown of marriage, evidenced by a twelve-month separation. However, a residual “fault” element remains in relation to child custody and property settlement issues. The federal Family Law Act 1975 covers divorce, children’s orders, property division, spousal maintenance and related matters.

Annulment

Under the Family Law Act 1975, a decree of nullity can be made if a marriage is void. Annulment does not involve termination of a marriage, but rather a declaration the purported marriage is in-fact void.
What constitutes a void marriage is determined by section 23 of the Marriage Act 1961. The distinction that existed before 1975 between void and voidable marriages no longer exists. In addition, the 1975 Act also abolished the legal concept of non-consummation of marriage as a ground for annulment so that a divorce application would need to be made.

Family Law in Western Australia (WA)

Family law in Western Australia applies through both state and federal legislation and is administered by the Family Court of Western Australia. WA is unique because it is the only state that has not fully transferred family law jurisdiction to the federal court system. This means WA retains its own family court that operates under a combination of the Family Law Act 1975 (Cth) for marriage and divorce cases and the Family Court Act 1997 (WA) for de facto relationships and other state matters.
The Family Court of WA also encourages dispute resolution and mediation to reduce court time and facilitate agreements outside the courtroom. The court’s unique mix of state and federal powers provides tailored responses to family law issues, recognizing the state’s distinctive legislative stance.

Family Law Disputes

There are two Commonwealth Courts which deal with matters under the FLA. These are the Family Court of Australia (FCA) and the Federal Circuit Court of Australia (FCC). These courts are often collectively referred to as the family law courts. The FCC deals with the majority of family law disputes
The FCA only handles disputes that are of a particularly complex nature, or which involve allegations of child sexual abuse or significant physical abuse.

Principles and Objectives of the Family Law Act

Part VII (7) of the FLA relates to children. It deals with the concept of parental responsibility and contains provisions concerning parenting orders.
Part VII also details other types of orders and injunctions relating to children including the enforcement of orders affecting children.
Section 60CA of the FLA provides that in making decisions about parenting orders, the Court’s paramount consideration must be the best interests of the child.
Section 60B (1) sets out the objectives for how the best interests of children are met.
Section 60B (2) sets out the principles underlying these objects. These principles apply except where it would be contrary to a child’s best interests.
An Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture.