Family law in Australia: overview

A Q&A guide to family law in Australia.

The Q&A gives a high level overview of key issues including jurisdiction and conflict of law; pre- and post-nuptial agreements; divorce, nullity, and judicial separation; children; surrogacy and adoption; cohabitation; family dispute resolution; civil partnership/same-sex marriage; and controversial areas and reform.

To compare answers across multiple jurisdictions visit the Family Country Q&A tool.

This Q&A is part of the global guide to family law. This contribution, in its original form, first appeared in Family Law (2nd edition), General Editor James Stewart of Penningtons Manches LLP.

Family Law was published in association with the International Academy of Matrimonial Lawyers.

For a full list of jurisdictional Q&As visit www.practicallaw.com/family-mjg.

Max Meyer, Meyer Partners Family Lawyers
Contents

Australia and conflict of law

Regulatory framework

1. What are the primary sources of law in relation to marriage, marital breakdown and the welfare of children and give a brief overview of which courts will have jurisdiction to hear the dispute?

Sources of law

Australia is a federation of states. The Constitution of the Commonwealth of Australia defines the powers allocated to the Commonwealth Government. Everything else is left to the states. The states can also, by agreement, delegate powers to the Commonwealth.

The Commonwealth and the states have passed a number of statutes. Australian courts also rely on case law.

Marriage. The Marriage Act 1961 of the Commonwealth of Australia (Cth) sets out the requirements for a valid marriage.

Domicile. The Domicile Act 1982 (Cth) and the state Domicile Acts largely codify the common law rules relating to domicile.

Marital breakdown and child welfare. The Family Law Act 1975 (Cth) (FLA), remains the primary source of law in relation to:

  • Breakdown of marriage.

  • Children within the jurisdiction.

The Act and regulations incorporate international treaty obligations to which Australia is a state party, such as the Convention of the Recovery Abroad of Maintenance and the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.

There are also state laws that apply specifically to child welfare but not parenting matters.

Finally, the Family Court of Australia (see below, Court system) has inherited the parens patriae jurisdiction previously found in the English Court of Chancery, which is the court's inherent jurisdiction to make orders for the benefit of, in this case, children (see Secretary, Department of Health & Community Services & JWB & SMB (1992) 175 CLR 218 (Marion's case) and ZP v PS (1994) FLC 92-480).

Court system

The Federal Circuit Court of Australia hears the majority of family law matters and divorces. Appeals and more complex cases are heard by the Family Court of Australia. Western Australia uniquely opted to enter into an agreement with the Commonwealth to set up its own state Family Court (see Eckett & Eckett [2010] FamCAFC39). That court still applies the FLA as the principal, although not the only source of its law (see above, Sources of law). Proceedings are open to the public but there is a prohibition on publication (section 121, FLA).

Australia is also a party to the 1996 Hague Child Protection Convention; and the courts have recently resorted to the convention. In late 2013 the Trans-Tasman Proceedings Act came into force specifically relating to proceedings and judgments between Australia and New Zealand.

Jurisdiction

2. What are the main requirements for local courts to have jurisdiction in relation to divorce, property and children proceedings?

Divorce

Proceedings for a divorce order can be instituted if, at the date on which the application is filed, either party to the marriage is one of the following (section 39(3), Family Law Act 1975 (FLA)):

  • An Australian citizen.

  • Domiciled in Australia.

  • Ordinarily resident in Australia, and has been resident for one year immediately preceding that date.

Australia recognises a domicile of origin, domicile of choice and domicile of dependence. Essentially a domicile of dependence applies now only to minors (see Question 3).

Ordinary residence refers to a person's voluntary place of abode and is a question of fact (Woodhead v Woodhead (1998) FLC92-813). In addition, ordinarily resident is defined to include habitually resident in the FLA (section 4(1), FLA).

Property

Proceedings in relation to property or spousal maintenance can be started in Australia if either party to the marriage, at the date on which the application is filed, is one of the following (section 39(4)(a)), FLA):

  • An Australian citizen.

  • Ordinarily resident in Australia.

  • Present in Australia.

Children

Proceedings may be instituted in Australia in relation to a child only if one or more of the following apply (section 69E, FLA):

  • The child is present in Australia.

  • The child is an Australian citizen or is ordinarily resident in Australia.

  • The parent of a child is an Australian citizen, is ordinarily resident in Australia or is present in Australia.

  • A party to the proceedings is an Australian citizen, is ordinarily resident in Australia or is present in Australia.

  • They accord with a treaty or arrangement enforced between Australia and an overseas jurisdiction, or the common law rules of private international law, giving the court the power to exercise jurisdiction in the proceedings.

Jurisdiction under the FLA is in personam and not in rem. Orders cannot be made against property itself but the FLA empowers Australian courts to exercise extra-territorial jurisdiction (see Gould v Swire Investments [1993] FLC 92-434).

Domicile and habitual residence

3. How do the concepts of domicile and habitual residence apply in relation to divorce, financial arrangements, and children?

Domicile

There are two fundamental assumptions (Radich v Bank of New Zealand (1993) 45FCR101):

  • That each person must have a domicile at all times.

  • That a person cannot simultaneously have more than one domicile for the same purpose.

The Domicile Acts recognise three kinds of domicile: domicile of origin, domicile of choice and domicile of dependence.

A person acquires a domicile of choice by being lawfully present in the country with the intention of remaining in that country indefinitely. Physical presence does not mean residence (Ferrier-Watson v McElrath (2000) 26FamLR169). The two elements of physical presence and intention must occur simultaneously. The subject's presence in the country must be lawful (Ah Yin v Christie (1907) 4CLR1428). Australian courts must in all cases apply the law of the forum (lex fori) to determine the concept of domicile (Re Annesley (1926) Ch692).

At common law, domicile of origin was never entirely displaced. If the subject acquired a domicile of choice, and abandoned it without acquiring a new one, then the subject would revert to domicile of origin. That rule has now been abolished by the Domicile Act (section 7) and the existing domicile continues until a new domicile is acquired.

A domicile of dependence is the domicile of a person who lacks the capacity to acquire a domicile for himself or herself, whose domicile is determined by reference to that of another person. At common law married women, minors and persons lacking necessary mental capacity fell into this category. The inclusion of married women does not require comment by this author.

Domicile of dependence survives in relation to minors whose parents have separated or died (section 9, Domicile Act 1982). The common law continues to apply to children who live with united parents, and their domicile is of their father. By statute, the child's domicile of dependence is otherwise governed by the parent with whom the child has his or her principal home. In respect of persons of unsound mind, the common law still applies. If the person is incapable of forming the intention to settle in a country indefinitely, his or her domicile remains unchanged so long as the incapacity persists.

Habitual residence

Habitual residence is considered as part of the concept of ordinary residence under the FLA (see Question 2, Divorce).

Habitual residence is also relevant to cases involving the Hague Convention on International Child Abduction. In Australian domestic law this is enacted in the Family Law (Child Abduction Convention) Regulations 1986.

The High Court of Australia recently said that in considering a child's place of habitual residence, there are a whole range of relevant matters to be considered, of which the intentions of the parties are but one (LK v Director-General, Department of Community Services (2009) 237CLR582). The High Court also said that the term "habitual residence" has not been defined but should be considered by reference to its ordinary meaning, including a wide variety of circumstances relating to where a person is said to reside and whether it is to be described as habitual. Intentions are also relevant to the circumstances of residence.

Though this is also referred to at 12.1, in Kemeny (1998) FLC 92-806 the Full Court of the Family Court held that Australia may be a clearly inappropriate forum to deal with one aspect of a case (property settlement and orders made by an overseas court) but still be an appropriate jurisdiction to deal with parenting matters or property located in Australia.

