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What is The Family Law Act 1975

You, a teenager, might be somewhere in your house right now, curled in a corner, staring at your younger siblings or your parents, anxious about what might happen in the future. Doubts regarding legal security are left unanswered inside your mind. Are we secured? Up to what extent are we covered by the law? What if someone tampers our rights, what can we do to fight back? What would happen to us if our parents split up?

These might be some of the many questions that have been stuck inside your mind, and you badly want clear answers to your questions. Now, allow us to give you a glimpse of the act that has been carefully crafted for your protection and security. This article would only be highlighting the main points of the Act, and they are as follows: 

Overview of the Act

The Australian government, led by Prime Minister Gough Whitlam, enacted the Family Law Act in 1975. It is referred to as FLA by legal practitioners. It consists of 15 parts and it is Australia’s main law in dealing with divorce, property separation, arrangements between separated parents both de-facto and married, and financial maintenance for the children and spouse. History says that the Act came to effect on the 1st of January 1976 and that it repealed the Matrimonial Causes Act of 1961. The Act initially dealt with children born or adopted within the bounds of marriage, but later on covered ex-nuptial children as well. 

The Act is popularly known to be one of the most controversial legislative pieces of the Australian government given the fact that it had been the subject of numerous changes and amendments ever since its enactment. The amendments of 2006 affected a shift in how issues involving children are dealt with. Some of the changes are the following: 

  • Extensively scrutinizing matters involving violence, abuse, or neglect.
  • Placing greater importance on the children’s family and social connections.
  • Presupposing the equal parental responsibility of both parents
  • Progressing towards compulsory mediation.
  • Motivating parents to continually be involved in the lives of the children and to maintain a meaningful relationship with them after the separation, given that there are no risks of abuse or violence. 

The focus of the Act is primarily on the rights of the children and the responsibilities of the parents to their children. It is aimed towards the children’s meaningful relationship with their parents, as well as their protection from any forms of psychological, mental, emotional, or physical harm and abuse. 

Furthermore, the Act grants powers to the Court to order the restrain of domestic violence, matrimonial property disposal, parental responsibility, the arrangement of the children’s living, and financial support for both the former spouses and children. Not only that, but the Court also deals with property settlement or the law that regulates the division of properties. 

Property settlement sets the course for the division of properties of both de-facto and married couples–by properties, we mean assets and liabilities. The purpose of the said settlement is to halt the financial relationship of the parties involved. The property settlement covers all the properties of the parties and takes into consideration the financial situation of each party. Also, the Court retains its power to impose sanctions in numerous areas where the parties do not comply with the orders being given to them. 

The Act also has jurisdiction over matrimonial cases. Each part of the Act is crafted to cater to all possible cases that have something to do with divorce and nullity of marriage, children, and property, spousal maintenance, and maintenance agreements. For you to easily navigate through some parts of the act, they are as follows: Part VI- deals with divorce and nullity of marriage, Part VII- deals with Children, Part VIII- deals with property and spousal maintenance. 

The product of this Act is the Family Court of Australia. The Family Act of 1975 was formed before the emergence of the Family Court. The Family Court of Australia has been created with equal status to the Federal Court of Australia. However, in the year 2000, the Federal Circuit Court was created by the government as another court to handle cases under the Family Law Act. 

Rules and Guidelines

In this act, the Chief Justice of the Family Court has been delegated by the Parliament the authority to create related rules, guidelines, and by-laws. The set of rules and regulations that has been composed by the Chief Justice is known as the Family Rules 2004. The Rules deal with the different practices and procedures of the Court that apply to the proceedings under the Family Law Act in the Family Court. Furthermore, he also has the authority to create guidelines and procedures regarding the Family Court, and these guidelines are intended to inform those who would be using the Court about the way cases work. 

Geographical Scope of the Act

You might be from Australian external territory, and you are wondering whether or not you are covered under this act. The answer is dependent on which external territory you are located since this act covers only 3 Australian external territories, aside from mainland Australia. Under section 7 of part 1, the external territories covered under this act are Norfolk Island, Territory of Christmas Island, and Territory of Cocos (Keeling) Island. So, if you are either from the mainland or the aforementioned territories, consider yourself lucky because you are covered by this Act. 

