Family law in Australia [9th edition.] 9780409341379, 0409341371

1,312 155 10MB

English Pages [1687] Year 2016

Table of contents :
Full Title
Copyright
Preface
Acknowledgments
Table of Cases
Table of Statutes
Table of Contens
Chapter 1 Law, Society and the Family
Introduction
A short history of English marriage and divorce law
Marriage
Marriage breakdown and its early remedies
Annulment
Parliamentary divorce
Divorce for the common man (and woman?)
The coming of divorce
From fault to irretrievable breakdown
Adultery
Cruelty, desertion and incurable insanity
Irretrievable breakdown
Developing an Australian family law
Introduction
Matrimonial Causes Act 1959 (Cth)
Family Law Act 1975 (Cth)
The creation of the Family Court of Australia
Families in Australia: The modern social context
The modern family
Families based on marriage
Families based on cohabitation — ‘de facto’ marriage
Same-sex couples
Children as the basis of family law regulation
Family violence and family law
The psychological impacts of relationship breakdown
Infants and toddlers
Preschoolers
School age
Helping younger children transition
Early adolescence
Reading the signs
Chapter 2 Dispute Resolution in Family Law
Introduction
Out-of-court FDR
Family Relationship Centres
What is FDR and who are FDR practitioners?
Family Law (Family Dispute Resolution Practitioners) Regulations 2008 (Cth)
Dispute resolution processes
Negotiation
Mediation
Child-inclusive mediation
Further FDR processes outside the court system
Collaborative law
Legal aid conference/dispute management
Arbitration
Pre-action procedures
Parenting disputes and s 60I certificates
Property settlement and maintenance
When is FDR unsuitable?
FDR processes within the court system
Family consultants
Conciliation and case assessment conferences
Obligations on advisers
Family counselling in respect of children
Confidentiality and admissibility of communications in family counselling and FDR
Chapter 3 Violence and Abuse
Introduction
Government inquiries following the 2006 reforms
New definitions of ‘family violence’ and ‘child abuse’ in the FLA
Recent developments
Family violence
Child abuse
International instruments
Injunctions
Introduction
The injunction as protection from violence and harassment
Injunctions excluding a party from the home
Injunctions for the protection of a child (and others)
Enforcement
Protection orders under state and territory legislation
Relationship between Commonwealth and state or territory laws
What constitutes child abuse?
Incidence, causes and effects of child abuse
Protecting children from abuse under state and territory legislation
Mandatory reporting under state and territory laws
Mandatory reporting under the FLA
State intervention for the protection of a child
Child protection: the relationship between the Commonwealth and state and territory laws
Other strategies
Chapter 4 Constitutional Powers and the Family Courts
Introduction
Constitutional powers
The marriage power
The matrimonial causes power
The FLA
The first challenge to the FLA: Russell v Russell
The effects of Russell v Russell
The limits of federal jurisdiction
Introduction
Federal law and the adoption of children
Third parties and the ‘child of the marriage’
Wardship and the welfare jurisdiction of the Family Court
Testing the limits of the welfare jurisdiction
Other proceedings between the parties
Overcoming the limitations: first steps
Involvement of the state courts
State family courts
The Family Court of Western Australia
Overcoming the limitations: bold steps
Associated and accrued jurisdiction
Referral of power
Cross-vesting of jurisdiction
Domicile and the basis of jurisdiction
The Family Courts
The Family Court of Australia
The Federal Circuit Court of Australia
The Family Court of Western Australia
Appeals
The nature of appeals
Full Court of the Family Court of Australia
Appeals from the Federal Circuit Court of Australia (and the Magistrates Court of Western Australia)
Appeals from the Family Court of Australia and the Family Court of Western Australia (or a state and territory Supreme Court)
Appeals to the High Court
Chapter 5 Marriage and De Facto Relationships
Introduction
Marriage
Essential characteristics
Monogamy
Polygamy
Indigenous Australians — Aboriginal customary marriages
A man and a woman
A voluntary union
For life
