Lecturer: Andrea Cotter-Moroz FAMILY LAW Lecturer: Andrea Cotter-Moroz Family Law Topic 1

TOPIC 1: HISTORICAL BACKGROUND AND CONSTITUTIONAL FACTORS FAMILY LAW TOPIC 1: HISTORICAL BACKGROUND AND CONSTITUTIONAL FACTORS Family Law Topic 1

Topic 1: overview 1. An Historical Introduction 2. Federal and State Powers in Family Law 3. Family Law Act, 1975 but first..... the subject outline Family Law Topic 1

1. An Historical Introduction Preliminary Issues: what does ‘family’ mean? Family Law Topic 1

Is this a Family? Circa 1939 Family Law Topic 1

What about this Family? Circa 1968 Family Law Topic 1

What about this family? Family Law Topic 1

How about this? Family Law Topic 1

Is this a family? Family Law Topic 1

UN International Covenant on Civil and Political Rights Articles 23 and 24: 1. ... family is the natural and fundamental group unit of society ... entitled to protection 2. ... right ... to marry and to found a family shall be recognised 3. No marriage ... without the free and full consent 4. States ... ensure equality of rights and responsibilities of spouses ... during marriage and at its dissolution ...the necessary protection of any children Family Law Topic 1

UN International Covenant on Civil and Political Rights Articles 23 and 24: 1. Every child ... without any discrimination ... the right to such measures of protection as are required by his [sic] status as a minor, on the part of his family, society and the State 2. Every child shall be registered immediately after birth and shall have a name 3. Every child has the right to acquire a nationality Family Law Topic 1

Royal Commission on Human Relationships (1975-78) ‘... Of all our institutions, the family is the most influential in terms of human relationships. It is universal, being both found in both sophisticated and primitive societies as far back as our knowledge takes it. Though it has had and will have many different forms, it is unlikely that it will ever disappear, not would we wish it to’ [see Vol 4 at p1] Family Law Topic 1

Peter McDonald, Settling Up... Prentice Hall, 1986 ‘Joint economic endeavour has always been one of the most important functions of the family. The family grouping has provided the opportunity for specialisation and economies of scale; it has provided that required labour and the support necessary for its dependent members’ [see p308] Family Law Topic 1

Ecclesiastical Law – where does it come from? Family Law Topic 1

(a) Ecclesiastical Law Family Law Topic 1

Ecclesiastical Law Aust family law developed from Eng fam law. Eng fam law traditionally based on marriage Marriage, private until 7thC, no formalities, no requirement for registration etc, just a promise to each other then Roman Catholic Church took interest, so by 12th C, marriage law part of church jurisdiction – still no formalities Family Law Topic 1

Ecclesiastical Law Council of Trent 1545 – intro rules re formalities eg presence of priest (RCC) – no dissolution of marriage; no registration (only parish register) –until Reformation, then back to pre-Tridentine state until: Clandestine Marriages Act 1753 (Lord Hardwicke’s Act) (Eng) – no divorce (Bigamy only a felony in 1603) Note: Registration Act 1837 (Eng) Now see Registration of Births Deaths and Marriages Act 1995 (NSW) Family Law Topic 1

(a) Ecclesiastical Law Principal forms of relief degree of nullity of marriage (Eccl Ct) ( could then remarry) ii. decree ‘a mensa et thoro’ (Ecc Ct - if adultery) iii. decree of restitution of conjugal rights decree for jactitation of marriage Private Acts of Parliament: St Raymond of Peñafort (c. 1175 – 1275) divorce ‘a vinculo matrimonii’ ( 2 steps) Divorce and Matrimonial Causes Act 1857 (UK) . Divorce on ground of adultry only other grounds eg. desertion etc – judicial separation Matrimonial Causes Act 1937 (UK) – cruelty, desertion (3yrs) and insanity added as grounds of divorce Family Law Topic 1

(b) Early Australian Law Anglican Marriage ‘Acts’ 1834-1855 Adoption of UK Matrimonial Causes legislation Samuel Marsden (1765 - 1838) Matrimonial Causes Act 1959 (Cth) Marriage Act 1961 (Cth) State marriage laws existed up to 1 Sep 1963 State divorce laws existed up to 1 Feb 1961 Family Law Act, 1975 (Cth) Family Law Topic 1

(2) Federal and State Powers in Family Law (a) Federal Powers Aust. Const. s51 (xxi)(xxii) ‘Parliament shall have power to make laws for the peace, order, and good government of the C’wealth with respect to ...: (xxi) Marriage; (xxii) Divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants’ Matrimonial Causes Act, 1959 Marriage Act, 1961 See also: incidental power s51(xxxix); and referred powers s 51 (xxxvii) Family Law Topic 1

