Zusammenfassung der Ressource
Family Law
- Marriage
- Hyde v Hyde And Woodmansee (1866)
Developed original marriage definition
- Marriage Act 1961 (Cth) s5(1)
'union of a man and a woman to
the exclusion of all others,
voluntarily entered into for life'
- Relationships Act 2003 (Tas)
allows same sex couples to
register union
- Four Elements
- 1. Man + Woman
Anmerkungen:
- - Union of a man & woman
- Deciding gender of individual- Corbett v Corbett (otherwise Ashley) 1971 sex of an individual is based on chromosomal, gonadal + genital factors
- 3 Sexual variations 1. Transsexuals (psychological) 2. Transvestites (psychological) 3. Hermaphrodite (biological)
- Gender at Date of Marriage- In Re Kevin (Validity of Marriage of Transsexuals) 2001 FLC
- 2. To the Exclusion of
all Others
Anmerkungen:
- - Illegal to be in a polygamous relationship in Australia
- Bigamy- criminal offence Marriage Act s94 + Criminal Code (QLD) s360
*Unless continually absent for 7yrs + knew them to be dead
- 3. Voluntarily
Entered Into For
Life
Anmerkungen:
- s23B Marriage Act 1961 (Cth) requires genuine consent from both parties
Void if obtained by-
a. Duress- threatning
b. Fraud- untruth so serious marriage can't exist
c. Mistake- can't truly consent to marraiage
d. Mentally incapable of understanding nature + effect- mental illness or senile
- 4. For Life
Anmerkungen:
- Able to marry if-
a. Marriageable Age- s11 (18yrs)
b. Not Already Married
c. Prohibited Relationship- consanguity (relationship with family) is illegal
d. Genuine Consent- 'voluntary entered into'
- Dissolution of Marriage
- 1. Annulment
Anmerkungen:
- - Marriage is made void
- Based upon legal impediments 'declarations the marriage was invalid'
- e.g. impediment of consangunity + infinity
- 2. Divorce
- Matrimonial Causes Act (1857)
Anmerkungen:
- - Passed in England to enable men + women to apply for divorce
- Prior to this were only obtained through a special Act of Parliament (very expensive + long approval process)
- Matrimonial Causes Act 1959 (Cth)
Fault Divorce
Anmerkungen:
- Fault Divorce-
Adultery
Separated or lived apart for 5yrs
Habitual cruelty, drunkenness, rape
Party in prison (3yrs of more)
Willful + persistent refusal from consummation
- Family Law Act 1975 (Cth)
No Fault Divorce
Anmerkungen:
- - Abolished fault as a ground for divorce
- Created a 'no fault divorce system'
- Only 1 Ground 'irretrievable breakdown of marriage' no evidence required
- S48 + S49 FLA- Dissolution + Nullity of marriage
1yr required to obtain a divorce+ can be living together but must be 'separate + apart'
- Irretrievable Breakdown
Anmerkungen:
- - s 48 only ground for divorce
- 12mths separation is the only evidence required (dates)
- Must satisfy 'no reasonable likelihood of cohabitation being resumed
- Lived Separate + Apart
Anmerkungen:
- - Requirement that partners lived separately + apart during 12mths
- Not necessary to be in different houses - yet must prove were living separately
- Resumption of
Cohabitation
Anmerkungen:
- - s 50 May resume living together for up to 3mths once only
- Not counted in 12mth period
- Purpose is to encourage reconciliation
* no category called legal separation
- No Likelihood of Cohabitation
Being Resumed
Anmerkungen:
- - Court must be satisfied there is no chance of the couple living together again
- May be satisfactory if only one partner wants divorce
- Less than 2yrs married court requires counselling (reconciliation attempt)
- Application for Divorce (Decree Nisi)
Anmerkungen:
- - Either party may make after 12mths
- Filed in the Federal Magistrates Court
- Further Requirement (Children)
Anmerkungen:
- - Must ensure proper arrangements are made for care, welfare + development
- Family Law Court (FLC)
Anmerkungen:
- Necessary as-
- Need for specialised + sensitive staff
- Special family court lawyers + judges
- Skills in negotiation + dealing with emotional people
- Keeping an informal court environment (reduce stress + kept private)
- New rules for dealing with children + property* Always closed court + based more on inquisitorial system
- Disputes When Marriages Break Down
- Disputes Involving Children
- Either dealt by FCA or FMC
- Family Law Amendment (Shared Parental
Responsibility) Act 2006 (Cth)
Anmerkungen:
- Included in s60 (B) 2-
1. Children should spend equal or at least substantial time with both parents (right to know both)
2. Shared responsibility- parents should consult + agree on major issues (future parenting of child)
3. Right contact on a regular basis
4. Parents are obligated to share the role of parenting that helps children achieve their full potential
- Major Changes
Anmerkungen:
- 1. Equal shared parental responsibility
2. Equal time
3. New Terminology
4. Compulsory attendance of Family Dispute Resolution Centre (FDRC)
5. 'Best interest of child' criteria
6. Parenting plans
7. Conduct of proceedings (inquisitorial system approach)
