MLL408 – Subject Notes Family Law
Topic 1: Family Law Concepts
Topic 2: Family Law in a Federation Topic 3: Marriage
Topic 4: Divorce & Nullity
Topic 5: Children & International Child Abduction Topic 6: Property & Spousal Maintenance
Topic 7: Family Violence
Note: Covers all MLL408 topics.
Contents Page Topic 1 – Family Law Concepts
• Principles of Marriage
• Principles of Divorce
• Key Family Law Statistics
• Domestic Relationship (De Facto)
• Defining a Family
• Modern Family
• Australian Institute of Family Studies
Topic 2 – Family Law in a Federation
• System Prior to 1975
• Whitlam Government - 1972
• Powers of the Parliament
• Interpretation and Meaning of Marriage
• Case: Commonwealth v ACT [2013] HCA 55
• Marriage in Legislation
• Family Law Act 1975 (Cth)
• States’ Referral of Powers to Commonwealth
• Constitutional Limits
• Background to Family Law Act
• Family Court of Australia
• Federal Circuit Court
• Magistrates’ Court
• Family Court of Western Australia
Topic 3 – Marriage
• Universal Declaration of Human Rights
• United Nations Covenant on Civil and Political Rights
• Definition of Marriage in Australia
• Marriage Amendment (Definition and Religious Freedoms) Bill 2017
• Elements: Voluntary Union
• For Life
• ‘Of 2 people’
• Of One Man & Woman
• Case: Corbett v Corbett (1971)
• Case: Marriage of C and D1979
• Case: A-G v Family Court at Otahuhu (1995)
• Case: Re Kevin 2001
• ‘To the exclusion of all others’
• Marriageable Age
• Recognition of Foreign Marriages
• Formalities for a Valid Marriage
• Exceptions to Invalidity for Lack of Correct Form
• Relationships Act 2008
Topic 4 – Divorce & Nullity
• Eligibility To Commence Proceedings For A Divorce Order
• Definition of Divorce
• Definition of Separation
• Do You Need Communication Of Separation?
• Separation Under One Roof
• Resumption Of Cohabitation
• Effect Of Resuming The Relationship Once The Application Has Been Filed?
• Marriage Counseling
• Children Under 18
• Divorce Order
• Nullity
• Grounds For Nullity
• Bigamy
• Marrying The Same Person Twice
• What Must One Do To Extrapolate Themselves From Both Marriages?
• What If It Is An Overseas Marriage?
• Lack of Real Consent
• Duress
• Case: Nagri & Chapal [2012] FamCA 464:
• Fraud
• Case: Marquis & Marquis [2012] FamCA 137
• Mistake As To Identity
• Mistake As To Ceremony
• Mental Incapacity
• Marriageable Age
• Status of the Parties
• Remarriage
Topic 5 – Children & International Child Abduction
• Children’s Rights
• UNCROC
• Family Violence Amendments
• Object of the FLA
• Parenting Plans
• Assistance: Family Relationship Centres / FDR practitioner
• When Parents Do Not Agree
• Courts Powers to make Orders
• Who may apply for an Order?
• Who is a Parent?
• Parenting Orders
• Varying A Parenting Order
• Enforcing Orders If Contravened
• Supervision Orders
• What Is Parental Responsibility?
• Case: Marion’s Case 1992 HC
• Case: Gillick v West Norfolk and Wisbech Area Health Authority [1985]
• Equal Shared Parental Responsibility
• Obligations To Consult
• Definition of Major Long Term Issues
• Case: Goode and Goode (2006)
• Summary of Shared Parental Responsibility
• Approaching Parenting Matters
• Shared Parental Responsibility – Primary Considerations
• Views of the Child
• Case: Irish and Michelle
• How Obtain Views?
