TOPIC 1: HISTORICAL BACKGROUND AND CONSTITUTIONAL FACTORS
Monahan/Young, Chapters 1 – 3
Dickey, Chapters 1 – 6
Parkinson and Behrens, Part A Chapters 1 – 2, Part B Chapters 3 – 8
Cases marked with an * are particularly significant
Issues:
In this topic we consider the historical background to our current family laws, the different federal
and state laws which are applicable and the ambit of the current Family Law Act 1975 (Cth),
including alternative dispute resolution processes.
Desired Outcomes:
An appreciation of the role played by ecclesiastical law in the formation of our current family laws
and the constitutional restraints imposed on the powers of the Family Court of Australia by the
Australian Constitution. A general understanding of the Family Law Act 1975 (Cth) and the
jurisdictional factors relevant to the litigation of family law disputes and the .
1. AN HISTORICAL INTRODUCTION
UN International Covenant on Civil and Political Rights
adopted by the Human Rights and Equal Opportunities Commission Act 1986 Cth:
Article 23:
 The family is the natural and fundamental group unit of society and is entitled to protection by
society and the State.
 The right of men and woman of marriageable age to marry and to found a family shall be
recognised.
 No marriage shall be entered into without the free and full consent of the intending spouses.
 States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and
responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of
dissolution, provision shall be made for the necessary protection of any children.
Article 24:
 Every child shall have, without any discrimination as to race, colour, sex, language, national or social
origin, property or birth, the right to such measures of protection as are required by his [sic] status as
a minor, on the part of his family, society and the State.
 Every child shall be registered immediately after birth and shall have a name.
 Every child has the right to acquire a nationality.
Royal Commission on Human Relationships 1977-1978:
...Of all our institutions, the family is the most influential in terms of human relationships. It is
universal, being both found in both sophisticated and primitive societies as far back as our knowledge
takes it. Though it has had and will have many different forms, it is unlikely that it will ever disappear,
nor would we wish it to [see Vol 4 at p 1].
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Dr. Peter McDonald (ed), Settling Up … Prentice Hall of Australia, Sydney, 1986:
… Joint economic endeavour has always been one of the most important functions of the family. The
family grouping has provided the opportunity for specialisation and economies of scale; it has
provided the required labour and the support necessary for its dependent members (see p 308).
(a) Ecclesiastical Law
Council of Trent 1545 (Roman Catholic Church)
Clandestine Marriages Act 1753 (Lord Hardwicke’s Act) (Eng)/Registration Act 1837 (Eng)
Four principal forms of matrimonial relief (or decrees):
 decree of nullity of marriage
 decree of divorce "a mensa et thoro"
 decree of restitution of conjugal rights
 decree for jactitation of marriage
(b) Early Australian Law
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Up to 1834 marriage only in Anglican Church – thereafter 1834 (Roman Catholic and Presbyterian);
1839 (Methodist); 1840 (Baptist and Congregationalist) etc - By 1855, all these statutes consolidated
into one NSW Marriage Act
NSW adopted the Matrimonial Causes Act in 1873.
