Family Law Act 1975
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The Australian Family Law Act 1975, sometimes referred to as the FLA by legal practitioners, is an Act of the Australian Parliament. It is one of four separate Acts that provide the framework for family law in Australia. It has 15 parts and is the main Australian legislation dealing with divorce, parenting arrangements between separated parents (whether married or not), property separation following a divorce, and financial maintenance involving children or divorced spouses.
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[edit] Purpose and Development of the Act
The Family Law Act was enacted in 1975 by the Australian government, led by then Prime Minister Gough Whitlam. One of the main innovations was the introduction of a "no fault" approach to divorce. Couples no longer needed to show grounds for divorce, but instead, merely had to show that their relationship had suffered an irreconcilable breakdown.
Due to the division of power between the Commonwealth and the Australian states under the Australian Constitution, it was not until later years that the Family Law Act dealt with matters relating to children. However, the states referred these powers to the Commonwealth and, until the 2006 amendments to the law, were all located under Chapter VII of the Act.
The Family Law Act has clearly, over time, been one of the most controversial pieces of Australian legislation and has been subject to numerous changes and amendments since its creation. A great number of amendments have reflected the political climate of the times: liberal Australian governments, such as those led by the Australian Labor Party, caused matters like the financial contribution of being a stay-at-home partner to become relevant in property matters; conservative governments, such as those led by the Liberal Party of Australia, have furthered the wishes of fathers' groups by extending the rights and responsibilities in negotiating parenting arrangements.
The 2006 amendments changed the way matters involving children are dealt with. These included:
- a progression towards compulsory mediation (before Court proceedings can be filed, in an effort to ensure matters do not reach litigation),
- greater examination of issues involving family violence, child abuse or neglect,
- more importance being placed on a child's family and social connections, and
- a presumption that parents have equal parental responsibility - NOT equal parenting time.
[edit] Divorce
The original 1975 Act revolutionised the divorce law of Australia (or, as termed in the law, "dissolution of marriage") by replacing the previous fault grounds with the single ground of irreconcilable breakdown, established by separation for a period of twelve months. It also reduced the time for a decree nisi for a divorce to take effect from three months to one month.
Amendments in 2004 abolished the provisions dealing with "decrees nisi" or "decrees absolute" and changed the term "dissolution of marriage" to "divorce". The twelve month separation requirements remained, subject to some exceptions, and the one month waiting period for a divorce order to take effect remained.
[edit] Creation of courts
The Family Law Act created the Family Court of Australia, with equal status to the Federal Court of Australia, as a court of record and with both original and appellate jurisdiction. Appeals from the Full Court of the Family Court of Australia (the appellate jurisdiction) are to the High Court of Australia.
In recent times, in a somewhat controversial move, the Australian government created the Federal Magistrates' Court of Australia as a second court to handle matters under the Family Law Act. Appeals from the Federal Magistrates' Court are to the Family Court of Australia, but its decisions are not considered inferior to the Family Court.
[edit] Powers of the Court
The Family Law Act gives the Court powers to make orders to restrain domestic violence, dispose of matrimonial property (including resources such as superannuation), parental responsibility, the living arrangements of children and financial maintenance for former spouses or children.
The Court retains its ability to hand down punitive sanctions in a number of areas where parties do not comply with Court orders. In the most extreme cases, as confirmed by the 2006 Amendments, this can include sentences of imprisonment (up to 12 months), fines, work orders, bonds and the like. In most cases, however, the most effective method of penalising a person is to award legal costs against them. In fact, the 2006 Amendments encourage this to be used as a sanction where people make improper or false allegations about someone else before the Court.
[edit] Other provisions
The default position in family law proceedings is that each party pays his or her own costs. The Act also abolished prison as a penalty for maintenance defaulters and imprisoned those held in contempt of the court.