Non-court Based Family Services 

According to Part II of the Family Law Act of 1975, the parties are permitted to have counselors, dispute resolution practitioners, and other service providers so long as those who would be providing such services are accredited by the Court. We know that facing family cases can be emotional, spiritually, and mentally draining, and for that reason, some opt to hire family counselors to keep them rational and to guide them throughout the case. So, those who would like to seek the aid of the said service providers, they may do so under the agreement that the service providers are approved or authorized by the court. 

The service providers should maintain confidentiality in all aspects. They are not allowed to disclose any information unless the disclosure is required or authorized. They may disclose some information if the disclosure is necessary for law compliance purposes; if consent is given by whom the service provider communicated with and is of legal age, but if the communication is given by a minor, consent must come from the person who has parental responsibility of the child or from the court; if the service providers are of the belief that the disclosure is essential for the protection of the children or the party. 

Family Consultants

Under Part III of the Act, a family consultant’s function is to provide services in relation to the proceedings; to assist courts and give pieces of evidence related to the proceedings; to help the parties involved in the proceeding in resolving disputes; to report to the court under sections 55A and 62G of the Act; and to advise the court concerning appropriate family counselors, family dispute resolution practitioners, programs, and services to which the court can refer the parties to the proceedings. He/she is either duly appointed under the law of a State, under the regulations, or under section 18ZH of the Federal Court of Australia Act 1976.

 It is also noteworthy that the Chief Executive Officer possesses all of the functions and powers of a family consultant, and may direct consultants in the performance of their functions. In addition, a family consultant, during the execution of his/her functions, has similar immunity and protection as a Judge of the Family Court in performing the duties of a Judge. 

Moreover, the Court can consider seeking advice from a family consultant if the Court has the power to command the party to: attend family counseling or dispute resolutions, take part in a course or program other than arbitration, make appointments with a family consultant, or the power to advice the party about family counseling, dispute resolutions, or other programs, services, and courses. Although, prior to the exercise of its power, the court should seek the advice of a family consultant who is rightfully nominated by the Chief Executive Officer, whether that of the Family Court of Australia or the Federal Circuit Court of Australia. 

Parties may be ordered by the Court to attend or arrange for the child to attend appointments with a family consultant. A court having the jurisdiction in proceedings may make an order directing one or more parties to attend an appointment with the family consultant, and/or another order directing one or more parties to arrange for the child to attend an appointment. But prior to the exercise of such power, the Court must seek the advice of a family consultant with respect to the services that are appropriate to the needs of the parties. Failure to submit to the Court’s orders might result in another order by which the Court deems appropriate. 

Divorce and Nullity of Marriage

Given that this Act established the principle of no-fault divorce in Australian law, the application for divorce under this Act must be based on the reason that the breakdown of the marriage is irretrievable. The divorce can only be granted when the Court has proven that the parties separated and have lived separately for a continuous period of not less than 12 months preceding the date of the filing of the application for the divorce order. Withal, a divorce order will not be granted once the Court is convinced that possible cohabitation is still going on. 

A divorce order in relation to marriage will not take effect unless the couple has no children that are not yet 18 years of age; the circumstances of the children below 18 years old have been properly arranged, and their development and welfare are ensured, or the Court finds reasonable circumstances wherein the divorce order should take effect even when such arrangements are not ensured. 

On the other hand, if the parties have reconciled and would apply for the rescission of their divorce, the Court may revoke the divorce order. As found on the Act, reconciliation between partners is deemed enough grounds for the rescission of the divorce order. However, if the divorce order has already taken effect, the parties already have the freedom by law to remarry. 

Children’s Rights

Part VII of the Act seeks to: ensure that the best interest of the children are met by making sure that they enjoy the benefits of having both parents continually be involved in their lives; protect the children from psychological and physiological harm resulting from subject and exposure to abuse, neglect, and family violence; guarantee proper and adequate parenting to help them achieve their full potential; and guarantee that the parents fulfill their duties and responsibilities with regards to the welfare, care, and holistic development of the children. 

The principles of this part are based on the premise that the children have all the rights to know and be taken care of by their parents, regardless if they are married, divorced, have never been married, or have never lived together. In addition, the children could also enjoy the rights of staying in constant communication with both parents and other people who are of importance to their welfare and development. Parents should put to mind that they both share the duties and responsibilities of taking good care of the children and that they should agree regarding their future parenting. Lastly, the children should be given the chance to indulge in their rights to enjoy their culture, including their rights to enjoy it with the people they love. 

Aboriginal children also have their rights to enjoy. The aboriginal children or Torres Strait Islander children have the privilege to maintain a connection with their culture. On top of that, they have the right to gain the support, opportunity, and encouragement necessary to experience the full extent of their culture in a manner consistent with their age, needs, views, and level of development in order for them to develop a positive appreciation of their culture.