Australian courts also have power to grant anti suit injunctions restraining a party from starting or continuing proceedings in another jurisdiction so as to allow Australian proceedings to go ahead. However, an Australian court is not bound by a foreign court's anti suit injunction (see Kemeny (op.cit.)).

Conflict of law

4. What procedure applies for a party applying to stay proceedings in favour of a foreign jurisdiction? What factors do local courts take into account when determining forum issues?

Procedure

Australia applies its own law when determining jurisdiction (section 42, Family Law Act 1975). The High Court of Australia held in Voth v Manildra Flour Mills Pty Limited (1990) 171CLR358 that a stay of Australian proceedings should be granted if the local court is a clearly inappropriate forum, which applies if continuation of the proceedings in that court would be either:

  • Oppressive, that is, seriously and unfairly burdensome, prejudicial or damaging.

  • Vexatious, that is, productive of serious and unjustified trouble and harassment.

Factors

In determining whether the local court is a clearly inappropriate forum, legitimate personal or juridical advantage is a factor.

The principle in Voth was subsequently considered by the High Court in Henry v Henry (1996) FLC92-685, which affirmed that Voth applied equally to matrimonial proceedings, and that the onus lies on the party seeking a stay to establish that the chosen forum is clearly inappropriate.

The following principles can be derived from Henry v Henry:

  • No question arises unless the courts of the respective countries have jurisdiction.

  • If there is a question as to the jurisdiction of the foreign court, it may be necessary to adjourn the local proceedings for that question to be determined.

  • If both have jurisdiction it will be relevant to consider whether each recognises the other's orders:

    • if the orders of the foreign court are not recognised in Australia, generally a stay should not be granted;

    • if the orders of the foreign court are recognised in Australia, it will be relevant to consider whether any orders may need to be enforced in other countries and, if so, the relative ease with which that can be done.

  • Which forum can provide more effectively for complete resolution of the matter involved in the parties' dispute must be determined.

  • The following factors are regarded as relevant:

    • the order in which the proceedings were instituted;

    • the stage proceedings have reached;

    • the costs incurred;

    • the connection of the parties and their marriage with each of the jurisdictions;

    • the issues on which relief might depend in those jurisdictions;

    • whether, having regard to their resources and their understanding of language, the parties are able to participate in the respective proceedings on an equal footing.

In relation to applications regarding children, the paramount question concerns the best interests of the child and it is that test, and not the principles of forum conveniens that will apply (ZP & PS (1994) FLC92-480 and Pascarl & Oxley [2013] FamCAFC 47).

 

Pre- and post-nuptial agreements

Validity of pre- and post-nuptial agreements

5. To what extent are pre- and post-nuptial agreements binding?

In Australia, pre- and post-nuptial agreements are called financial agreements. Since 2001, people have been able to enter into binding financial agreements made before marriage, during marriage, or after a divorce order is made. These agreements can deal with:

  • Property interests.

  • Spouse maintenance.

  • Superannuation or pensions.

If all statutory requirements are complied with, these agreements are binding on the parties and exclude the jurisdiction of the Family Court to the extent that the agreements deal with all of the matters referred to. The relevant statutory provisions are (Family Law Act 1975 (FLA):

  • Sections 90B to 90D of the Family Law Act 1975, which set out the basic requirements for a binding agreement, together with further requirements, set out in sections 90DA, DB, and E to G.

  • Section 90K, which sets out the circumstances in which the court can set aside a financial agreement.

  • Section 90KA, which sets out the criteria for the validity, enforceability and effect of financial agreements.

A summary of the requirements is set out as follows (section 90G, FLA):

  • That the agreement be in writing.

  • That it is signed by all parties.

  • That, before signing the agreement, each spouse party was provided with independent legal advice about the:

    • effect of the agreement on the rights of that party;

    • advantages and disadvantages of that party in making the agreement.

  • That each legal practitioner provides a signed statement of advice.

  • That each spouse party receive a copy of the statement (but not the advice) given to the other.

A court can set aside a financial agreement if:

  • It was obtained by fraud.

  • A party entered into it to defraud a creditor or creditors, or with reckless disregard to the interests of a creditor.

  • The agreement is, for some reason, void or unenforceable or voidable.

  • In circumstances arising since the agreement was made, it is impracticable for the agreement to be carried out.

  • There has been a material change in circumstances since the making of the agreement, where:

    • that change relates to the care, welfare and development of a child of the marriage; and

    • as a result of that change, the child or the carer of the child being a party to the agreement will suffer hardship if the agreement is not set aside.

  • A party behaved unconscionably in the making of the agreement.

The court had found that it was necessary to comply strictly with the statutory requirements, and that the court can set aside an agreement because of a technical defect (Black & Black [2008] 38 FamLR 503). However, in January 2010, the Commonwealth government inserted a new provision to the effect that, if the agreement was signed and some of the mandatory criteria had not been met, but the court was satisfied it would be unjust and inequitable if the agreement were not binding, then the court can make an order declaring the agreement to be binding (section 90G(1A), FLA). The court is not concerned with the effect of the agreement but the circumstances in which it was made. In Hoult & Hoult [2013] FamCAFC 109 the Full Court found that parties will, other things being equal, be held to a bad bargain.

Many agreements were set aside however, some of those early decisions (for example, Cording & Oster [2010] FamCA 511, Pascot & Pascot [2011] FamCA 945, Suffolk v Suffolk (2) [2009] FamCA 917) may not be decided in the same way now, since the two Full Court decisions of Hoult & Hoult and Wallace v Stelzer [2011] FamCA54. There has been a renewed focus on unconscionability, not in relation to the bargain the parties made but in relation to the circumstances in which the agreement was executed. Part of that focus involves the need for full and frank disclosure. The proponent has the onus of establishing the agreement. However, that task is made easier as the Full Court has said that, for example, a party can rely on the statement of independent legal advice signed by one of the solicitors, unless there is evidence adduced by the other party that puts in issue the propriety nature and extent of that legal advice, an argument not readily available.

Moreover, more attention is now being paid to the ability to set aside an agreement if there is a material change in circumstances since the agreement was made, where that change relates to the care, welfare and development of a child of the marriage leading to hardship if the agreement is not set aside. As the life of these agreements can be very long, this ground may still have much life left in it.

 

Divorce, nullity and judicial separation

Recognition of foreign marriages/divorces

6. Are foreign marriages/divorces/civil partnerships recognised?

Marriages

Part VA of the Marriage Act 1961 came into effect in April 1986 and governs the recognition of foreign marriages. This ratified the Hague Convention on Celebration and Recognition of the Validity of Marriages of 1978.

A marriage is recognised as valid in form and substance if, at the time of the marriage, it was valid under the law of the land where the marriage was celebrated (lex loci celebrationis), with the following exceptions (sections 88D(2) and (3)):

  • If either of the parties was at the time of the marriage validly married under Australian law to another person.

  • If either of the parties was at the time not of marriageable age (if domiciled in Australia, 18 years old; if domiciled elsewhere, 16 years old).

  • If the parties were within prohibited relationships as defined under Australian law (see above).

  • If the marriage under Australian law would be void for lack of consent or mental incapacity.

Australia recognises as valid a marriage in a foreign country that would not otherwise be recognised under the previous provisions of the Marriage Act if that marriage is valid under the common law rules of private international law (section 88E(1), Marriage Act).

Divorces/annulment

Section 104 of the Family Law Act 1975 (FLA), based on the Hague Convention on Recognition of Divorces and Legal Separations 1 June 1970, provides recognition of any dissolution, annulment or legal separation provided either party had a specified connection with that foreign jurisdiction at the date the proceedings began that resulted in that decree.

The connection can be ordinary residence, domicile or nationality. Each of these concepts is discussed above.

As in the case of foreign marriages, section 104(5) of the FLA provides that any dissolution, annulment or legal separation recognised as valid under the common law rules of private international law, but not otherwise entitled to recognition shall still be recognised as valid in Australia.