Engagements and breach of promise
Codifying marriage
Introduction
Marriage Act
Marriage Amendment Act 1985 (Cth) and the marriage of foreign nationals in Australia
Capacity to marry
Freedom to marry
Prohibited relationships
Marriageable age
Consent to the marriage of minors
Formalities
Marriages in Australia by authorised celebrants
Consular marriages in Australia
Australian marriages overseas
Recognition of foreign marriages
Introduction
The ‘new’ statutory recognition rule: local law
Recognition at common law
No recognition of ‘foreign’ same-sex marriages
Presumed validity of marriage
Second marriage ceremonies
Consequences of non-compliance with the Marriage Act
Legitimation
De facto relationships
Introduction
De facto relationships and the FLA
The FLA definition
The nature of the s 4AA inquiry
The key concepts — ‘a couple living together on a genuine domestic basis’
Multiple relationships
The circumstances of the relationship
Existence of the relationship over time
De facto relationship declarations
Relationship registration schemes
Close and caring personal relationships
Civil partnership laws
Chapter 6 Nullity, Divorce and Termination of De Facto Relationships
Introduction
Jurisdiction — divorce and nullity
Institution of proceedings
Nullity
Introduction
Subsisting prior marriage
Prohibited relationships
Invalidity under s 48 of the Marriage Act 1961 (Cth)
Absence of real consent
Duress or fraud
Mistake
Mistake of identity
Mistake as to the nature of the ceremony
Mental incapacity
Party below marriageable age
Divorce
Introduction
Irretrievable breakdown of marriage
Separation
Separation under the same roof
Reasonable likelihood of cohabitation being resumed
Duration of separation
The two-year marriage — s 44(1B) and (1C) of the FLA
Divorce orders
When divorce order takes effect
Arrangements for children
Rescission of divorce orders
Foreign divorces, annulments and legal separations
Void and invalid marriages
Divorce and nullity
Declarations of validity
Ancillary proceedings
Termination of de facto relationships
Introduction
Meaning of breakdown
What constitutes breakdown of a de facto relationship
Registered relationships and civil partnerships
Chapter 7 Parentage
Introduction
Status of children
Historical background
Status of children legislation
Establishing parenthood
Presumptions of parentage under the FLA
Parentage evidence
Assisted conception
Legislative solutions
Known donors under the FLA
Assisted conception and child support
Regulation of artificial/assisted conception and related research procedures
Status of frozen embryos
Posthumous sperm
Legislative developments
Access to assisted conception procedures
Surrogacy
The status of surrogacy arrangements
Legislative developments
Surrogacy arrangements and the FLA
Conflicting decisions in the Family Court
Parental responsibility v orders for legal parentage
Conclusion
Chapter 8 Child-Related Disputes: The Legislative Framework
Introduction
The United Nations Convention on the Rights of the Child 1989
Proceedings in respect of children under the FLA
Background to the current legislative regime
Scope of operation of Pt VII of the FLA
Key features of Pt VII
Parental responsibility
Content of parental responsibility
Who has parental responsibility?
Joint or several responsibility?
Scope of parental responsibility
Reallocation of parental responsibility
Parenting agreements
Institution of proceedings and procedure
Who may institute proceedings?
Required jurisdictional connection
Parenting orders
Orders dealing with where a child lives
Orders dealing with children spending time, or communicating, with another person
Proceedings in respect of parenting orders
Exercise of the court’s jurisdiction: the best interests of the child as the paramount consideration
The mandatory process for determining best interests
Scope of operation of the best interests of the child principle under the FLA
The less adversarial trial
Representation of children’s interests: the independent children’s lawyer
Circumstances in which the court may appoint an ICL
Role of an ICL
Discharging an ICL
Expert evidence
Family reports by family consultants
Orders that can be made
General
Orders least likely to lead to further proceedings
Interim orders
Variation of orders in respect of children
Interrelationship between parenting orders and family violence orders