• Court Records
• Independent Children’s Lawyers
• Case: Re K (1994)
• Relationships with Others
• Siblings
• Parents Participation In The Life Of The Child
• Parents Fulfillment Of Obligations To Maintain A Child
• Likely Affect Of Any Changes On A Child’s Circumstances
• Case: MRR v GR [2010] HCA
• Practicality and Cost of Spending Time and Communicating with Child
• Capacity and Conduct of the Parties (Section: 60CC(3)(f))
• Maturity, Sex, Lifestyle and Background
• Aboriginal & Torres Strait Islander – Right to Enjoy Culture
• Attitudes of Parents to Child and Parenthood
• Case: M & M (1988)
• Orders that End Further Disputes (Section: 60CC(3)(l))
• Any Other Factors
• Variation & Contravention
• Parens Patriae – Welfare Jurisdiction of the Family Court
• Approaching Children’s Issue in Family Law
• Hague Convention on the Civil Aspects of International Child Abduction
• International Parental Child Abduction
• Effects of Child Abduction
• Legal Avenues for Left-Behind Parents
• Application for Child Abduction
Topic 6 – Property & Spousal Maintenance
• Settlement Procedure
• Litigation
• Separation of Poverty
• De Facto
• Jurisdiction for De Facto
• Family Law Act or State Law?
• De Facto Relationship
• Do the Persons have a Relationship as Couple?
• Length of De Facto
• Substantial Contribution
• De Facto Relationship
• De Facto Financial Cause
• When Did The Parties Separate?
• Time Limitation
• Sufficient Connection To A Participating Jurisdiction
• Maintenance
• Superannuation
• Marital Property - Bringing an Application
• Matrimonial Cause
• Property
• Property Before Proceedings Can Be Instituted?
• Property – Financial Resource
• Declaration of Property Interests
• Alteration of Property Interests
• Case: Stanford (High Court)
• Step 1: Is it just and equitable?
• Step 2: Identify And Value Property
• Duty To Provide Full And Frank Disclosure
• Limited To Available Property
• Time of Valuation
• The Property Pool
• Superannuation
• Step 3: Assessment of Contributions
• Section 79(4)(a) – Financial Contributions
• Windfalls
• Gifts
• Inheritances
• Section 79(4)(b) – Non-Financial Contributions
• Case: Mallet v Mallet (1984)
• Section 79(4)(c) – Homemaker and Parenting Contributions
• Add-Backs
• Wastage
• Future Needs
• Just and Equitable
• Clean Break Principle
• Spousal Maintenance
• Major Pressures
• Primary Purpose
• Orders for Special Maintenance
• Right of a Spouse to Maintenance
• Necessary Conditions
• Applicant Must Establish Financial Need
• Applicant Must Establish Respondent Able To Pay
• Appropriate Level of Maintenance
• Income Poor or Asset Depletion
• Cessation of Orders
• Varying, Discharging
Topic 7 – Family Violence
• Family Violence Statistics
• Abs Personal Safety Survey (Australia) – Partner Violence 2016
• Abs Personal Safety Survey (Australia) – 2016
• Victoria Police Crime Statistics 2013
• Violence & Abuse within the Family
• Family Violence Protection Act 2008 (Vic)
• Examples of Child Exposure
• By Whom Is Violence Committed
• Reasons (none satisfactory)
• Characteristics Of Victims
• Family Violence Protection Act 2008
• Scope
• Family Violence Intervention Orders - Conditions
• ‘Best Interests Of The Child’
• Interaction between IVO and FLA Order
Topic 4 – Divorce & Nullity
Eligibility To Commence Proceedings For A Divorce Order
Section 39(3): Either party to the marriage(a) Is an Australian citizen; or (b) Is domiciled in Australia; or
(c) Is ordinarily in Australia and has been so resident for 1 year immediately preceding that date.
Definition of Divorce
Section 48 FLA:(1) Irretrievable breakdown.
(2) Separated and lived separately and apart continuously for at least 12 months immediately preceding the filing of the application. **
(3) Must not be made if reasonable likelihood of resuming cohabitation.
Definition of Separation
Section 48(2): Not necessarily physical separation.
Todd: “Separation means more than physical separation – it involves the breakdown of the marital relationship…must be intention and severence (doesn not have to be physical severence.”
Falk: Parties may have ‘separated’ despite there being no physical departure by them from the matrimonial home that they previously occupied. “It is accepted that separation really means a departure from a state of things rather than from a particular place”.
IMPORTANT: There must be a breakdown of matrimonial relationship.