Civil partnerships

Australia does not recognise civil partnerships unless the parties meet the geographical requirements for the court to make an order or declaration under the FLA in relation to the property of or spouse maintenance for the parties to that relationship. This is independent of the existence of an overseas civil partnership. Since this part of Australian law is founded on state law (not federal), no application under the FLA can be made by the party to a civil partnership unless:

  • One or both parties were ordinarily resident in an Australian state or territory when the application was filed.

  • Either:

    • one or both parties were ordinarily resident in that state or territory for at least one third of the relationship;

    • the party applying for such an order made substantial contributions to the relationship in one or more of the participating states or territories or the parties were ordinarily resident in a participating state or territory when the relationship broke down.

Divorce

7. What are the grounds for divorce?

Divorce

Firstly, divorce or principal relief is, in Australia, dealt with independently of other forms of matrimonial relief. Section 48(1) of the Family Law Act 1975 (FLA) provides that "an application under this Act for a divorce order in relation to a marriage shall be based on the ground that the marriage has broken down irretrievably".

Irretrievable breakdown of marriage is the only one ground of divorce, proved by living apart for 12 months. There is no concept of matrimonial fault.

While the parties must have lived separately for 12 months before filing a divorce application, there is no waiting time before the parties can apply for any other kind of matrimonial relief in relation to children, property or maintenance.

Nullity

An application for a decree of nullity must be based on the ground that the marriage is void. A marriage is void if:

  • It is bigamous.

  • The parties are too closely related.

  • The marriage was not a proper marriage ceremony in accordance with the Marriage Act.

  • The consent of either party was not a real consent by reason of:

    • fraud;

    • mistake as the identity of the other party or the nature of the ceremony, or mental incapacity; or

    • the party was too young to marry.

Most of these propositions are self-evident. Lack of consent for any of the above reasons will cause the Australian courts not to recognise a marriage contracted overseas, even if otherwise valid in accordance with the laws of the country in which it was contracted (section 88D(2)(d) Marriage Act 1961). The marriageable age for both sexes is 18 years old (section 11, Marriage Act).

Judicial separation

Though section 8(2) of the FLA abolished an application for judicial separation, a modern form of similar relief is found under section 114(2) of the FLA, where the court may issue an injunction relieving a party from any obligation to perform marital services or render conjugal rights.

Finances/capital and property

8. What powers do the courts have to allocate financial resources and property on the breakdown of marriage?

There are three possible ways in which a discussion of the courts' powers can be understood.

What are the court's powers, in the sense of what orders may it make?

The types of property orders the family courts can make are set out in section 80 of the Family Law Act 1975 (FLA). Those powers are comprehensive. Moreover, the courts have the power to make orders on an interim basis, including, importantly, the power to:

  • Order a party to make interim property settlement before a final hearing.

  • Make an order that a party provide a lump sum for the other party's legal costs and expert witness fees.

Since the decision in Strahan & Strahan (Interim Property Orders) (2009) FamCAFC166, orders that are specifically for interim costs have become less usual. In Strahan, the Full Court determined that it was necessary only to assess whether the applicant was likely to receive a property settlement in excess of what she was to receive in the interim and that the respondent had the capacity to pay and the applicant did not.

The powers of the family court extend to orders and injunctions. Section 114 of the FLA entitles the court to make orders:

  • For the personal protection of a party to the marriage.

  • Restraining a party to the marriage from entering or remaining in the matrimonial home.

  • In relation to the property of a party to the marriage and injunctions, whether interim or final, where it appears to the court to be just or convenient.

As the family court is a statutory court, it is a court of limited jurisdiction. However, even courts of limited statutory jurisdiction have been held to have implied powers (see DJL v The Central Authority [2000] FLC 93-015). These implied powers are for the court to make such orders as are necessary for them to exercise their statutory jurisdiction with justice and efficiency.

Against whom may such orders be made?

Orders can be made against the parties to a marriage. If one of the parties dies after proceedings have been started then the other party can continue the proceedings, and obtain an order against the deceased party's estate.

In December 2004, the FLA was amended to give the court wide powers to make orders against third parties. Before that date the court was very cautious about interfering with the rights of third parties as a result of Ascot Investments Pty Limited v Harper (1981) FLC 91-000. In that case, the High Court said that an order cannot be made if its effect is to deprive a third party of an existing right or to impose on the third party a duty which the party would not otherwise be liable to perform. There was an exception made in the case of the rights of that third party being only a sham, a device to allow a party to evade his or her obligations under the FLA. Such sham transactions can always be disregarded. Similarly, if a company were completely controlled by one party to a marriage, so that in reality an order against the company is an order against the party, the fact that in form the order appears to affect the rights of the company may not necessarily invalidate it.

The new sections 90AE to section 90AJ inclusive (comprised in Part VIIIAA), expand the reach of the family court's powers considerably but these powers can be exercised only in limited circumstances. Section 90AE(2) states that the court can make any order that either:

  • Directs a third party to do something in relation to the property of a party to the marriage.

  • Alters the rights, liabilities or property interests of a third party in relation to the marriage.

The strength and breadth of this law comes from section 90AC. If this law is inconsistent with any other Commonwealth or state law, or any trust deed or other instrument, Part VIIIAA overrides that provision.

There are some safeguards. Section 90AK prohibits the court from making an order if it would result in the acquisition of property from a person other than on just terms. The order must be reasonably necessary. Procedural fairness must be observed.

There is still considerable uncertainty about the reach of these provisions and there are some contradictions embodied within it, as discussed in Hughes-Kempe & Kempe & Ors (2005) FLC 93-237.

A more recent case has tested the limits of the third party provisions. In AC & Ors and VC & Anor [2013] FamCAFC 60, the Full Court of the Family Court, while overruling the trial judge in the particular circumstances, found no difficulty in principle with an order compelling the trustees of a trust to bring forward a vesting date of a trust where the court found that the beneficiaries had an irrevocable entitlement to share in the trust fund.

What property may be the subject of orders?

Section 4(1) of the FLA provides a definition of the word "property", which is already wide but has been expanded by recent cases. In relation to the parties to a marriage, it means property to which those parties are, or that party is entitled, whether in possession or reversion.

In a recent decision of Marlowe-Dawson & Dawson (2) [2014] FamCA 599, the court was asked to consider whether a husband's prospective salary constituted property. In W & W (1980) FLC90-872 the court determined that work in progress of a legal partnership was not property. In Perrett & Perrett (1990) FLC 92-101 the court determined that a right to future payments of weekly pension, that could neither be capitalised nor transferred, was not property. Following those decisions, the court in Marlowe-Dawson found that a future income stream did not constitute property.

 
9. What factors are relevant to the exercise of the court's powers?

In keeping with the decision in Ascot Investments & Harper, the Family Court has always been able to deal with the property of a sham structure, such as a company or trust, as though the property of that structure were the property of the parties or either of them.

Similarly, the court has also dealt with the property of a structure, be it a company or a trust, where that structure is no more than the alter ego of a party to the marriage. Specifically in the case of trusts, the family court has treated the property of a trust as the property of a party to the marriage if that party is the de facto or de jure controller of the trust, by reason of circumstance or by reason of his/her position as appointor, protector or controller.

In Kennon v Spry; Spry v Kennon 238 CLR 366, the High Court held within the definition of property in the FLA, the right of the wife as a beneficiary to require the due administration of a trust. If that right were removed from the wife, the family court could set aside the transaction as the husband had a fiduciary duty as trustee of the trust to consider whether and in what way the power should be exercised. To go even further, at least one judge of the High Court considered that the nature of the assets of the trust, having been acquired through the efforts of one party or both during the marriage, contributed to their being treated as the property of the parties to the marriage. Three judges of the High Court gave the widest interpretation possible to the family court's definition of property.