The Family Court’s welfare jurisdiction
Enforcement of orders in relation to children
Background
The current legislative scheme
Specific legal mechanisms dealing with non-compliance
Legislative restrictions regarding the removal of children from Australia
Location orders
Recovery orders
International child abduction
Chapter 9 Children and Parents: The Exercise of Discretion in Reallocating Parental Responsibility
Introduction
The statutory framework for applying the best interests principle
Applying the presumption of equal shared parental responsibility
The operation of s 65DAA and shared parenting
The historical preference for mothers as custodians
Attachment theory
Research on the benefits to children of shared parenting
The use of social science research as an aid to the exercise of discretion
Section 65DAA and shared parenting
Relevant considerations in the exercise of the court’s discretion
Introduction
Findings of credit
Primary versus additional considerations
The two primary considerations
The benefit to a child of a meaningful relationship with both parents
Protection from harm and family violence
Additional considerations
Views of the child
Disturbing the status quo
Separation of siblings
Parents, third parties and the role of biology in decision-making
The general conduct of the parties
Matrimonial conduct of the parties
Kidnapping
Unconventional lifestyle
Homosexuality
Religion
Children of Aboriginal or Torres Strait Islander descent
‘Spend time with’ orders
Orders not permitting children to spend time with parents
Orders for children to spend time with non-parents
The impact of a child not wanting to spend time with a parent
The intractable nature of ‘spend time with’ orders
Allegations of child sexual abuse in contested child proceedings
Relocation cases
Change of name
Chapter 10 Financial Support of Married and De Facto Partners
Introduction
Support of married partners
Introduction
The history of spousal maintenance
Policy issues in the current law
Jurisdiction and types of maintenance orders
Entitlement to spousal maintenance
The threshold: s 72
The court’s power under s 74 and the s 75(2) factors
The parties’ needs and means
Financial relationships with third parties
Section 75(2)(o) and considerations of conduct
Private and public purses: the relationship between spousal maintenance and social security
Spousal maintenance orders
Form
Modification
Duration
Enforcement
The future of spousal maintenance
Support of de facto partners
Introduction
Statutory maintenance entitlements prior to the commencement of Pt VIIIAB in 2009
Statutory maintenance entitlements after the commencement of Pt VIIIAB
Threshold issues and time limits
Geographical requirements
The court’s power under s 90SE and the s 90SF(3) factors
Modification and cessation of de facto relationship maintenance order
Enforcement
Child-bearing expenses
Chapter 11 Financial Support of Children
Introduction
Child maintenance principles under the FLA
Maintenance for adult children
Applications on the basis of an adult child’s disability
Applications to enable an adult child to complete his or her education
Liability of step-parents for child maintenance
The CSS
Introduction
Background to the introduction of the CSS
Reform of the CSS
Registration and collection of child support
Introduction
Objects
Collection, payment and enforcement of child support
Associated changes to social security
Administrative assessment of child support
Introduction
Children to whom administrative assessment applies
Persons who may apply for administrative assessment
Persons who may be liable for administrative assessment
Recovering money wrongly paid under an administrative assessment
Processing applications for administrative assessment
Child support period
Statutory formula for administrative assessment of child support
Departure from administrative assessment
Introduction
Significantly reduced capacity of either parent to provide financial support
High costs of the child
Child or parents’ financial situation and payments in lieu of child support
Changes to an assessment under Pt 6A
Varying a departure from assessment
Orders for child support other than in periodic form
Private arrangements for child support
Cessation of child support
Chapter 12 Property Proceedings: Preliminary Issues