- Major Issues (for child)
Anmerkungen:
- 1. Education (current + future)
2. Religious + cultural upbringing
3. Health (mental + physical strain)
4. Name + identity
5.Living arrangement (constant changes)
- Terms
Anmerkungen:
- Court now makes orders that are less formal e.g. live with/ spend time with
- Objects
Anmerkungen:
- s 60 (B)-
Children have a right to know + spend regular time with both parents
s 60 (CC)-
'Best Interests of Child'
- Presumption
Anmerkungen:
- s 61 (DA)-
'that it is in the best interests of the child to have shared parental responsibility
* Doesn't mean automatic equal time but court must consider such order or at least substantial time
Practical Effect-
1. More time spent with parent who the child wouldn't normally be with
2. Certain circumstances warrant it impossible e.g young baby working dad
- Other Orders
Anmerkungen:
- Any aspect of acre , welfare, development or parental responsibility e.g. number of phone call during week, not denigrating other parent around child, discussion of all medical treatments + procedures
- Requirements for Counselling
Anmerkungen:
- Family must attend FDC + obtain a certificate
* Exception is history or risk of family violence
- Determining 'Best
Interests of Child'
Anmerkungen:
- s 60 (CC) Types of Considerations
1. Wishes of Children- must take into account any views expressed but don't have to make them speak in court (over 18rs can sign an affidavitt
Ways to Inform-
- Family Report- by a councillor/ social worker
- Independent Child Lawyer- makes informed decision
Final weighting- generally older the child= more weight
* Court takes burden to avoid child having to choose which parent to live with
Generally keep siblings together general belief it is better
- Family Violence
Anmerkungen:
- If there is a possibility of harm to a child from a violent parent court might order supervised circumstances
1. Supervision by a trustworthy relative
2. Contact Center
* Must avoid 'rewarding violent spouse' in eyes of the child
- Relocation Cases
Anmerkungen:
- Depends on 'best interests of child' but parents have rights to freedom of movement
- Child Abduction
Anmerkungen:
- Child is placed on 'watch list' (operated by AFP)
Hague Convention (Child Abduction Convention) signatory countries will take the necessary steps to return child to place of origin
- Child Support
Anmerkungen:
- Parental Duty- parents have a responsibility to maintain children
Assessment is based on taxable income using basic formula
- Ways to Deal With Child Disputes
- a. Agreements
Anmerkungen:
- Resolve issues between themsleves with no court involvement
- b. Consent Orders
Anmerkungen:
- Can apply for an order made by the consent of the court (usually through mediation session with FLC)
- c. Parenting Orders
Anmerkungen:
- Written agreement between parties that is enforceable by the court + more detailed than a consent order e.g. contains- residence, contact, child support + other parental responsibilities
- d. Court Decide
Anmerkungen:
- Considers 'best interests of Child' seen as a last resort
- Disputes Concerning Property
- Dividing Property
- a. Agreement
Anmerkungen:
- Absolve decision between parties with no court involvement (not legally binding)
- b. Consent Orders
Anmerkungen:
- Application to court to be checked + final orders are legally enforceable
- c. Financial Agreements
Anmerkungen:
- To Be Binding Must-
- Be in writing + signed by both parties
- For parties contemplating, married or separated
- Include statement each party sought legal advice
- Certificate + signature of legal professional
- d. Court Decide
Anmerkungen:
- Court creates an order up to 12mths after divorce
- Steps to Divide Property
- 1. Determining Pool of
Assets
Anmerkungen:
- Total Worth= Value- Liabilities (significant assets) e.g. house, car , boat + superannuation
i. Adding Back Money- if large amounts carelessly used
ii. When Assets Should Be Valued- date of hearing
iii. Failure to Disclose Assets- considered perjury + can have orders set aside
2002 Superannuation Amendment-
Courts can make splitting orders (transfer funds from one super account to another)
- 2. Contributions of Parties
Anmerkungen:
- s 79 (4)- Looks at marked difference
a. Financial contributions directly or indirectly to improvement, conservation or acquisition of property
b. Non Financial contribution to improve, conserve or acquire property
c. Contribution to welfare of family or children
- 3. Future Needs of Parties
Anmerkungen:
- s 75 (2)-
i. Age + health
ii. Care + control of children under 18yrs
iii. Income, property, financial resources + capacity for appropriate & meaningful employment
iv. Commitments to support or maintain another person
v. Financial circumstances related to cohabitation
- 4. Proposed Order is Just
& Equitable
Anmerkungen:
- Determine ratio (split) of assets parties should get