Australian family law
Encyclopedia
Family Law in Australia is contained in various pieces of legislation, but also includes the common law
and laws of equity, which affect the family and the relationship between those people - including when those relationships end.
, children's orders
, property division
and spousal maintenance
are primarily dealt with in the Family Law Act 1975
.
However, there are numerous other laws affecting couples in marriages, marriage-like relationships and parents, including legislation in each Australian state that allows property settlements between de facto
couples. The definition of "de facto couple" now includes same-sex partners in all states and in Commonwealth law.
The names for de facto and similar relationships in each state and territory are as follows:
In December 2006, a number of states indicated an intention to transfer their power to make these laws to the Australian parliament. However, as the Australian parliament has refused to make laws governing same-sex couples in the past, the impact these changes will have on the existing scheme is uncertain.
basis, under state and territory legislation, whilst parenting arrangements are dealt with under the Commonwealth Family Law Act 1975
.
There is also a government-administered Child Support Scheme, whereby parents can either reach private agreements or can be required by the Child Support Agency to make payments to the person who has primary care of the child. Since 1989 child support
has been assessed under the Child Support (Assessment) Act, 1989 administered by the Child Support Agency Australia
.
Australian domestic law also enshrines some of Australia's obligations under international law. Australia is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction
, which is dealt with in the Family Law Act 1975.
On 22 May 2006, Australia passed amendments to its Family Law Act 1975, named the Family Law Amendment (Shared Parental Responsibility) Act 2006, which applies to any court matters involving children that were in court on or after 1 July 2006.
A stated object of this law is to ensure that the best interests of children are met by ensuring that "children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child...." The primary object of this law is to ensure that the Courts always have the "best interests of the child" as the paramount consideration. Many however argue (among them legal minds such as Mitch Minehan) that such an arrangement actually works against achieving this, and today continue to push for further reform.
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
and laws of equity, which affect the family and the relationship between those people - including when those relationships end.
Laws affecting Married and De Facto couples
Laws in Australia covering areas such as divorceDivorce
Divorce is the final termination of a marital union, canceling the legal duties and responsibilities of marriage and dissolving the bonds of matrimony between the parties...
, children's orders
Child custody
Child custody and guardianship are legal terms which are used to describe the legal and practical relationship between a parent and his or her child, such as the right of the parent to make decisions for the child, and the parent's duty to care for the child.Following ratification of the United...
, property division
Division of property
Division of property, also known as equitable distribution, is a judicial division of property rights and obligations between spouses during divorce...
and spousal maintenance
Alimony
Alimony is a U.S. term denoting a legal obligation to provide financial support to one's spouse from the other spouse after marital separation or from the ex-spouse upon divorce...
are primarily dealt with in the Family Law Act 1975
Family Law Act 1975
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...
.
However, there are numerous other laws affecting couples in marriages, marriage-like relationships and parents, including legislation in each Australian state that allows property settlements between de facto
De facto
De facto is a Latin expression that means "concerning fact." In law, it often means "in practice but not necessarily ordained by law" or "in practice or actuality, but not officially established." It is commonly used in contrast to de jure when referring to matters of law, governance, or...
couples. The definition of "de facto couple" now includes same-sex partners in all states and in Commonwealth law.