Introduction
Achieving economic justice?
The economic consequences of relationship breakdown
Extraneous factors resulting in financial disadvantage for women
Historical background
The Commonwealth and married couples
Parties to a de facto relationship
Policy and reform issues in relation to financial matters
Jurisdiction
Married couples
Arising out of the marital relationship
Proceedings following the death of a party
Principal relief, including overseas divorce and nullity
Parties to former de facto relationships
De facto couples: threshold conditions
Conclusion
Chapter 13 Property Proceedings: The Legislative Framework
Introduction
The time limits for bringing an application for property settlement
Married couples
Parties to former de facto relationships
The finality principle
Declaration of property interests
An overview of the relevant legislative provisions for dividing property
Dividing property under the FLA
The four-step approach post-Stanford
The first ‘fundamental principle’: identifying legal and equitable interests in property
Defining property
Financial resources
Companies and discretionary family trusts
Notional property and add backs?
Notional property post-Stanford
Valuing property
Liabilities
Full and frank disclosure
The second and third ‘fundamental principles’ and the just and equitable requirement
A structured approach: four or five steps?
The nature of the inquiry
The content of the inquiry
A summary of the property pathway post-Stanford
Conclusion
Chapter 14 Property Proceedings: The Exercise of the Discretion
Introduction
The exercise of the discretion
The alteration of property interests
Identification of contributions
Financial contributions
Non-financial contributions
Contributions to the welfare of the family
Assessing contributions
Global or asset-by-asset approach?
The rise of the partnership approach and the fall of ‘special contributions’
Equality as a starting point rejected
Greater value (in theory) placed on ‘women’s work’
The rise and fall of ‘special’ contributions
The rise and rise of special contributions
The fall and fall of special contributions
Financial misconduct
Family violence
The Kennon decision
After Kennon
Contributions
Initial contributions
Post-separation contributions
Gifts
Inheritances
Windfalls
Compensation awards
Additional factors
Section 79(4)(d)/90SM(4)(d): effect on earning capacity
Section 79(4)(e)/90SM(4)(e): other factors
Increased emphasis on ‘other factors’
Section 79(4)(f)/90SM4(f): order affecting a party or child
Section 79(4)(g)/90SM(4)(g): child support
The contemporary approach to additional factors
A ‘just and equitable’ order
Forms of order for property adjustment
Relationship between spousal maintenance and property adjustment
Conclusion
Chapter 15 Property Proceedings: Specific Issues
Introduction
Superannuation
Superannuation before the 2002 amendments
Background information on superannuation
Superannuation after the 2002 amendments
Splitting orders and flagging orders
Is superannuation property?
Superannuation agreements
Injunctions
Introduction
Injunctions restraining the disposition of property
Orders and injunctions against third parties
Situation after the commencement of Pt VIIIAA
Practical implications of Pt VIIIAA
Section 85A
Setting aside transactions
Position of the bona fide purchaser
Conclusion
Financial agreements and consent orders
Orders made with the consent of the parties
Maintenance agreements under the FLA (1976–2000)
Financial agreements under the FLA (2000–present)
Requirements of financial agreements that are enforceable between the parties
What may be included in a financial agreement
Spousal maintenance
Other matters relating to financial agreements
Setting aside a financial agreement
A binding financial agreement that ousts the jurisdiction of the courts
Family Law Amendment (Financial Agreements and Other Measures) Bill 2015 (Cth)
Bankruptcy and the FLA
Introduction: Becoming bankrupt in the context of family law proceedings
Bankruptcy and Family Law Legislation Amendment Act 2005 (Cth)
Setting aside property orders
Introduction
Miscarriage of justice
Impracticability
Default
Exceptional circumstances relating to the care, welfare and development of a child
Consent to vary
Varying orders made with the consent of the parties
Conclusion
Index