What does the court look for to prove breakdown of marriage?
- General approach - before and after test.
- Marriage of Todd (1976) – “what comprises the marital relationship for each couple will vary”.
- Burden – not necessary complete.
Do You Need Communication Of Separation?
Section 48(2) – (Marriage of Todd) separation can only occur where:
1. An intention to separate (that is, to break the matrimonial relationship or consortium vitae);
2. Action upon that intention; and
3. Communication of that intention to the other party.
Marriage of Falk (1977):
- The intention to separate must be communicated.
- Many ways communicating - spoken or unspoken.
- Easy if both parties withdraw.
- Problem if intention one party only and need to establish date of separation.
- Marriage of Lane (No 1): not completely withdrawn nor did he communicate his intention.
Separation Under One Roof
Section 49(2): The parties to a marriage may be held to have separated and to have lived separately and apart notwithstanding that they have continued to reside in the same residence or that either party has rendered some household services to the other.
- Physical separation not required.
- Falk (1977): ‘departure from a state of things’.
What if same bedroom?
- Watkins v Watkins (1952): Same room, different bed.
- Caretti v Caretti (1977): Same room, same bed.
Pavey (1976) – “Without a full explanation of the circumstances, there is an inherent unlikelihood that the marriage has broken down, for the common residence suggests continuing cohabitation… judges of the Family Court have adopted the practice of requiring corroboration of the applicant’s evidence in cases where the parties reside in the same residence. We do not wish to lay down an inflexible rule that evidence from a witness other than the parties to a marriage must be given, but an applicant should always be ready to call such evidence...”
- Affidavit – Need to explain why you continue to live under one roof and provide explanation as to nature of separation i.e. demonstrate that there has been a change in relationship, gradual or sudden, constituting a separation.
Resumption Of Cohabitation
Section 50 FLA: Can resume for 1 period (up to three months).
Prima Facie: Any resumption of cohabitation within the 12 month period annuls the prior period of separation. Therefore annuls any entitlement to a grant of a divorce order.
- Cohabitation effective re-establishes the marriage and ends the separation period.
- The reason is irrelevant.
- Marriage of Clarke (1986) - the law encourages reconciliation or at least a trial.
What Is The Effect Of Resuming The Relationship Once The Application Has Been Filed?
Marriage of Feltrus (1977):
• Start all over again
• any resumption of cohabitation after the filing of an application for a divorce order completely destroys the grounds of divorce, with the result that the parties have to separate for a further 12 months before they become entitled to a divorce order.
Marriage of Thompson (1977)
• It might be deemed that:
• “Where the resumption of cohabitation occurs after the application for a divorce has been filed, the separation period is unaffected.”
Marriage Counseling
Section 44(1B): An application for a divorce of a marriage less than 2 years must not be filed unless it is filed with the prescribed counselling certificate.
- Marriage of Kelada (1984) – mandatory.
Section 44(1C): Leave may be granted by the court if it is satisfied that there are special circumstances by which the hearing of the application should proceed notwithstanding that the parties have not considered a reconciliation and no certificate filed with the application.
- Marriage of Malyszko 1979) - special circumstance is either other party cannot be located or refuses to attend.
Children Under 18
Section 55A(1)(b)(i) – Divorce order where children
(1) A divorce order in relation to a marriage does not take effect unless the court has, by order, declared that it is satisfied:
(a) That there are no children of the marriage who have not attained 18 years of age;
or
(b) That the only children of the marriage who have not attained 18 years of age are the children specified in the order and that:
(i) Proper arrangements in all the circumstances have been made for the care, welfare and development of those children; or
(ii) There are circumstances by reason of which the divorce order should take effect even though the court is not satisfied that such arrangements have been made.
Divorce Order
Section 55 - Final one month after the application is granted.
Section 57 – Rescission.
Section 59 - Parties can remarry.
Section 94 – Bigamy.
Section 93 - Appealing a divorce order:
- Only opening for an appeal is in between the date of the hearing and the divorce becoming final
- Once final no ground for an appeal.
- Refer to Waldon & Kipley-Waldon [2013] why waste time and resources