The court can also make orders in respect of property that does not exist. This may take a number of forms:

  • Assets that have been "wasted" (Kowaliw & Kowaliw (1981) FLC91-092).

  • A premature distribution by one party of marital property to a relative (Konitza & Konitza (2009) FamCACF171).

The extent to which the court adds back notional property has recently been discussed and may be curtailed (Sebastian & Sebastian (No 5) [2013] FamCA 191). It now appears to be more of a discretionary matter rather than the application of a formula.

 
10. What is the court's current position on the division of assets?

The courts' current position on the division of assets is set out in the Family Law Act 1975 (FLA) and substantial case law.

Sections 79 and 75(2) of the FLA

Sections 79 and 75(2) are the two main sections that deal with the division of assets.

  • Section 79. Section 79 has two key sub-sections. Section 79(2) states that "the court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order". Section 79(4) requires the court to take into account:

    • direct and indirect financial contributions by or on behalf of a party to the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage;

    • non-financial contributions, whether direct or indirect, by or on behalf of a party to the marriage towards the acquisition, conservation or improvement of the property of the parties to the marriage;

    • contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent;

    • the effect of any proposed order on the earning capacity of either party;

    • matters referred to in section 75(2) of the FLA.

  • There are other sub-sections of minor relevance.

  • Section 75(2). The matters referred to in section 75(2) are compendious. To some degree, where section 79(4) refers to past contributions, section 75(2) refers to present or prospective factors, such as the:

    • future earning capacity of each party, their financial commitments, standard of living that is and was reasonable for them;

    • duration of the marriage and the extent to which it affected the earning capacity of a party;

    • need to protect a parenting role of a party;

    • financial circumstances of any subsequent cohabitation of a party and other similar matters.

Case law

In the decision of the High Court of Australia in Stanford v Stanford (2012) FLC 93-518, there was renewed emphasis on the need to make only an order that is just and equitable. At the time it appeared to have introduced a significant change in the way that assets were divided on the breakdown of relationship. However, because the facts in Stanford were representative of a narrow class of cases, the changes were less real than apparent. Before the High Court’s decision in Stanford there were four steps involved:

  • Identify and value the asset pool.

  • Assess the contributions.

  • Take into account the matters referred to in section 75(2) of the FLA.

  • Determine whether the orders are just and equitable (Coghlan & Coghlan (2005) FLC 93-220 and Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervenor) (2003) FLC 93-143).

The High Court in Stanford emphasised that the requirement to make a just and equitable order was a separate, preliminary and distinct requirement. It did not otherwise confirm the four-step approach. One thing is clear from the High Court's judgment and that is that the first task is to identify, according to common law and equitable principles, the existing rights of the parties in whatever property in the broadest sense exists, and then and only then to determine whether it is just and equitable to make any order, not just the particular order.

It now seems that the court will consider not making any property settlement order if:

  • The parties kept their financial affairs separate.

  • The relationship was very short.

  • There was a pre-nuptial agreement that is not necessarily valid under Australian law and the parties adhered to it.

  • The parties ordered their property relationship in a way that is consistent with their current legal and equitable ownerships.

In the more recent case of Bevan and Bevan (2013) FLC 93-545, the Full Court of the Family Court provided guidance on the implications of the decision in Stanford. The Full Court referred to three fundamental propositions:

  • The court had to identify existing property interests as determined by common law and equity.

  • The court's discretion must be exercised in accordance with legal principles and must not proceed on the assumption that the parties' interests are or should be different from those determined by common law and equity.

  • It was impermissible to conflate the notions set out in section 79(4) without a separate consideration of section 79(2). Addressing what order was just and equitable was a separate issue to what was required by section 79(4) and the four step process. This allowed the court to accommodate any mutual understanding between the parties as to how their property interests should be arranged after separation.

Otherwise, it is clear that the requirements of section 79(4) of the FLA will continue to operate.

There is no principle that equality of outcome is either a starting or finishing point in the evaluation of contributions, even where assets are built up by the joint efforts of the parties to a marriage over a significant period of time, for example, the High Court of Australia decision in Mallet v Mallet (1984) FLC 91-507. However, the same decision is authority for the proposition that a non-income earning spouse must have just and equitable treatment by the recognition of her or his contribution in a real and substantial way, not in a token way.

An approach in keeping with the principle enunciated by the High Court is that which refers to special or extraordinary contributions by the exercise by one of the parties of an entrepreneurial skill or an extraordinary or special skill.

In Ferraro & Ferraro (1993) FLC 92-335, by the exercise of the husband's business acumen and entrepreneurial skill, assets worth approximately A$12 million were generated. The court found that this was an extraordinary contribution. Where the exercise of special skills produces assets in the "normal range", the contributions would normally be regarded as equal; in this case the husband's contributions were valued at 62.5%.

In the then leading case of JEL & DDF (2001) FLC 93-075, the asset pool of A$44 million was divided by the Full Court as 72.5% to the husband and 27.5% to the wife on the basis of the same general principles.

The decision was repeatedly and strongly criticised, for example, by a differently constituted Full Court in Figgins & Figgins (2002) FLC 93-122. It can no longer be regarded as an authoritative statement of the law.

The factors identified in section 75(2) comprise the third phase. Although the Full Court has criticised this approach, in general, adjustments for these factors tend to be in a much narrower range than those for the factors identified under section 79(4) as contributions (see Clauson & Clauson (1995) FLC 92-595).

While previous cases referred to contributions that were "special" or "extraordinary", in the big money case of Smith & Fields [2012] FamCA 510, the judge rejected the notion of such special contributions, while at the same time rejecting the notion of a marital partnership with its implication of equality of outcome. He referred to and found the husband's contributions of ingenuity and stewardship to be superior in nature. This decision was appealed to the Full Court of the Family Court, however as at the date of writing the Full Court decision has not yet been delivered.

Further consideration to this issue has more recently been given in the case of Kane v Kane [2013] FamCAFC 205. The Full Court of the Family Court explicitly rejected the "special skills" doctrine and stated that any cases using the principle should no longer be regarded as binding. Whether, and if so to what extent, this will change the approach of the court to the assessment of contributions remains to be seen. The earlier remarks of Australia's highest appellate court, rejecting the principle of equality of outcome, remain binding.

The Full Court has also recently considered the "special skills" argument in Hoffman & Hoffman [2014] FamCAFC 92. The Full Court's have adopted with approval the phrase by O’Ryan J in D & D (2005) FamCA 1462 that "the notion of special contribution has all been a terrible mistake…". It would seem as though we are now at the end of that particular line of authority and even if the Full Court dealing with the appeal in Smith & Field is differently constituted, that appeal decision seems unlikely to favour the doctrine of special skills.

Finances/maintenance

11. How does ongoing spousal maintenance operate following marital breakdown?

Section 72 of the Family Law Act 1975 (FLA) provides that a party to a marriage is liable to maintain the other party if, and only if, the other party is unable to support herself or himself adequately, and then only if the first party is reasonably able to do so.

The court can make orders for periodic payments or for a lump sum. "Adequately" refers to the standard of living that the couple enjoyed when they were together. It does not mean mere subsistence. The court takes into account all of the matters set out in section 75(2) of the FLA (see Question 10, Sections 79 and 75(2) of the FLA). Spousal maintenance can be ordered on an interim or final basis.

 
12. Is it common for maintenance to be awarded on marital breakdown?

In most Australian states, there is often between one year and two years for cases to come to trial. It is also often the position that one party to the marriage controls the purse strings. In these circumstances, it is very common for the court to order interim maintenance, that is, an order for maintenance until the time of the final hearing.

However, it is less common for maintenance orders to be made on a final basis as part of an application for final property settlement. There is therefore a disjunction between case law and practice. As early as 1986, the Australian Institute of Family Studies reported that long-term maintenance was being ordered, or agreed on in only 6% of the couples it surveyed. Later studies have found similar results. In part this is because the philosophy of a clean break is embodied in section 81 of the FLA. The court must make such orders as will finally determine the financial relationship between the parties to the marriage and avoid further proceedings between them, so far as practicable.