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FAMILY LAW IN AUSTRALIA 9th Edition

Lisa Young B Juris, LLB (W Aust), LLM (Cantab) Admitted as a Barrister and Solicitor of the Supreme Court of Western Australia and the High Court of Australia Associate Professor, School of Law, Murdoch University, Perth

Adiva Sifris B Proc (Wits), LLM, PhD (Monash) Admitted as a Barrister and Solicitor of the Supreme Court of Victoria and the High Court of Australia Senior Lecturer, Faculty of Law, Monash University, Melbourne

Robyn Carroll B Juris, LLB (W Aust), BCL (Oxon) Admitted as a Barrister and Solicitor of the Supreme Court of Western Australia Professor, Law School, The University of Western Australia

Geoffrey Monahan BA (Macq), LLB (Syd), LLM (NSW) Judge, Federal Circuit Court of Australia

LexisNexis Butterworths Australia 2016

AUSTRALIA

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National Library of Australia Cataloguing-in-Publication entry Author: Title: Edition: ISBN:

Young, Lisa. Family Law in Australia. 9th edition. 9780409341362 (pbk). 9780409341379 (ebk). Notes: Includes index. Subjects: Family law — Australia. Domestic relations — Australia. Marriage law — Australia. Divorce — Law and legislation — Australia Other Creators/Contributors: Sifris, Adiva. Carroll, Robyn. Monahan, Geoffrey. Dewey Number: 346.94015 © 2016 Reed International Books Australia Pty Limited trading as LexisNexis. 1st edition, 1972; 2nd edition, 1979; 3rd edition, 1983; 4th edition, 1989; 5th edition, 1997; 6th edition 2006; 7th edition 2009; 8th edition 2013. This book is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced by any process, electronic or otherwise, without the specific written permission of the copyright owner. Neither may information be stored electronically in any form whatsoever without such permission. Inquiries should be addressed to the publishers. Typeset in ITC Stone Sans and ITC Stone Serif. Printed in China. Visit LexisNexis Butterworths at www.lexisnexis.com.au

PREFACE ___________________________

This book was first published in 1972 and the original authors were Henry Alan Finlay and Alastair Bissett-Johnson. In the tradition of a legal treatise, the work was written to enable law scholars, students and practitioners to know what the law was. The book was also designed to promote a greater understanding of how the law worked, how it had come to be what it was, and how it could be improved. At the time of the first edition, the Matrimonial Causes Act 1959 (Cth) was still in operation. This statute was soon to be replaced by the Family Law Act 1975 (Cth), which heralded a completely new approach to family law. This was reflected in the second edition, published in 1979. The third (1983), fourth (1989) and fifth (1997) editions continued the primary aims of the book; that is, to strike a balance between theory and practice, and to place the explanation of family law in a historical and social context; and to stimulate discussion on future directions of reform. In addition to the late Henry Alan Finlay, the author team included Alastair BissettJohnson, Rebecca Bailey-Harris and Margaret Otlowski. The sixth (2006) and seventh (2009) editions marked a new direction in the evolution of the book. After nearly a decade, it had both a new author team (Geoffrey Monahan and Lisa Young) and a new format. Adiva Sifris and Robyn Carroll joined the author team for the eighth edition (2013) and contributed to a substantial reworking of the materials, including a new chapter on

dispute resolution and a reworking of those sections dealing with family violence. In this latest edition, further substantial revisions have been made, most notably to the chapters dealing with property disputes, which have been reworked to accommodate the developing jurisprudence in this area. Lisa Young was responsible for the introductory Chapter 1, Chapter 3 on family violence, Chapters 8 and 9 dealing with disputes concerning children and Chapter 11 dealing with the financial support of children, and contributed paragraphs 14.2–14.6 dealing with the role of ‘legitimate guidelines’. Carolyn Johnson contributed the materials on the psychological impacts of family breakdown in Chapter 1 and attachment theory in Chapter 9. Adiva Sifris was responsible for Chapter 7 on parentage, and the new chapters on property disputes and financial matters, Chapters 12–15. Robyn Carroll was responsible for Chapter 2 on dispute resolution, Chapter 5 on marriage and de facto relationships, Chapter 6 on divorce, and Chapter 10 on spousal maintenance. Geoffrey Monahan was responsible for Chapter 4 and contributed paragraphs 15.61–15.67, dealing with bankruptcy and the Family Law Act. The ninth edition states the law as at 4 December 2015. Finally, we thank our families, our research assistants and our employers for their support during the research and writing of this edition. Enjoy your exploration of Australian family law. Lisa Young, Adiva Sifris, Robyn Carroll and Geoffrey Monahan April 2016

ACKNOWLEDGMENTS ___________________________

The authors and publishers are grateful to the holders of copyright in material from which extracts appear in this work, especially to the following: Australian Government Publishing Service Australian Institute of Family Studies Australian Society for the Study of Labour History © Commonwealth of Australia While every care has been taken to establish and acknowledge copyright, the publishers tender their apologies for any accidental infringement. They would be pleased to come to a suitable arrangement with the rightful owners in each case. The legislation reproduced herein does not purport to be the official or authorised version.