In making a parenting order, the best interest of the children is given primary considerations. How does the Court determine what is in the children’s best interest? Considerations on the children’s meaningful relationship with their parents, and their protection and security are given focus. As stated in the Act, additional considerations include any views expressed by the children, the nature of the children’s relationship with their parents or any other significant people, and the extent to which the parents has taken or has failed to take the opportunity to spend time with the children, communicate with them, and participate in major decision making about significant issues. 

Additionally, utmost thought is given to the effect of the changes in the children’s environment, including separation from any of their parents or persons with whom they have been living. The Court also looks into the children’s difficulty in maintaining communication with the parents, and whether that difficulty would affect their right to maintain personal relations and the right to keep in touch with both parents regularly.

Withal, the children and either of their parents’ maturity, sex, lifestyle, background, and any other characteristics the Court deem relevant will be considered. Most importantly, the Court examines whether the children have been facing family violence and abuse, and may order any safeguard necessary for the children’s safety.   

However, a parenting order in relation to the children stops being in force if the children turn 18, would marry or would enter into a de-facto relationship. So, those children who are 18 years of age and above are now considered as adults and are no longer covered by the parenting order. 

In occasions when a party who is involved in a family law proceeding removes the children or child from their usual place of living, and prevents, through Court’s order, the opposing party to contact the children the other party who is involved in the proceedings could file an application to the Court seeking a recovery order. If the recovery order would fail to lead the recovery of the children, an application can be filed seeking a publication order. A publication order allows photographs and certain details of the case to be published with the aim of locating the children.

Property, Spousal Maintenance, and Agreements

As seen in both reel and real life, couples prior to and during the divorce case period argue regarding their properties. Persistent bickering on who gets what and what goes to who is not an unfamiliar scenario to divorcing couples. The government is well aware of this as much as we are, and for that reason, they have considered every bit of this scene when crafting the Act. 

Under Part VIII of the Act, issues on properties and spousal maintenance and agreements are being thoroughly treated. Spousal maintenance is the money given to the ex-partner when they cannot support themselves. But, it should be known that spousal maintenance is not an automatic right. There are certain considerations before spousal maintenance is approved by the Court. 

The considerations being stated are the following: a party is a liable for maintaining the other party under the condition that the latter is unable to support himself or herself adequately whether for the reason that the children below 18 are under his/her care, or of age or physical and mental incapacity or any other adequate reasons that satisfy the Court. However, de-facto or married couples who have an existing financial agreement that has been deemed binding by the court are not covered under this part. 

The spousal maintenance orders may cease to take effect upon the death of the person liable to provide financial support; however, the aforementioned condition will not take effect given that an order to provide financial assistance for a certain time frame has been made before the date of the commencement of section 38 of the Family Law Amendment Act 1983, regardless whether the party liable is living or deceased. 

In which case a legal personal representative of the deceased party would have to continue the support. In addition, spousal maintenance would cease to take effect upon the re-marriage of the party unless, in special circumstances, the Court orders otherwise. When re-marriage takes place, the party benefiting from the support must quickly inform the liable party to give support under the order of the date of the re-marriage. Any monetary support given in respect of a period after the re-marriage may be recovered in a court having jurisdiction under this Act. 

Spousal maintenance orders may be modified, suspended wholly or in part, or revived wholly or in part by the Court if they deem it reasonable to do so, and under several circumstances. Also, the Court shall not make an order to increase or decrease the financial support stipulated in an order, unless they find sufficient grounds to do so. 

Conclusion

No family is perfect. Every family has its fair share of ups and downs. Some families manage to stay at peace with each other; they manage to stick together no matter how hard the challenges and struggles may seem. Other families, on the other hand, experience emotional, physical, mental, and psychological difficulties and traumas, hence making it difficult for them to stay together. Some are even lacking spiritual guidance. Regardless of which kind of family you belong to, the nation acknowledges your value and has done all that it could to protect your rights. 

It has given enormous considerations to your welfare, protection, care, growth, and security. That is what this Act is for. It is for you to live the life that you deserve. You could be a struggling parent or an anxious child, but take heart and be confident that the nation has your back. Slowly strip of the doubts of having a secured and protected life, because you already have it and it will be yours for as long as life allows. 

By Lilian Synan

Lilian is a long time expert on property settlement.

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