Family Flashcards
Matrimonial Causes Act 1959 (Cth)
Before 1974, married couples who wanted to divorce had to apply under the Matrimonial Causes Act 1959 (Cth)
Fault based evidence
14 grounds for divorce
Parenting Plans, Consent Orders and Parenting Orders
–> Parenting Plan- voluntary written agreements between parents (Division 4 FLA), introduced by Family Law Reform Act 1995 (Cth)
–> Consent Order- enforceable agreements made by separating parents
–> Family Law Amendment Act 2000 (Cth) created a three-tiered approach for the enforcement of parenting orders
- Educative
- Punitive
- Remedial
Shared care and parental responsibility
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) introduced the ‘presumption of equal shared parental responsibility’
Parents have an equal shared responsibility for the long term care of their children
Requires parents to consult each other and make joint decisions about major long-term issues for the child
- introduced the concept of ‘equal time’ and ‘substantial and significant time’ arrangements s 65DAA
- Considerations include:
how far apart the parents live
parents’ current and future capacity to implement an arrangement
parents’ current and future capacity to communicate and resolve difficulties that might arise in implementing an arrangement
Best interests of the child
- Family Law Reform Act 1995 (Cth) amended Family Law Act to specifically include the term ‘best interests’ (the principles underlying the amendments are derived from CROC)
- 2006 Amendment divided the considerations into ‘primary’ and ‘additional’
- (Primary and Secondary) The right to have a meaningful relationship with both parents
- The need to protect the child from physical or psychological harm
- (secondary) The views of the child
Family Law Act 1975 (Cth) (ss 75 and 79)
- Financial and non financial contributions to the property
- Earning capacity of each individual
Age of both parties - Who has the care and control of the children
- Inheritance and acquisition of further assets
In Coghlan & Coghlan (2005), the court held that “superannuation interests are another species of asset”
This case provides authority for the treatment of superannuation separately from other property in Family Law
This is known as the “two pools approach” and allows the direct and indirect contributions each party has made to the superannuation pool to be given proper consideration
Family Violence and the Family Law Act definition
“threatening or other behaviour by a person that controls a member of the person’s family, or causes the family member to be fearful.”
Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) change in meaning
- changed to ‘reasonably’ fear for their safety, and to include controlling or coercive behaviour
Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) - children
Definition was extended to include two new categories of behaviour (s 4(1)). The new definition provides that child abuse is:
- assault;
- if the children is used as a sexual object and there are unequal power relations between the child and the perpetrator;
- action causing a child ‘serious
- psychological harm’ and expressly including subjection or exposure to family violence (new); and
- serious neglect (new)
Court will appoint an ‘independent children’s lawyer’ and the case may be moved to a special program of cases called the Magellan Program
Magellan cases involve serious allegations of child abuse (receive special case management, early attention to protection for the child, and expert attentions of a specialised team of judges, registrars and family consultants)
s 5 Crimes (Domestic and Personal Violence) Act 2007 (NSW) defines a ‘domestic relationship’ to include:
Married couples
De facto couples
Intimate personal relationships (does not need to be sexual in nature)
Living in the same household
Relatives
objectives of the Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Objectives of the Act are to ensure the safety of all people who experience or witness domestic violence and to reduce and prevent violence
s 11 describes domestic violence as personal violence committed against someone with whom the offender has (or has had) a domestic relationship
Violence against children - care and protection act
Article 19 CROC declares it is the responsibility of the state to protect the child from all forms of harm
s 227 prohibits intentional acts resulting in physical, sexual, emotional or psychological harm
ss 24-27 certain professionals (i.e. teachers, doctors, school counsellors) must report to FaCS if they suspect a child is at risk of harm
Children and Young Person (Care and Protection) Act 1998 (NSW)
Possible outcomes after FaCS has been notified about abuse of a child:
An Apprehended Violence Order is made
Police can charge accused
Family Court can restrict contact by offender
FaCS can apply for a variety of care and protection orders (i.e. removal of child from a violent environment)
Children Legislation Amendment (Wood Inquiry Recommendation) Act 2009 (NSW)
- Raised the mandatory threshold for reporting to FaCS from ‘risk of harm’ to ‘risk of significant harm’
- Simplified and streamlined the Children’s Court process
- Established Child Wellbeing Units in government agencies that work with children
s 38 Crimes (Domestic and Personal Violence) Amendment Act 2013 (NSW)
- permits senior police officers to issue ADVOs
- Children can be included on an adult’s
- ADVO application
- A police officer is the only person who can apply for an AVO for children under 16, those over 16 can apply for their own AVOs
- range of sentencing options, i.e. imprisonment for up to two years and/or a fine of up to $5,500
Family law court
- Jurisdiction is limited to areas controlled by the Family Law Act 1975 (Cth)
- Includes property and financial matters, maintenance, and parenting arrangements
- Also hears complex issues such as serious allegations of family violence or child abuse (Magellan cases)
- Focuses on reconciliation and encouraging compliance to help disputing parties reach an agreement