TABLE OF CASES ___________________________

References are to paragraph numbers

A A (a child), Re (1993) 16 Fam LR 715; FLC ¶92-402 …. 8.124 A v A (1998) 22 Fam LR 756; FLC ¶92-800 …. 9.36, 9.112 — v GS (2004) 32 Fam LR 583; FLC ¶93-199 …. 8.151, 8.159 A & A (1981) 7 Fam LR 439; FLC ¶90-070 …. 8.31 A & B, Marriage of (1989) 13 Fam LR 798; FLC ¶92-126 …. 7.28 A & B, Re (2000) 26 Fam LR 317 …. 7.39 A & J, Marriage of (1995) 19 Fam LR 260; FLC ¶92-619 …. 9.69 AA v Registrar of Births, Deaths and Marriages and BB [2011] NSWDC 100 …. 7.22 AB v Attorney-General (Vic) [2005] VSC 180 …. 7.30 — v Attorney-General (SC (Vic), Gillard J, No 6553 of 1998, 21 July 1998, unreported) …. 7.30 — v Western Australia (2011) 244 CLR 390; 281 ALR 694; 85 ALJR 1233; 46 Fam LR 1 …. 5.13 — v ZB (2002) 30 Fam LR 591; (2003) FLC ¶93-140 …. 14.13 Abati & Cole [2015] FamCA 185 …. 12.30 Abbott, Marriage of (1995) 123 FLR 424; 18 Fam LR 550; FLC ¶92-582 …. 6.58 Abdo & Abdo (1989) 12 Fam LR 861; FLC ¶92-013 …. 14.59 Abdullah, Marriage of (1981) 6 Fam LR 654; FLC ¶91-003 …. 15.29, 15.32, 15.33 Abud & Abud [2010] FamCA 1132 …. 8.132 AC & VC (2013) 49 Fam LR 276; FLC ¶93-540 …. 15.25 Ackersley v Rialto [2009] FamCA 817 …. 8.134 Actors and Announcers Equity Association of Australia and Others v Fontana Films Pty Ltd (1982) 150 CLR 169 …. 15.24 Adair v Milford [2015] FamCAFC 29 …. 10.23, 13.31 Adame & Adame [2014] FCCA 42 …. 15.49