Federal and State Powers in Family Law Pre FLA cases re federal powers: AG (Vic) v The Cth (The Marriage Act case)1962 Held – marriage power not ltd to formation of marriage but also wide enough to deal with status that marriage involves eg mutual rights & duties between parties Lansell (1964) – meaning of “mat cause” not resolved but Ct held power to order property settlement in assoc with other principal relief Family Law Topic 1

(2) Federal and State Powers in Family Law (a) Federal Powers Family Law Act 1975 (Cth) assent 12 June 1975 commences 5 January 1976 Constitutional challenge: Russell, Farrelly (1976) – Farrelly -If power to deal with maintenance, property, custody where no principal relief on foot – was it valid use of marriage or mat causes power? Also definition of “mat cause” in par (c)(iii) s 4 FLA and “child of marriage” in s 5 of FLA – HELD TOO WIDE (so defs amended to reflect judgment) Russell - Did Cth have power to prescribe to State Cts Re procedure re closed courts (NO); not robe (YES) Family Law Topic 1

Federal and State Powers in Family Law Vitzdamm-Jones (1981) – no “family law” power under the Aust Constitution Re F, Ex Parte F (1986) – “custody and guardianship” in para (xxii) confined to children of the marriage Cth v ACT (2013) at 55 – ‘marriage’ can include polygamous marriage so the juristic concept of marriage cannot be confined to a union having the characteristics described in Hyde v Hyde Family Law Topic 1

FLA Amendments 1976 that proceedings for maintenance, custody, property and injunctions had generally to be between ‘the parties to a marriage’ that ‘children’ had to be the natural or adopted children of both the spouses concerned that all property proceedings had to be in relation to concurrent, pending or completed proceedings for dissolution of marriage or one of the other forms of principal relief available under the Act Family Law Topic 1

FLA Amendments 1983 widening of the classes of person who can commence proceedings children to include ‘ordinary members of the household’ inter-spousal property proceedings at any time 1987 New Part VII - children Revised Part VIII - property Family Law Topic 1

FLA Amendments 1996 New Part VII - children Primary Dispute Resolution 2000 New Part VII Div 13A enforcement New Part VIIIA binding financial agreements Family Law Topic 1

FLA Amendments 2001 New Part VIIIB: Superannuation splitting 2003 Non-registration of parenting plans New Part VIIIAA: Orders against third parties 2005 Bankruptcy 2006 ‘Shared Parenting’ 2009 De Facto Relationships and other matters Family Law Topic 1

(b) State and Territory Powers Adoption Artificial Conception Care and Protection of Children Status of Children Crimes -Domestic and Personal Violence De Facto/Domestic Relationships Family Provision Wills, Probate and Administration of Estates Registration of Births, Deaths and Marriages Family Law Topic 1

Widening Federal Jurisdiction Accrued jurisdiction Referral of powers by States to Cth – eg. Over ex-nuptial children and de facto financial and other mearures Cross-vesting legislation ( but note limit imposed by Re Wakim) Family Law Topic 1

Accrued jurisdiction Really developed in the 1980s eg: Phillip Morris Inc (1981) – re claim under TPA and equitable action for passing off. Barwick CJ held : “….when a Ct which can exercise federal jurisdiction has its jurisdiction attracted in relation to a matter, that jurisdiction extends to a resolution of the whole matter…not limited to matter incidental to that aspect of the matter which has in the first place, attracted federal jurisdiction. It extends .. to the resolution of the whole matter between the parties. This accrued jurisdiction carries with it the authority to make such remedial orders as are necessary or convenient for or in consequence of that resolution. For this purpose, the court exercising federal jurisdiction may enforce rights with derive from a non-federal source” Family Law Topic 1

Accrued jurisdiction cont’d Stack v Coast Securities (1983) – Ct held at pg 475: Parliament had power under the Constitution to give authority to federal courts to decide the whole of a justiciable controversy of which a federal issue forms an integral part. The ‘single controversy’ must be distilled from the facts” Re Wakim (1999) – Ct said at pg 585: What is a single controversy ‘depends on what the parties have done, the relationship between or among them and the laws which attach rights or liabilities to their conduct and their relationships’. There is but a single matter if different claims arise out of “common substratum of facts’, notwithstanding that the facts upon which the claims depend ‘do not wholly coincide’. Family Law Topic 1

Re Wakim cont’d So, too , there is but one matter where different claims are so related that the determination of one is essential to the determination of the other, as, for example, in the case of third party proceedings or where there are alternative claims for the same damage and the determination of one will render the other otiose or necessitate its determination damage. Family Law Topic 1

Does Family Court have accrued jurisdiction? Smith and Smith (1986) – case stated to HCA –Whether in a s 87 maintenance agreement under the FLA, the Fam Ct had accrued jurisdiction to grant approval of a FPA release under the then Family Provision Act 1982 (NSW) Held: the purported release in the s87 agreement was not effective, notwithstanding itss approval by the Fam Ct, and the Fam Ct had no accrued jurisdiction to exercvise powers of approvsal as contained in the NSW Act. BUT see FamCAFC decisions eg. Warby (2001), Whitehouse(2009), Bergman (2009), Ruane(2012) Family Law Topic 1