Another factor may be the court's reluctance to order different financial provisions, rather than building on the same factors. In ordering property settlement, the court takes into account prospective matters under the heading of section 75(2) of the FLA and it is that same section that provides many of the indicia for maintenance orders.

 
13. What is the court's current position on maintenance on marital breakdown?

The tendency in the early to middle 1990s was for a spate of maintenance orders made at final hearings for relatively long periods. The courts were influenced by a landmark Canadian decision and social research on the feminisation of poverty (Moge v Moge (1992) 43 RFL (3d.) 345).

In Mitchell & Mitchell (1995) FLC92-601, the Full Court established that the purpose of spousal maintenance was to compensate for economic disadvantage.

It may be noted that this does not appear in Australian legislation. In fact little has changed as an expression of the law since Bevan & Bevan (1995) FLC92-600 laid down the following principles:

  • There must be a threshold finding that the applicant has a need and the measure of that need is a variable factor.

  • The order must be reasonable and based on the various criteria in section 75(2) of the Family Law Act 1975.

  • There is no principle that a party should automatically support the other at a pre-separation standard of living when an order for post separation spousal maintenance is made simply because that party has the means to do so.

  • The court can exercise its discretion based on what is reasonable and adequate.

Even in those cases where the facts create an anticipation of spousal maintenance, with a small asset pool and one party having a large income, maintenance orders are still rare (Best & Best (1993) FLC92-418).

New cases tend to emerge from unusual situations. In Brown v Brown (2007) FLC93-916, a husband had transferred out of his name all of his Australian assets, refused to come to Australia, had assets of about (by that time) A$150 million and an annual income of at least A$1 million. The trial judge made an order for lump sum spousal maintenance of A$3.75 million, reduced on appeal to A$2.25 million. It is difficult to avoid the view that this case represents an aberration, and, while there is no inconsistency of principle, it seems more borne of circumstance than any change to the way in which maintenance is addressed. However, it may herald a trend.

Pre and post-nuptial agreements can deal both with property settlement and spousal maintenance. There are technical requirements in order to exclude any spousal maintenance application that are even more stringent than in relation to property settlement.

In Adamidis v Adamidis (2009) FMCA Fam1104, the wife applied to set aside a financial agreement, excluding both property and maintenance rights. She failed as to property settlement, but succeeded as to spousal maintenance. The husband then applied for lump sum spousal maintenance. This decision may represent not a principled approach to the issue of spousal maintenance but an opportunistic one dictated by the circumstances of the individual case.

Child maintenance

14. On what basis is child maintenance calculated?

In most instances, provision of financial support for children is determined by a child support assessment instead of an order of a court for child maintenance.

The Child Support Agency (CSA) was formed to assist separated parents to take responsibility for the financial support of their children. The CSA administers the Child Support Scheme.

The Child Support (Assessment) Act 1989 introduced a formula for the administrative assessment of child support. The scheme involves the assessment of child support in accordance with a formula, as well as the collection and enforcement of court orders, child support agreements and child support assessments.

From 1 July 2008, new formulae apply for the purpose of calculating child support. There is a basic formula, and then formulae that take into account more unusual family circumstances. Features of the basic formula include:

  • Use of an "income shares" approach to calculate and share the costs of children. This concept uses a parent's share of the income available to support a child as an indication of their ability to meet the costs of the child. The costs of the child are divided between the parents according to their share of the combined child support income.

  • Both parents having the same self-support amount. The self-support amount is the amount deducted from the parent's adjusted taxable income for their own support. The amount is the same for both parents as indexed each year.

  • The percentage of care each parent provides.

  • Recognition of the costs of contact as a contribution to the costs of the children.

  • Treating the children of first and second families as equally as possible by using the actual costs of the children from the second family in determining the child support payable (rather than a flat increase).

In the majority of cases the rate of child support is assessed using the basic formula. This applies to all assessments after July 2008. It is beyond the scope of this work to detail all the other formulae. The CSA has an online estimator on its website to assist parties to calculate the support payable.

Parents can object to particular decisions made under the Child Support (Assessment) Act. Avenues of review are both administrative and judicial.

Reciprocal enforcement of financial orders

15. What is the legal position on the reciprocal enforcement of financial orders?

Common law

The legal position on the reciprocal enforcement of financial orders at common law is as follows:

  • The foreign court must have had jurisdiction over the defendant, either by the presence of the defendant in that jurisdiction or by voluntary submission to it.

  • The foreign judgment must be final.

  • The plaintiff and defendant in the foreign judgment must be identical to the parties to any proceedings in Australia.

  • A judgment can only be enforced if it is for a fixed sum of money.

A number of defences exist, among them that the original judgment was obtained by fraud or is contrary to the public policy of Australia.

Suing for recognition and enforcement at common law requires the proceedings to plead the foreign judgment; the foreign judgment cannot simply be registered.

However, for family law matters, the long-held view is that an order for property settlement must be ancillary to a divorce decree and the recognition of the property settlement order depends on the recognition of the decree for divorce (see Question 6, Divorces/annulment).

Statute

The Foreign Judgments Act 1991 permits registration of judgments in Australia by reciprocal arrangements with certain nominated courts in approximately 30 countries and provinces. While at common law foreign decrees for property settlement were held to be judgments in personam, under the Foreign Judgments Act 1991, by statutory definition judgments in family law matters are not judgments in personam but fall into a third category.

Such a judgment is entitled to recognition in Australia if the foreign court exercised a jurisdiction which would have been entitled to recognition under the law of Australia.

If the proceedings in the foreign court were contrary to a choice of forum agreement between the parties, the judgment will not be registered.

If the proceedings giving rise to the judgment were ancillary to divorce proceedings then they will probably be recognised and registrable in Australia. The judgment must be final and conclusive and for a fixed sum.

Australia is not party to any international agreement or convention governing the recognition and enforcement of orders in relation to property settlement between spouses. Australia is party to the bilateral treaty for the reciprocal recognition and enforcement of judgments in civil and commercial matters 1994 with the UK. However, it is not party to the Hague Convention on Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters 1971.

Spousal maintenance

Australian law provides for the registration and enforcement in Australia of maintenance orders made in certain overseas countries. The Child Support Regulations permit the enforcement of both spousal and child maintenance obligations that arise overseas.

An Australian court can vary an overseas spousal maintenance order in two ways:

  • If the overseas order comes from certain countries, and the order is registered in Australia, the court can vary the order or discharge it.

  • In respect of certain other countries, the Australian court can only provisionally vary the overseas order. The variation must be confirmed by the country in which the order was originally made. Unless the overseas order is registered in Australia, no Australian court can vary or discharge the overseas order.

  • Under the UN Convention on the Recovery Abroad of Maintenance (UNCRAM), child support and spouse maintenance are, except in the case of variation, registered and administered by the Australian Child Support Agency rather than through the courts. The general principle is that a maintenance liability should be made and administered in the country in which the payee lives, and that the country in which the payer lives should be responsible for the collection of support. An application for review or variation still attracts court jurisdiction.

Australia is party to an agreement with New Zealand on spousal maintenance, to the Hague Convention on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations, and to an agreement with the US for the Agreement for the Enforcement of Maintenance (Support) Obligations, as well as to the United Nations Convention on the Recovery Abroad of Maintenance (UNCRAM). The general thrust of these arrangements is in respect of enforcement but, in respect of the treaty with the US, permits variation (in general terms). UNCRAM has limited availability of review or variation but only through the courts.

Financial relief after foreign divorce proceedings

16. What powers are available to the court to make orders following a foreign divorce?

Australian courts still have jurisdiction to entertain an application for financial relief after the making of a foreign divorce if one of the jurisdictional facts referred to below is established.

