Family Law Act 1975
The original Family Law Act was a radical social instrument in its time. Its features, which reflected updated and contemporary ideas about family breakdown, included:
- the ‘no-fault divorce’;
- that the best interests of the child must be the ‘paramount consideration’ in deciding parenting arrangements after divorce;
- equal valuation of the homemaker’s and breadwinner’s contribution to family life (in deciding on property distribution);
- equality of position as between father and mother in relation to custody of a child after separation; and
- provision for a comprehensive new system of court-based marital counselling.
However, a serious problem remained. The limitation of the Commonwealth’s powers under the Australian Constitution meant that the new Family Law Act could only apply to the children and breakdown of family relationships of married couples.
Constitutional roadblocks to Commonwealth coverage of ex-nuptial children
Under the Australian Constitution, state and territory parliaments have powers to make any laws they consider necessary for the ‘peace, order and good government’ except if such a law would be inconsistent with a valid Commonwealth law. This power to make law in areas not already occupied by valid Commonwealth law is called the states’ residual legislative power.
By contrast, the Constitution (at section 51) says that the Commonwealth Parliament may make laws in a listed set of areas only. These areas include marriage, divorce and pensions and benefits. They also include the custody and guardianship of children, but only for those children whose parents are or have been married and are involved in marital breakdown.
Because of these limits on the power of the Commonwealth under the Constitution, the original 1975 version of Commonwealth’s Family Law Act could deal only with the property, financial and parenting arrangements of a married couple experiencing relationship breakdown. Parenting arrangements involving casual or de facto relationships were not covered. Post-separation financial and property disputes for people in de facto relationships, also, were not covered. Unmarried people with these issues needed to attend at a state court under state legislation rather than a federal court under the Commonwealth’s family law legislation.
A solution is found for parenting disputes
Between 1986 and 1990, all the states and territories except Western Australia passed laws to refer (hand over) to the Commonwealth the part of their residual powers that deals with parenting arrangements for children of unmarried partners.
The Family Law Act 1975 (Cth) was amended in 1995 to reflect the states’ referral of power. Although this solution was not as tidy nor as long-term as an amendment to the Constitution, it was a lot easier to achieve and meant that all children caught up in relationship breakdown could be dealt with under the one law, whether their parents were married or not.
Western Australia decided to keep its powers in relation to the children of unmarried partners, rather than referring them to the Commonwealth. It maintains a separate Family Court of Western Australia, which deals with both federal and state issues in relation to children, as well as all matters arising from relationship breakdown, irrespective of the marital status of the parties.
Dealing with the property issues of de facto partners
A significant amount of the Family Law Act deals with the division of property and finances after relationship breakdown. Similarly to the case with children’s issues, the Constitution allows the Commonwealth to make laws and decisions about property only in relation to marital breakdown. So for many years, the property issues of de facto couples experiencing relationship breakdown were not covered under the Act.
This situation effectively discriminated against unmarried couples, who were required to take their property disputes to the state court instead. Not only are the costs of going to a state court much higher than the costs of a property case in the Commonwealth’s Family Court, but the state legislation for property division on relationship breakdown uses different criteria. (Less wealthy, low-earning unmarried partners are likely to receive significantly less from a property distribution in a state court than they would under the Commonwealth law because the state legislation does not take into account likely future earnings of a high-earning spouse.) For more information see How the court decides property and financial issues.
The unfairness and inconvenience of this situation had long been recognised and so progressively from 2003, the states and territories began passing laws referring their power over the property of de facto couples to the Commonwealth. Under the Family Law Amendment (De facto Financial Matters and other Measures) Act 2008 de facto couples (including same-sex couples) can now access Commonwealth law and Commonwealth courts in relations to property distribution and other financial matters at the end of their relationships. For further details see Removing discrimination in Commonwealth law.
Developments in family law since 1975
The Family Law Act 1975 (Cth) established the Family Court of Australia and a uniform code for divorce and issues arising on marital breakdown such as property settlements and parenting disputes (‘matrimonial causes’).
1988 and 1990
By agreement among the states (except Western Australia), territories and the Federal Government, the Family Law Act 1975 was amended to bring children of de facto relationships (ex-nuptial children) within the jurisdiction of the Family Court of Australia.
The Family Law Reform Act 1995 (Cth) attempted to re-focus attitudes away from the notion of the ownership of children towards greater emphasis on their best interests. The terms ‘custody’ and ‘access’ were changed to ‘residence’ and ‘contact’. The concept of guardianship was replaced by ‘parental responsibility’. It also introduced recognition of the potential impact of family violence on children within the legislation.
Federal Magistrates Act 1999 (Cth) established a federal magistracy service as a lower level court below the Family Court of Australia and Federal Court of Australia, to deal with simple family law matters more speedily and at a lower cost. (The Court was subsequently renamed the Federal Circuit Court in 2012.)
Family Law Legislation Amendment (Superannuation) Act 2001 came into operation, enabling superannuation, for the first time, to be treated as property and split between divorcing couples.
Western Australia gave the same rights to de facto and same sex couples as divorcing couples in property disputes under the Acts Amendment (Lesbian and Gay Law Reform) Act 2002 (WA) and the Family Court Amendment Act 2002 (WA).
The Family Law Amendment Act 2003 empowered the Family Court to distribute the debts of parties in the same way as property, and to make orders, for example, that a creditor (like a bank) must substitute one party for another in relation to responsibility for a debt. It introduced a tougher regime for dealing with people who contravene parenting orders made by the court.
All states (except Western Australia) agreed to draw up legislation to refer power to the Commonwealth to make laws in respect of de facto property matters.
The new Family Law Rules 2004 created changes aimed at simplifying court procedures, instituting new requirements for parties to attempt to resolve their disputes before commencing a case in court (called pre-action procedures) and creating tougher penalties for parties and their lawyers who use delaying or other inflammatory tactics in a case.
The Bankruptcy and Family Law Legislation Amendment Act 2005 provided that the creditors of a bankrupt spouse (other people to whom the spouse owes money) would come to argue for their share in a property settlement in the Family Court alongside the spouse of the bankrupt person. Previously, the spouse had to argue for any share in the remaining property in the bankruptcy court, and often missed out as the bankruptcy court does not take child-rearing or homemaking contributions into account in assessing the fair division of available financial and property resources.
The Family Law (Shared Parental Responsibility) Act 2006 made the most significant changes to Australian family law since the original Act in 1975, featuring provisions for shared, co-operative parenting after separation.
The revised Family Law Rules 2006 set out procedures for the new form of litigation known as ‘child-related proceedings’.
The Family Law Regulations 2007 introduced the detail of the new system of compulsory family dispute resolution. The Regulations included a system for registration and accreditation of family dispute resolution practitioners.
The Family Law Amendment (De facto Financial Matters and other Measures) Act 2008 made provision, for the first time, for coverage of de facto couples under the Commonwealth’s scheme under family law for property division and rationalisation of financial affairs at the end of a relationship.
The Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 provided new and broader definitions of family violence and child abuse, strengthened court process around family violence and abuse and gave top priority to child safety in the list of considerations necessary for assessing a child’s best interests.
Hot Topics 82: Families. Hot Topics is intended as an introductory guide only and should not be interpreted as legal advice. Whilst every effort is made to provide the most accurate and up-to-date information, the Legal Information Access Centre does not assume responsibility for any errors or omissions.
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