(2)
FEDERAL AND STATE POWERS IN FAMILY LAW
(a) Federal Powers
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Refer ss 51 (xxi), 51 (xxii) Australian Constitution
Section 51 the Australian Constitution:
… The Parliament shall ... have power to make laws for the peace, order, and good government of
the Commonwealth with respect to …
(xxi) Marriage;
(xxii) Divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and
guardianship of infants;
Family Law Act 1975 (Cth) (FLA) assent 12 June 1975, commences 5 January 1976
Constitutional challenge: Russell/Farrelly (1976)
Amendments since:
1976
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that proceedings for maintenance, custody, property and injunctions had generally to be
between ‘the parties to a marriage’
that ‘children’ had to be the natural or adopted children of both the spouses concerned
that all property proceedings had to be in relation to concurrent, pending or completed
proceedings for dissolution of marriage or one of the other forms of principal relief available
under the Act
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widening of the classes of person who can commence proceedings
children to include ‘ordinary members of the household’
inter-spousal property proceedings at any time
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New Part VII - children
Revised Part VIII - property
1983
1987
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1996
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New Part VII - children
Primary Dispute Resolution
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New Part VII Div 13A enforcement
New Part VIIIA binding financial agreements
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New Part VIIIB: Superannuation splitting
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Non-registration of parenting plans
New Part VIIIAA: Orders against third parties
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Bankruptcy
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‘Shared Parenting’
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Three major law reforms introduced by the Rudd government to remove discrimination
against same-sex couples and children of same-sex relationships
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Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth)
received Royal Assent on 21 November 2008
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Same-Sex Relationships (Equal Treatment in Commonwealth Laws – General Reform) Act
2008 (Cth) received Royal Assent on 9 December 2008
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Same-Sex Relationships (Equal Treatment in Commonwealth Laws – Superannuation) Act
2008 (Cth) received Royal Assent on 9 December 2008
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A consolidation of the Family Court and the Federal Magistrates Court?
2000
2001
2003
2005
2006
2008
2009
A-G (Vic) v The Commonwealth (1962) 107 CLR 529
Lansell v Lansell (1964) 110 CLR 353
*Russell v Russell (1976) 134 CLR 495
R v Lambert; ex parte Plummer (1980) 146 CLR 447
Cormick v Salmon (1984) 156 CLR 170
(b) State and Territory Powers
Current family law related NSW legislation now includes (inter alia):
 Adoption Act 2000
 Children and Young Persons (Care and Protection) Act 1998
 Status of Children Act 1996
 Crimes (Domestic and Personal Violence) Act 2007
 Property (Relationships) Act 1984
 Guardianship Act 1987
 Family Provision Act 1982
 Minors (Property and Contracts) Act 1970
 Births, Deaths and Marriages Registration Act 1995
 Succession Act 2006/Wills, Probate and Administration Act 1898
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(c) State Referral of Powers over Children:
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Commonwealth Powers (Family Law - Children) Act 1986 (NSW)
1986-90 (except WA)
s 51 (xxxvii) Constitution
also note impact of s109 Constitution
note Schedule 3A of the Family Law Amendment (De Facto Financial Matters and Other Measures)
Act 2008 (Cth) which commenced on 21 November 2008 - extends definition of ‘’child’’ in s 4 of
the FLA & the interpretation of the FLA to certain children, especially children born a s a result of
artificial conception procedures
(d) State Referral of Powers over De Facto Financial Matters:
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Commonwealth Powers (De Facto Relationships Act) 2003 (NSW) commenced 22 September
2008
Victoria, Queensland, South Australia and Tasmania have also referred
Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth)
(e) Cross-Vesting and Accrued jurisdiction: Jurisdiction of Courts (Cross-Vesting) Act
1987 (Cth) (NSW) and Federal Courts (State Jurisdiction) Act 1999 (NSW)
There are three grounds for the transfer of proceedings from one court to another:
 where there is a related proceeding in the other court
 where it is more appropriate that the other court determine the issue
 where it is otherwise in the interests of justice that the proceedings be determined by that other
court.
Cross-Vesting: 3 GROUNDS for the transfer of proceedings from one court to another:
i.
where there is a related proceeding in the other court
ii.
where it is more appropriate that the other court determine the issue
iii. where ... interests of justice that the proceedings be ... that the other court
Practice Direction No. 90/3 states:
 The reasons of the Full Bench in Chapman v Jansen were handed down on 30 April 1990.
 Applications which, but for cross-vesting legislation fall outside the Family Court's jurisdiction, should
not be filed unless there is a related proceeding within the court's jurisdiction.
 Thus, property applications between de facto spouses will not normally be dealt with by the Family
Court unless there is a related matter in issue between the parties which falls ordinarily within the
jurisdiction of this court.
 In the event of such an application being made in this court, the matter is likely to be transferred to
the Supreme Court.