If the foreign divorce proceedings or any aspect, whether principal, ancillary or parenting proceedings, are current and undetermined, there is likely to be argument as to whether Australia is a clearly inappropriate forum for the determination of the Australian application (see below).

If there are no current foreign proceedings and the court determines that Australia is not a clearly inappropriate forum to determine the issues, then an Australian court can, in certain circumstances, deal with some aspects of financial relief.

In Pagliotti & Hartner (2009) FLC 93-393, the Full Family Court dealt with an application by the wife to deal with property in Australia, despite the fact that the husband and wife had litigated already after the breakdown of their marriage in the Roman Tribunal. The Full Court determined that Australia could grant an order altering the interests of the parties in the Australian property. The Roman proceedings did not have the power to make orders in relation to property outside Italy. Nonetheless, it was submitted by the respondent that, apart from forum issues, the application was res judicata or there was an estoppel.

The Full Court accepted that there was no identity of proceedings between Australia and Italy because the:

  • Ownership of the Australian property was not determined in those proceedings.

  • Australian proceedings were different in kind and raised different issues from the Italian proceedings.

  • Italian proceedings were primarily concerned with spousal maintenance and not property settlement.

The Full Court, therefore, determined that there was neither res judicata nor estoppel.

Pagliotti & Hartner was followed by Chen & Tan [2012] FamCA 225 and established that once Australian jurisdiction is invoked, Australia applies its own law and can adjust the rights of parties in property located overseas regardless of the rights of those parties under foreign law.

It seems that in limited circumstances parties who can establish jurisdiction in Australia can maintain proceedings for financial relief, even if orders for a divorce and orders for financial relief have been made in a foreign court. In most cases, the forum conveniens or oppression arguments will be the most daunting obstacle.

 

Children

Custody/parental responsibility

17. What is the legal position in relation to custody/parental responsibility following the breakdown of a relationship or marriage?

Until any court orders to the contrary, both parents have joint parental responsibility for their children. The paramount consideration in any decision concerning children is their welfare or their best interests.

  • The main object of the Family Law Act 1975 (FLA) is to ensure the children receive help to achieve their full potential and to ensure parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of the children.

  • Parental responsibility can be altered by the court. It can be altered both wholly, so that one party has the sole responsibility to make long term decisions for the children, or partially so that some aspects of parental responsibility are shared and other aspects, for example education, might be given to one parent and not the other.

  • There is a presumption that it is in the best interests of the children for parents to have equal shared parental responsibility. This does not apply if there is abuse or domestic violence or it is not in the best interests of the child.

 
18. What is the legal position in relation to access/contact/visitation following the breakdown of a relationship or marriage?

If there is shared parental responsibility or that question is in dispute, the court must consider whether the children spending equal time with each parent is in their best interests and reasonably practicable. If it is not, the court must then consider whether a child spending substantial and significant time with each parent is in the child's best interests and reasonably practicable. "Substantial and significant time" is referred to in the Family Law Act 1975 to include:

  • Weekends, holidays, weekdays.

  • Time that allows each parent to be involved in the child's daily routine.

  • Occasions and events of particular significance both to the children and to the parents.

As to what is practicable, the court looks at the distance between the parents' homes, the parents' actual and future capacity to do what they say they want, their communications, the impact of the proposed arrangement on the children and other matters.

In all of this there are primary considerations:

  • The benefit to the children of having a meaningful relationship with both parents.

  • The need to protect the children from harm. Greater emphasis is now placed on need to protect from harm and domestic violence. It is an issue of increased significance and expanded meaning.

Additional considerations include:

  • The wishes of the children.

  • The relationship of the children with each parent and others.

  • The attitudes of parents to the children and their parental responsibilities.

  • The need to make an order least likely to lead to further litigation.

It is worth noting, that unless there are exceptional circumstances, the parties cannot take parenting proceedings without first attempting to resolve their parenting disagreement with a counsellor called a family dispute resolution practitioner.

International abduction

19. What is the legal position on international abduction?

Australia is a party to the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention). Article 5(a) refers to the term "rights of custody". Australia has abandoned the words "custody" and "access" in family law matters but section 111B(4) of the Family Law Act 1975 was enacted to resolve doubts about the implications of those changes for Convention purposes. In short:

  • Each parent is regarded as having a right of custody unless that parent has no parental responsibility for the child because of any court order.

  • Subject to any court order, a person with whom a child is to live or who has parental responsibility for a child under any parenting order has a right of custody.

  • A person who is responsible for the day-to day-care, welfare and development of a child has a right of custody, subject to any court order.

  • A person with whom a child is to spend time or with whom a child is to communicate under any court order is regarded as having a right of access.

The applicant under a Hague Convention case must establish that the child was habitually resident in one Hague contracting state and then wrongfully removed to, or retained in, a different contracting state. Therefore, determination of habitual residence is central.

The High Court of Australia in LK v Director General, Department of Community Services (2009) HCA 9 held that "the relevant criterion is a shared intention that the children live in a particular place with a sufficient degree of continuity to be properly described as settled". This differs from mere physical presence and intention and is focused on what each parent intends for the child. The court declined to identify a set of criteria that bear upon a child's habitual residence or to settle a hierarchy of importance. This decision has been criticised as giving too much weight to parental intentions that may, in some respects, be uncertain or difficult to interpret.

In relation to the acquiescence defence, Department of Community Services & Frampton (2007) FamCA 450 determined that a finding of acquiescence to a change of habitual residence requires "clear and unequivocal evidence of acquiescence and/or evidence of circumstances which were wholly inconsistent with a request for summary return".

In relation to the grave risk of physical or psychological harm defence (or "intolerable situation defence"), the Full Court in Murray & Director-General of Family Services (1993) FLC 92-416 ordered the return of children to New Zealand, despite the high risk that they may be exposed to domestic violence at the hand of the parent left behind because the returning parent and children could be protected by the New Zealand courts and authorities.

Thus, as in Gsponer v Director General Department of Community Services (VIC) (1989) FLC 92-001, the return of the child to a harmful or intolerable situation is determined in the context of the place, not the parent left behind. In DP & Commonwealth Central Authority; JLM v Director General NSW Department of Community Services (2001) 206CLR 401, the High Court of Australia stated that the grave risk defence requires clear and compelling evidence.

In Gernish-Grant v Director General Department of Community Services (2002) FLC 93-111, two judges of the Full Court referred to Friedrich v Friedrich 78F2d1060 (6th Circuit 1996), a decision of the US Court of Appeal. This effectively confirmed the focus on risk from the country to which the child is to return, but raised the second category of a grave risk of harm in cases of serious abuse or neglect or extraordinary emotional dependence, coupled with the incapacity or unwillingness of the court in the country of habitual residence to give the child adequate protection. In Director General Department of Community Services v Harris (2010) 43FamLR 170, the grave risk of harm test was applied.

In relation to the "mature child objects to return" defence:

  • "Objects" must refer to a child's objection to being returned to the country from which he or she was removed, not the parent's.

  • The objection must show a strength of feeling beyond mere expression of a preference.

  • There is no strict rule requiring the child to be a certain age, 12 years old is a rule of thumb.

  • Where there are siblings, an older sibling's objection may override the objection of a younger.

The public policy defence requires evidence that the fundamental principles of the requested state do not permit the return, rather than mere incompatibility with those principles should the child be returned (see McCall & McCall; State's Central Authority; Attorney General of the Commonwealth (1995) FLC 92-551).

The best interests of the child have no place in the application of the Hague Convention in Australia (see De L v Director General, NSW Department of Community Services (1996) 187CLR 640). However, in relation to the return of a child to a non-Hague Convention country, and subject to earlier comments in relation to jurisdiction and forum conveniens in parenting matters, the best interests of the child determine the outcomes.

