Family Law

1. 1. Man + Woman

   Annotations:

   • - 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. 2. To the Exclusion of all Others

   Annotations:

   • - 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. 3. Voluntarily Entered Into For Life

   Annotations:

   • 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. 4. For Life

   Annotations:

   • 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'

Annotations:

• - Marriage is made void - Based upon legal impediments 'declarations the marriage was invalid' - e.g. impediment of consangunity + infinity 

1. Matrimonial Causes Act (1857)

   Annotations:

   • - 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) 
2. Matrimonial Causes Act 1959 (Cth) Fault Divorce

   Annotations:

   • Fault Divorce- Adultery Separated or lived apart for 5yrs Habitual cruelty, drunkenness, rape Party in prison (3yrs of more) Willful + persistent refusal from consummation 
3. Family Law Act 1975 (Cth) No Fault Divorce

   Annotations:

   • - 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' 
4. Irretrievable Breakdown

   Annotations:

   • - s 48 only ground for divorce  - 12mths separation is the only evidence required (dates) - Must satisfy 'no reasonable likelihood of cohabitation being resumed 
5. Lived Separate + Apart

   Annotations:

   • - Requirement that partners lived separately + apart during 12mths - Not necessary to be in different houses - yet must prove were living separately 
6. Resumption of Cohabitation

   Annotations:

   • - 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 
7. No Likelihood of Cohabitation Being Resumed

   Annotations:

   • - 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)
8. Application for Divorce (Decree Nisi)

   Annotations:

   • - Either party may make after 12mths - Filed in the Federal Magistrates Court
9. Further Requirement (Children)

   Annotations:

   • - Must ensure proper arrangements are made for care, welfare + development 
10. Family Law Court (FLC)

    Annotations:

    • 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

1. Either dealt by FCA or FMC
2. Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)

   Annotations:

   • 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 
   1. Major Changes

      Annotations:

      • 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)
   2. Major Issues (for child)

      Annotations:

      • 1. Education (current + future) 2. Religious + cultural upbringing 3. Health (mental + physical strain) 4. Name + identity  5.Living arrangement (constant changes)
   3. Terms

      Annotations:

      • Court now makes orders that are less formal e.g. live with/ spend time with
   4. Objects

      Annotations:

      • s 60 (B)-  Children have a right to know + spend regular time with both parents  s 60 (CC)- 'Best Interests of Child'
   5. Presumption

      Annotations:

      • 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
   6. Other Orders

      Annotations:

      • 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
   7. Requirements for Counselling

      Annotations:

      • Family must attend FDC  + obtain a certificate * Exception is history or risk of family violence
   8. Determining 'Best Interests of Child'

      Annotations:

      • 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
3. Family Violence

   Annotations:

   • 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 
4. Relocation Cases

   Annotations:

   • Depends on 'best interests of child' but parents have rights to freedom of movement
5. Child Abduction

   Annotations:

   • 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
6. Child Support

   Annotations:

   • Parental Duty- parents have a responsibility to maintain children Assessment is based on taxable income using basic formula

1. a. Agreements

   Annotations:

   • Resolve issues between themsleves with no court involvement 
2. b. Consent Orders

   Annotations:

   • Can apply for an order made by the consent of the court (usually through mediation session with FLC)
3. c. Parenting Orders

   Annotations:

   • 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 
4. d. Court Decide

   Annotations:

   • Considers 'best interests of Child' seen as a last resort

1. Dividing Property
   1. a. Agreement

      Annotations:

      • Absolve decision between parties with no court involvement (not legally binding)
   2. b. Consent Orders

      Annotations:

      • Application to court to be checked + final orders are legally enforceable
   3. c. Financial Agreements

      Annotations:

      • 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 
   4. d. Court Decide

      Annotations:

      • Court creates an order up to 12mths after divorce 
2. Steps to Divide Property
   1. 1. Determining Pool of Assets

      Annotations:

      • 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. 2. Contributions of Parties

      Annotations:

      • 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. 3. Future Needs of Parties

      Annotations:

      • 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. 4. Proposed Order is Just & Equitable

      Annotations:

      • Determine ratio (split) of assets parties should get