Cross-vesting complimentary legislation:
 1987 (Cth, NSW, VIC, SA, TAS, WA, NT)
 1990 (QLD)
 1993 (ACT)
High Court Challenge:
 Gould v Brown (1998): 3:3 decision/it survives!
 Re Wakim; Ex Parte McNally (1999): 6: 1 decision … it dies (well partly anyway)!
 Note effect of Federal Courts (State Jurisdiction) Act 1999
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*Chapman and Jansen [1990] FLC 92-139
P v P (1994) 181 CLR 583
*Gould v Brown (1998) 193 CLR 346
*Re Wakim; Ex parte McNally (1999) 198 CLR 511
Re Macks; Ex parte Saint (2000) 205 CLR 158
*Warby and Warby [2002] FLC 93-091
*Minister for Immigration & Multicultural & Indigenous Affairs and B (No.3) (2004) FLC 93-174
(3) THE FAMILY LAW ACT 1975 (FLA)
The main parts of the FLA include:
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II: non-court based family services – family counselling, family dispute resolution and arbitration
IIIA: obligations to inform people about non-court based family services
IIIB: Court’s powers in relation to court and non-court based family services
IV: the court
V: jurisdiction (not children)
VI: divorce/nullity
VII: children (and jurisdiction)
VIII: property orders and spousal maintenance
VIIIA: financial agreements
VIIIB: superannuation
VIIIAA: orders against 3rd parties
XIIIAA: international agreements
XIIIA: sanctions for breach
XIIIB: contempt of court
XIV: injunctions
(a) Family Court(s) of Australia
 Family Court of Australia (FCA)
 Federal Magistrates Court (FMC)
 State Courts (Family Court of WA only)
 Local Courts (courts of summary jurisdiction)
The hierarchy of judges is as follows:
• Chief Judge
• Deputy Chief Judge
• Judge Administrators and Judges of the Appeal Division
• Senior Judges
• Judges
Division 3 of Part IV deals with judges.
The officers of the Court are as follows:
• Chief Executive Officer (general administrator)
• Registrars (principal administrator for each registry)
• Deputy Registrars (either 'judicial registrars' or 'registrars' - their powers differ)
• Marshal (principal enforcement officer)
• Deputy Marshals
• Director of Court Counselling (each registry)
• Court Counsellors (psychologists)
• Court Officers and Judges Associates
(b) Registrars and Judicial Registrars
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refer ss 26A, 37A (and Family Law Rules)
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Registrars, like Registrars in other courts, deal with procedural matters and consent orders. Judicial
Registrars, introduced in 1988 by s 26A, have a more formal judicial function hearing some contested
matters, such as defended divorce proceedings and child support departure applications. Any decision
of a judicial registrar may be reviewed by a judge by way of a hearing de novo.
*Harris v Caladine [1991] FLC 92-217
(ba) Federal Magistrates Court (FMC)
 refer ss 39(1A), 39(5AA), 39(5A), 45A, 69H and Federal Magistrates Act 1999 (Cth))
 not a superior court but is still a court of record and a court of law and equity
 invested with jurisdiction under FLA and Child Support legislation
 wide jurisdiction to determine both divorce and ancillary relief (and Hague Convention) matters
(c) Courts of Summary Jurisdiction
 refer to ss 39(2), 39(6) FLA . There are some limits though:
 the Local Court can only determine ancillary relief (not principal relief) ss 39(6), 44A;
 s 46 limits ancillary relief in property matters less than $20,000; and
 s 69N(2) requires both parties to consent to a children’s matter being determined by a Local Court.
(d) Principle to be applied by the Court
Section 43 of the FLA states:
The Family Court shall, in the exercise of its jurisdiction under this Act....have regard to:
(a) the need to preserve and protect the institution of marriage as the union of a man and a woman
to the exclusion of all others voluntarily entered into for life;
(b) the need to give the widest possible protection and assistance to the family as the natural and
fundamental group unit in our society, particularly while it is responsible for the care and education of
dependant children;
(c) the need to protect the rights of children and to promote their welfare;
(ca) [since June 1996] the need to ensure safety from family violence; and
(d) the means available for assisting parties to a marriage to consider reconciliation or the
improvement of their relationship to each other and their children.