Leave to remove/applications to take a child out of the jurisdiction

20. What is the legal position on leave to remove/applications to take a child out of the jurisdiction? Under what circumstances can a parent apply to remove their child from the jurisdiction against the wishes of the other parent?

The Family Law Act sets out the core values:

  • To ensure children receive help to fulfil their full potential and parents fulfil their duties and responsibilities.

  • Unless the court otherwise orders, both parents have joint, shared parental responsibilities, equal obligations and responsibilities towards the children and the right to be equally involved in decisions about the long term welfare of the children.

  • There is a presumption that it is in the best interests of the children for the parents to have equal shared parental responsibility.

  • Where there is shared parental responsibility, or it is in dispute, the court must consider whether the children spending equal time with each parent would be in their best interests and reasonably practicable.

  • If, having considered the issue, the court believes it is not in each child's best interests to spend equal time with each parent, the court must then consider whether each child spending "substantial and significant time" with each parent is in the best interests of the child and reasonably practicable. In determining whether it is reasonably practicable for each child to spend equal time or substantial and significant time with each parent the court will consider:

    • how far the parents live from each other;

    • the ability of the parents now and in the future to implement an arrangement for the children spending equal time, or substantial and significant time with each parent;

    • communication issues between the parents;

    • the fact the children's best interests are paramount;

    • the impact of the arrangement on each child.

There is a range of subsidiary factors, but the above can be stated as the core objectives.

Very clearly, there is no presumption in favour either of a mother or of a parent with whom a child has lived predominantly. Given the core value of at least substantial and significant time, it is surprising that there are any successful relocation applications, especially where the distances are substantial (as, even within Australia, they often are). Yet there has been a plethora of such cases, as the mobility of Australia's population continues to grow nationally and internationally, and it is unlikely that this will change. Courts have repeatedly said that freedom of movement is subordinate to the best interests of children (U v U [2002] HCA 36).

The leading case is now MRR v GR which has been followed many times, for example in Saver v Radcliff & Anor [2012] 48 FamLR 298. The court in MMR V GR stated that the legislation "obliges the court to consider both the question of whether it is in the best interests of the child to spend equal time with each of the parents and the question of whether it is reasonably practicable that the child spend equal time with each of them". However, the best interests of the children are not the sole consideration. There is no need for the applicant to show compelling reasons before an order will be made: neither party bears an onus. The reasons for a parent wishing to relocate with a child are only one of the matters and should not be dealt with as a separate issue. The judge must identify the competing proposals and evaluate them as to advantages and disadvantages relative to the best interests of the child.

While this decision charts a logical path for judicial officers, it does not seem to necessitate any new approach. The court looks at the:

  • Existence of family networks in the place of relocation or the lack of them in the place from which relocation is sought.

  • History of the residence of the parents and the child.

  • Ability of the relocating parent to obtain employment.

  • Financial considerations.

  • Child's wishes and whether or not the relocating parent's reasons for leaving are held in good faith or constitute an attempt to undermine the relationship between the child and the other parent.

 

Surrogacy and adoption

Surrogacy agreements

21. What is the legal position on surrogacy agreements?

The law relating to surrogacy is not federal but state based. However, to all practical effect, the law in Australia is uniform in relation to surrogacy agreements. When a surrogate mother undergoes donor insemination and utilises her own ovum to conceive the child, this is known as traditional surrogacy; gestational surrogacy is the harvesting of the ovum from a third person or one of the intended parents depending on the circumstances, and fertilising it using the sperm donated from the intended parent or a third person.

Altruistic surrogacy arrangements are privately organised and legal in all Australian states. There is a restriction in the Australian Capital Territory that the intending parents to an altruistic surrogacy arrangement must be a couple and there must be two birth parents who consent to the relinquishment of the child to the intended parents.

In South Australia altruistic surrogacy is legally available only to heterosexual relationships. In Western Australia altruistic surrogacy is available to only married, cohabiting couples, or single women but not to same-sex couples.

The legislation in most states and territories indicates hasty drafting, and as a result anomalies can arise. For example, due to the disparities between the laws of the varying jurisdictions, problems can occur if the intended parents live in a different jurisdiction to the surrogate parents or the child is born in a jurisdiction other than the one in which the procedure was undergone.

Commercial surrogacy is outlawed in all states of Australia except for the Northern Territory, which has no surrogacy regime. Three jurisdictions impose extra-territorial criminal sanctions for those who engage in commercial surrogacy overseas and return with the child.

Adoption

22. What is the legal position in relation to adoption? Is adoption available to individuals and cohabiting couples (both heterosexual and same-sex)?

The law in relation to adoption in Australia, if inter country children are involved, is controlled by each state and territory and also by federal law. The relevant federal law is contained in the:

  • Migration Act 1958.

  • Family Law Act 1975.

  • Australian Citizenship Act 2007.

Australia is also a party to the Hague Convention of Intercountry Adoption, and has enacted domestic legislation accordingly. The controls are strict.

While adoptions within Australian states depend in part on federal law, each state and territory has its own law and the laws differ. An adoption legal in an Australian jurisdiction is recognised in every other Australian jurisdiction.

The criteria for prospective adopters are:

  • Ages and the longevity of their relationship.

  • Health, including emotional and physical health.

  • Life experience.

  • The stability and security of their emotional and physical environment.

  • Financial circumstances.

  • Capacity to maintain the child's cultural identity and religious faith, if any.

  • Appreciation of the need to facilitate or retain contact with birth parents and family of the child.

  • Parenting history.

In most Australian jurisdictions it is possible for one person to adopt a child but the circumstances must be exceptional and the rules are very restrictive.

In five of the seven Australian jurisdictions, heterosexual cohabiting couples can adopt on the same basis as heterosexual married couples.

Same-sex cohabiting couples can adopt in five Australian jurisdictions:

  • Victoria.

  • New South Wales.

  • Western Australia.

  • The Australian Capital Territory.

  • Tasmania.

They cannot currently adopt in the Northern Territory, South Australia and Queensland.

 

Cohabitation

Cohabitation

23. What legislation (if any) governs division of property for unmarried couples on the breakdown of the relationship?

Until December 2008, each Australian state and territory had its own legislation dealing with cohabitants. However, all but two Australian states referred their powers over this area to the Commonwealth, which passed the Family Law Amendment (De Facto Financial Matters and Other Measures) Act. Since the Act came into effect on 1 March 2009, in the referring states, the rights of cohabitants equal those of parties to a marriage (with minor exceptions).

The Family Law Act 1975 (FLA) now defines the relationship of cohabitation, referred to as a de facto relationship. A person is in a de facto relationship with another person if:

  • The persons are not legally married to each other.

  • The persons are not related by family.

  • Having regard to all the circumstances of their relationship, the persons have a relationship as a couple living together on a genuine domestic basis.

The FLA applies equally to relationships of opposite sexes and the same sex. A financial application may be brought provided it is made within two years of the end of the de facto relationship (section 44(5), FLA). The Act applies to those relationships that broke down after 1 March 2009. So far as the referring states are concerned, therefore, there is limited use in discussing the pre-amendment position of cohabitant couples.

The South Australian legislation is the Domestic Partners Property Act 1996. It also applies to same-sex and heterosexual relationships. The Western Australia legislation is the Family Court Act 1997. It also applies to same-sex or heterosexual relationships.

There are differences in detail between the legislation of these two states and also between these two states and the legislation that, before the Commonwealth assumed powers, prevailed in the other states.

The significant differences between the rights of cohabitants under the former legislation and the legislation in the two non-referring states, and the rights of those that fall under the FLA, reside chiefly in the subsidiary criteria for property adjustment and the rules governing maintenance of one of the parties to the relationship.

In both the FLA and the de facto legislation for cohabitants, the overriding criterion is justice and equity. However, where the FLA refers to the prospective factors set out in section 75(2) (see Question 10, Sections 79 and 75(2)), there is no such reference to those factors in the de facto laws that applied and still apply.