(c) State Referral of Powers over Children 1986-90 (except WA) s51 (xxxvii) Constitution also note impact of s 109 Constitution Family Law Topic 1

(d) Cross-Vesting Legislation 3 GROUNDS for the transfer of proceedings from one court to another: i. where there is a related proceeding in the other court ii. where it is more appropriate that the other court determine the issue iii. where ... interests of justice that the proceedings be ... that the other court. Family Law Topic 1

(d) Cross-Vesting Legislation ISSUES ARISING: i. competence and resources of courts ii. single matter/ordinary jurisdiction of one court (eg former Practice Note 90/3) iii. primary matters and ancillary matters iv. multiple related matters 2 possible approaches - ‘proper approach’ - ‘convenient approach’ Family Law Topic 1

(d) Cross-Vesting Legislation Cross-vesting complimentary legislation: 1987 (Cth, NSW, VIC, SA, TAS, WA, NT) 1990 (QLD) 1993 (ACT) High Court Challenge: Gould v Brown (1998) 3:3 decision/it survives! Re Wakim; Ex Parte McNally (1999) 6: 1 decision … it dies (well partly anyway)! Note effect of Federal Courts (State Jurisdiction) Act 1999 Family Law Topic 1

(3) THE FAMILY LAW ACT 1975 Act is divided into many parts, including: IV the court V jurisdiction (not children) VI divorce/nullity VII children (& jurisdiction) VIII property orders and spousal maintenance VIIIA financial agreements VIIIB superannuation VIIIAA orders against 3rd parties VIIIAB de facto financial matters XIIIAA international agreements XIIIA sanctions for breach XIIIB contempt of court XIV injunctions Family Law Topic 1

Local Courts (courts of summary jurisdiction) (3) THE FAMILY LAW ACT 1975 (a) Part IV National Family Court Federal Circuit Court State Courts (WA only) Local Courts (courts of summary jurisdiction) Family Law Topic 1

(3) THE FAMILY LAW ACT 1975 (b) Registrars Part IV (Divisions 4 and 6) constitutionally valid because of judicial review procedures (ba) Federal Circuit Court court of record and of law and equity jurisdiction to hear divorces and ancillary relief (not nullity/ declaration of validity) - also see protocol for division of work between FCA and FCCA FCA and FCCA can transfer on own motion or by application – no right of appeal as to transfer Family Law Topic 1

Criteria for filing in FCA International child abduction International relocation Disputes whether case should be heard in Aust Special medical procedure ( eg gender reassignment/sterilisation) Contravention of FCA orders made in past year Serious allegation of child sexual abuse warranting referral to Magellan List / serious violence/serious physical abuse Complex questions of jurisdiction If final hearing likely to take more than 4 days Family Law Topic 1

(c) Courts of Summary Jurisdiction ss 39(2), 39(6) (3) THE FAMILY LAW ACT 1975 (c) Courts of Summary Jurisdiction ss 39(2), 39(6) s 46 limits property matters s 69J limits children’s matters Family Law Topic 1

(3) THE FAMILY LAW ACT 1975 (d) Principle to be applied by the Court (s 43) the need to preserve and protect the institution of marriage as the union ... to the exclusion ... voluntarily entered into for life; the need to give ... protection and assistance to the family as the natural and fundamental group unit ... for the care and education of ... children; Family Law Topic 1

(3) THE FAMILY LAW ACT 1975 (d) Principle to be applied by the Court (s 43) the need to protect the rights of children and to promote their welfare; and need to ensure safety from family violence; the means .. for assisting .. reconciliation or .. improvement Family Law Topic 1

declarations re marriage spousal maintenance property settlement (3) THE FAMILY LAW ACT 1975 (e) Matrimonial Cause (s 4) divorce and nullity declarations re marriage spousal maintenance property settlement bankruptcy re party to a marriage approval of maintenance agreements injunctions enforcement of maintenance agreement enforcement of overseas decrees ‘any other proceedings’ including enforcement financial agreement proceedings Family Law Topic 1

(3) THE FAMILY LAW ACT 1975 (f) Jurisdiction in matrimonial causes (s 39) (not children) either party is: an Australian citizen ‘ordinarily resident’ ‘domiciled’ (divorce only) or ‘present’ (all other applications) Family Law Topic 1

(3) THE FAMILY LAW ACT 1975 (g) Jurisdiction in children’s matters Pt VII Div 12 Subdiv C Family Court WA Court NT Supreme Court Courts of Summary Jurisdiction s 60F (child of a marriage) ss 69ZE-69ZK (ex-nuptial children) s 69ZK excludes child welfare laws Family Law Topic 1