The names for de facto and similar relationships in each state and territory are as follows:
| State | Name | Law |
|---|---|---|
| New South Wales New South Wales New South Wales is a state of :Australia, located in the east of the country. It is bordered by Queensland, Victoria and South Australia to the north, south and west respectively. To the east, the state is bordered by the Tasman Sea, which forms part of the Pacific Ocean. New South Wales... |
"Domestic relationship", encompassing "de facto relationships" and "close personal relationships" | Property (Relationships) Act 1984 |
| Victoria Victoria (Australia) Victoria is the second most populous state in Australia. Geographically the smallest mainland state, Victoria is bordered by New South Wales, South Australia, and Tasmania on Boundary Islet to the north, west and south respectively.... |
"Domestic relationship", defined to mean "de facto relationships" | Property Law Act 1958 Part IX has now been repealed effective 1 December 2008, now encompassed in the Relationships Act 2008. |
| Queensland Queensland Queensland is a state of Australia, occupying the north-eastern section of the mainland continent. It is bordered by the Northern Territory, South Australia and New South Wales to the west, south-west and south respectively. To the east, Queensland is bordered by the Coral Sea and Pacific Ocean... |
"De facto relationship" | Property Law Act 1974 |
| South Australia South Australia South Australia is a state of Australia in the southern central part of the country. It covers some of the most arid parts of the continent; with a total land area of , it is the fourth largest of Australia's six states and two territories.South Australia shares borders with all of the mainland... |
"Close personal relationship" | Domestic Partners Property Act 1996 |
| Western Australia Western Australia Western Australia is a state of Australia, occupying the entire western third of the Australian continent. It is bounded by the Indian Ocean to the north and west, the Great Australian Bight and Indian Ocean to the south, the Northern Territory to the north-east and South Australia to the south-east... |
"De facto relationship" | Family Court Act 1997, Part 5A |
| Tasmania Tasmania Tasmania is an Australian island and state. It is south of the continent, separated by Bass Strait. The state includes the island of Tasmania—the 26th largest island in the world—and the surrounding islands. The state has a population of 507,626 , of whom almost half reside in the greater Hobart... |
"Personal relationship", encompassing "significant relationships" and "caring relationships" | Relationships Act 2003 |
| Australian Capital Territory Australian Capital Territory The Australian Capital Territory, often abbreviated ACT, is the capital territory of the Commonwealth of Australia and is the smallest self-governing internal territory... |
"Domestic relationship" and "domestic partnership" | Domestic Relationships Act 1994, Legislation Act 2001 s 169 |
| Northern Territory Northern Territory The Northern Territory is a federal territory of Australia, occupying much of the centre of the mainland continent, as well as the central northern regions... |
"De facto relationship" | De Facto Relationships Act 1991 |
In December 2006, a number of states indicated an intention to transfer their power to make these laws to the Australian parliament. However, as the Australian parliament has refused to make laws governing same-sex couples in the past, the impact these changes will have on the existing scheme is uncertain.
Laws affecting Children
The family law framework deals with parenting arrangements and ensuring the best interests of children, especially in circumstances where they are at risk or where their parents or carers are separating. Child protection is primarily dealt with on a state and territoryStates and territories of Australia
The Commonwealth of Australia is a union of six states and various territories. The Australian mainland is made up of five states and three territories, with the sixth state of Tasmania being made up of islands. In addition there are six island territories, known as external territories, and a...
basis, under state and territory legislation, whilst parenting arrangements are dealt with under the Commonwealth Family Law Act 1975
Family Law Act 1975
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...
.
There is also a government-administered Child Support Scheme, whereby parents can either reach private agreements or can be required by the Child Support Agency to make payments to the person who has primary care of the child. Since 1989 child support
Child support
In family law and public policy, child support is an ongoing, periodic payment made by a parent for the financial benefit of a child following the end of a marriage or other relationship...
has been assessed under the Child Support (Assessment) Act, 1989 administered by the Child Support Agency Australia
Child Support Agency Australia
The Child Support Agency is an Australian Government organisation which was established in 1988 to administer the assessment and collection of child support under the Australian Government's Child Support Scheme.-Overview:...
.
Australian domestic law also enshrines some of Australia's obligations under international law. Australia is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction
Hague Convention on the Civil Aspects of International Child Abduction
The Hague Convention on the Civil Aspects of International Child Abduction, or Hague Abduction Convention is a multilateral treaty developed by the Hague Conference on Private International Law that provides an expeditious method to return a child internationally abducted from one member nation to...
, which is dealt with in the Family Law Act 1975.
On 22 May 2006, Australia passed amendments to its Family Law Act 1975, named the Family Law Amendment (Shared Parental Responsibility) Act 2006, which applies to any court matters involving children that were in court on or after 1 July 2006.
A stated object of this law is to ensure that the best interests of children are met by ensuring that "children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child...." The primary object of this law is to ensure that the Courts always have the "best interests of the child" as the paramount consideration. Many however argue (among them legal minds such as Mitch Minehan) that such an arrangement actually works against achieving this, and today continue to push for further reform.