This worked significantly to the disadvantage of that partner to such a relationship who was at an economic disadvantage, having most likely made lesser financial contributions during the relationship and having no compensation from the court for ongoing economic disadvantage after the relationship ended, whether because of a commitment to the relationship or not.

In addition, orders for spousal maintenance are greatly attenuated, being usually rehabilitative and always for a brief period.

The Western Australia statute contains no such limitation and its provisions mirror those of the FLA.

 

Family dispute resolution

Mediation, collaborative law and arbitration

24. What non-court-based processes exist to resolve disputes? What is the current status of agreements reached through mediation, collaborative law and arbitration?

Mediation, collaborative law and arbitration is available in Australia. The popularity and frequency of the use of each vary from state to state and from place to place. Both mediation and collaborative law are gaining in popularity. Arbitration is not common. In addition, particularly in relation to parenting matters, family dispute resolution is available and frequently used.

However, agreements reached by these means, with the one exception that follows, have no legal status unless subsequently made into, or registered as, court orders. For example, an award of an arbitrator, if registered in court, has effect as if it were a court order.

The exception is in relation to parenting matters, where parties can conclude a parenting plan. It must be in writing, signed by the parents and dated. Lawyers must inform clients that they can consider a parenting plan and provide advice on where they can be helped to develop one. However, a parenting plan does not bind a court nor is it enforceable. At best, a court will have regard to its terms.

 
25. What is the statutory basis (if any), for mediation, collaborative law and arbitration?

Arbitration has a statutory basis (section 13E, Family Law Act 1975 (FLA)). A court in relation to financial proceedings can order referral to arbitration with the consent of the parties but not otherwise. In a general sense, neither mediation nor collaboration, except as set out below, has a statutory basis. The court refers all cases to court-sponsored mediation during the course of any proceedings. However, in parenting matters, with some exceptions, it is mandatory that parties attempt family dispute resolution with a registered family dispute resolution practitioner before being entitled to start court proceedings. Only if the practitioner provides a certificate that the parties have done so and failed, will the court accept a parenting application subject to the exceptions previously referred to (section 60I, FLA).

 

Civil partnership/same-sex marriage

26. What is the status of civil partnership/same-sex marriage? What legislation governs civil partnership/same-sex marriage?

There is no legislation permitting same-sex marriage. The institution of marriage is still reserved for heterosexuals. Section 5 of the Marriage Act of the Commonwealth states that "marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life".

Nonetheless, while same-sex couples cannot marry within Australia, several Australian states now afford some recognition to same-sex relationships:

  • Tasmania, by means of the Relationships Act 2003, instituted a registry system intending that partners sign a certificate witnessed by a state official. That is then sent to the Registrar of Births, Deaths & Marriages and is known as a Deed of Relationship. It includes same-sex partners living in a "significant relationship". The important benefit of registering the relationship is that it is evidence of the relationship, without having the need to prove its existence elsewhere and for other purposes.

  • In the Australian Capital Territory, the Civil Partnership Act 2008 came into effect on 19 May 2008. This Act permits the registration by couples, of whatever gender, of their civil partnership. This confers automatic legal recognition of being in a domestic partnership under the law of the Australian Capital Territory. Couples must, however, live in the territory.

  • In Victoria, the Relationships Act 2008 also had as its main purpose, overcoming of the need to prove the existence of the relationship. Registration is permitted of "registrable relationships" with no limitations of gender.

In order for couples to bring themselves within the ambit of the Family Law Act 1975 as de facto partners, they must prove the existence of the de facto relationship. Registration of a relationship is not determinative of the existence of the relationship, but a very significant factor.

 

Controversial areas and reform

27. What areas of the law (if any) are currently undergoing major change? Which areas of law are considered to be particularly controversial?

Nuptial agreements, that is pre-nuptial, intra-nuptial and post-nuptial agreements and also those relating to the consequences of breakdown of cohabiting relationships, remain an area of rapid legal change. Appellate courts have given guidance towards a more robust and slightly less technical approach to these agreements. Hopefully it will follow as a consequence that litigation against the lawyers drafting such agreements will decline.

The courts are struggling with the multiplicity of relationships, such as parties who do not cohabit but may have some level of commitment to a shared life, or parties who have concurrent relationships. While the statutory definition of de facto relationships is expansive, appellate courts have begun to simplify the interpretative task.

The Family Court lags behind the courts of some other signatories to the Hague Convention on International Child Abduction in being relatively slow to deal with applications for return, its tolerance for argument and protracted appeals process.

No doubt, a shift in judicial attitude would be assisted by better government funding and more judges.

There is still no recognition of same-sex marriage despite changing social attitudes to which the law appears to be out of step.

In 2013 the Australian Capital Territory sought to enact legislation providing marriage equality for same-sex couples (Marriage Equality (Same Sex) Act 2013 (ACT)). However, the Federal Government brought proceedings in the High Court challenging the validity of the legislation. In The Commonwealth v Australian Capital Territory [2013] HCA 55, the High Court held that the Federal Parliament alone has the power under the Constitution to legislate with respect to same-sex marriage. Accordingly the Marriage Equality (Same Sex) Act was held to be of no effect. Interestingly, the High Court commented in its decision that there was nothing in the Constitution preventing the Federal Government from legislating to recognise same-sex marriage.

 

Online resources

Australasian Legal Information Institute (AustLII)

W www.austlii.edu.au

Description. AustLII is a joint facility of the UTS and UNSW Faculties of Law. AustLII publishes up-to-date primary legal materials (legislation, treaties and decisions of courts and tribunals), secondary legal materials created by public bodies for purposes of public access and a collection of law journals.

Australian Government ComLaw

W www.comlaw.gov.au

Description. ComLaw is managed by the Office of Parliamentary Counsel, and contains the full text of all recent Australian Government legislation, details of the lifecycles of individual laws and the relationships between them, and related documents.



Contributor profile

Max Meyer, Senior Director

Meyer Partners Family Lawyers

T +61 2 8202 9202
F +61 2 8202 9292
E mp@meyerpartners.com.au
W www.meyerpartners.com.au

Professional qualifications. Admitted to practice in 1971

Areas of practice

  • Family law.
  • One of the first lawyers accredited as a family law specialist in New South Wales.
  • Partner in charge of the family law group at Marshall Marks Kennedy for 11 years.
  • Founded the firm of Meyer Pigdon (now Meyer Partners Family Lawyers).

Recent transactions. Acted in major cases including international financial disputes on marital breakdown, and other disputes for high profile and high net worth professional and business clients. A number of his cases have established legal precedent.

Professional associations/memberships

  • Member of the New South Wales Law Society.
  • Member of the Family Law Section of the Law Council of Australia.
  • One of the first two lawyers practising in New South Wales to be elected as a Fellow of the International Academy of Matrimonial Lawyers.

Publications

  • Chapter on Australian family law in "Family Law Jurisdictional Comparisons" published by Thomson Reuters in 2011 (the only Australian lawyer to be invited to contribute).
  • Chapter on Australian family law in "Family Law & Practice" by Sweet & Maxwell publication.
  • Frequent speaker on family law issues including at international conferences.

{ "siteName" : "PLC", "objType" : "PLC_Doc_C", "objID" : "1248037194373", "objName" : "Family law in Australia overview", "userID" : "2", "objUrl" : "http://us.practicallaw.com/cs/Satellite/us/resource/8-579-5585?null", "pageType" : "Resource", "academicUserID" : "", "contentAccessed" : "true", "analyticsPermCookie" : "25e8a493e:15b13085790:3578", "analyticsSessionCookie" : "25e8a493e:15b13085790:3579", "statisticSensorPath" : "http://analytics.practicallaw.com/sensor/statistic" }