(e) Matrimonial Cause
Refer to s 4(1) FLA. In short it includes applications for:
 divorce and nullity
 declarations re marriage
 spousal maintenance
 property settlement
 approval of maintenance’ agreements
 injunctions
 enforcement of maintenance agreement
 enforcement of overseas decrees
 ‘any other proceedings’ including enforcement
 financial agreement proceedings
(f) Jurisdiction in Other Matters (Matrimonial Causes)
Refer to Part V of the FLA
Proceedings for divorce under s 39(3) must involve a party being (at the date of filing):
 an Australian citizen
 an Australian 'ordinarily resident'
 or domiciled in Australia - note Domicile Act 1982 (Cth).
For all other proceedings s 39(4) requires that either party be (at the date of filing):
 an Australian citizen
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an Australian 'ordinarily resident'
or merely present in Australia.
(g) Jurisdiction in Children's Matters
Refer to Part VII Division No. 12 Subdivision C ss 69G
 Family Court of Australia (in all States and Territories except WA)
 Family Court of Western Australia
 Supreme Court of the Northern Territory
 Courts of summary jurisdiction (eg NSW Local Courts) (by consent)
There must also be a ‘connection’ to Australia: see s 69E.
(h) Non-Court Based Family Services
Introduction
Refer to:
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Part II:
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Division 2 - family counselling
Division 3 – family dispute resolution
Division 4 – arbitration
Part IIIA:Obligations to inform people about non-court based family services and the court’s
processes and services and note obligations on legal practitioners (s12E)
Part IIIB: Court’s powers in relation to court and non-court based family services
ss 60I, 60J and Part 5 of Family Law Regulations, 1984
Family Dispute Resolution (FDR)
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FDR introduced in 3 phases:
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Phase 1 – from 1 July 2006 pre-action procedures for all parenting cases
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Phase 2 – from 1 July 2007 – s 60I Certificate to be filed with all fresh applications for parenting
orders
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Phase 3 – from 1 July 2008 – s60I certificate to be filed with all applications for parenting orders
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Note – for phases 2 & 3 – requirement to attempt to resolve dispute by FDR BEFORE applying for
a parenting order: s 60I(7)
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4 kinds of certificates can be issued – s60I(8) – kind issued may be taken into account by court in
considering referral to FDR ( s 13C0 and in determining issue of costs ( s 117)
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Note limited exemptions from requirement for pre-filing FDR – s60I(9)
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If family violence or abuse exception under s 60I(7) applies, court must not hear application
unless applicant has received information about services and options available in the
circumstances : s 60J
Arbitration
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An object of Part IIIB – to encourage arbitration to resolve matters: s 13A(i)(C)
2 types of arbitration under FLA:
s10L(2)(a) - s13E arbitration – court-annexed arbitration of Part VIII proceedings:
spousal maintenance (s74) and variation (s83)
declarations of interests in property (s78)
alteration of property interests (s79)
setting aside property orders (s79A)
ante-nuptial/post/nuptial settlements (s85A)
s10L(2)(b) - private arbitration for “relevant property or financial arbitration”:
PartVIII
Part VIIIA – financial agreements
Part VIIIB – superannuation issues
s 106A proceedings
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s 44(3) leave to proceed out of time??
Parenting issues and child support issues cannot be arbitrated
Referral to arbitration only by consent:s13E(1)
Can register awards (s 13H) and registered award has effect as though court decree (s13H(2))
Awards can be reviewed on questions of law: s 13J
Award may be set aside ( s 13K) in prescribed circumstances - for fraud/non-disclosure; void,
voidable, unenforceable; impracticability; bias, lack of procedural fairness
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