Adams v Adams (1968) 11 FLR 197 …. 10.14 Adamson & Adamson [2014] FamCAFC 232 …. 9.25, 9.121, 9.122, 9.123 Agar-Ellis, Re; Agar-Ellis v Lascelles (1883) 24 Ch D 317 …. 8.29 Agee & Agee (2000) 27 Fam LR 140; FLC ¶93-055 …. 8.158 Aitken v Deakin [2010] FMCAfam 35 …. 5.113, 6.70, 6.121 AK v NC (2003) 32 Fam LR 16; FLC ¶93-178 …. 6.51 Akston & Boyle (2010) FLC ¶93-436 …. 2.43, 3.45 Al Soukmani & El Soukmani (1989) 96 FLR 388; 13 Fam LR 441; FLC ¶92-107 …. 6.36 Aldred & Aldred (1988) FLC ¶91-933 …. 14.20 Aldridge v Keaton (2009) 42 Fam LR 369; FLC ¶93-421; [2009] FamCAFC 229 …. 7.11, 7.19, 7.56, 8.42, 8.62, 9.26, 9.61 Aleksovski and Aleksovski (1996) 20 Fam LR 894; (1996) FLC ¶92-705 …. 14.55 Alex, Re (2009) 42 Fam LR 645 …. 8.124, 8.125 Alex (hormonal treatment for gender dysphoria), Re (2004) 31 Fam LR 503; FLC ¶93-175 …. 8.124 Allamar v Benny [2012] FamCAFC 42 …. 6.12 Allan & Allan (1987) FLC ¶91-824 …. 12.36 Allardyce v Mitchell (1869) 6 WW & A’B (M) 45 …. 6.41 Allen v Allen [1948] 2 All ER 413 …. 9.10 — v Allen; Hargraves (1984) 9 Fam LR 440; FLC ¶91-531 …. 9.43 Althaus, Mariage of (1979) 8 Fam LR 169; FLC ¶91-233 …. 13.4 AM, Re (2006) 35 Fam LR 319; FLC ¶93-262 …. 11.19, 11.29 Amero v Croft [2010] FamCAFC 118 …. 13.15 AMS v AIF (1999) 24 Fam LR 756; FLC ¶92-852 …. 9.119 Anast & Anastopoulos (1981) 7 Fam LR 728 …. 10.36, 10.37, 14.67 Anderson & McIntosh (2013) 50 Fam LR 609; FLC ¶93-568 …. 13.5 Antmann & Antmann (1980) 6 Fam LR 560; FLC ¶90-908 …. 14.34 AP v ENP (P & P) (2003) FLC ¶93-161 …. 14.41 — v RD [2011] NSWSC 1389 …. 7.44 Apt v Apt [1947] 2 All ER 677 …. 5.64 Archbold, Marriage of (1984) 9 Fam LR 798; FLC ¶91-532 …. 8.97 Archer & Archer (SSAT Appeal) [2013] FCCA 226 …. 11.29 Armitage v Attorney-General [1906] P 135 …. 12.38 Aroney & Aroney (1979) 5 Fam LR 535; FLC ¶90-709 …. 14.18 Arpas & Arpas (1989) FLC ¶92-042 …. 15.70 Arthur & Comben (1977) 3 Fam LR 11,199; FLC ¶90-245 …. 9.129 Arunchalam & Arunchalam [2012] FamCA 26 …. 13.11 Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337; 6 Fam LR 591; FLC ¶91-000 …. 13.23, 15.17, 15.18, 15.19, 15.24, 15.26

Ashton, Marriage of (1982) FLC ¶91-285; 8 Fam LR 675 …. 10.19 Ashton & Ashton (1986) 11 Fam LR 457; FLC ¶91-777 …. 13.24 Astbury & Astbury (1978) 4 Fam LR 395; FLC ¶90-494 …. 10.25, 10.27 Attorney-General (Commonwealth) v Kevin & Jennifer (2003) 30 Fam LR 1; FLC ¶93-127 …. 5.13 Attorney-General (NSW) v Brewery Employees’ Union (NSW) & Watson & Townsend (Union Label case) (1908) 6 CLR 469 …. 4.3, 4.22 Attorney-General (Vic) v Commonwealth (Marriage Act case) (1962) 107 CLR 529 …. 4.6, 4.12, 4.13, 4.14, 4.15, 4.16, 4.17, 4.20, 4.37, 5.85, 6.24, 6.109, 7.3 Attorney-General, Department of Family, Youth and Community Care & Thorpe (1997) 141 FLR 44 …. 8.155 Attorney-General’s Department & McGaffey [2014] FamCA 722 …. 8.155 Audet v Audet; Official Trustee in Bankruptcy (Intervenor) (1995) FLC ¶92-607 …. 15.61 Austin v Austin (1865) 34 Beav 257; 55 ER 634 …. 9.10 Australasian Temperance and General Mutual Life Assurance Society Ltd v Howe (1922) 31 CLR 290 …. 4.105 Australia and New Zealand Banking Group Ltd v Harper (1987) 11 Fam LR 649; (1988) FLC ¶91-938 …. 15.31 Australian Securities and Investment Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 …. 4.87 Axon v Axon (1937) 59 CLR 395 …. 5.75, 5.76 Aytugrul v The Queen [2012] HCA 15 …. 9.20

B B, Re (1972) 20 FLR 178 …. 5.48 B, Re (1983) 9 Fam LR 40; FLC ¶91-332 …. 5.44, 5.64, 5.69, 6.53, 6.108 B v F [1998] FamCA 239 …. 9.82 — v J (1996) 21 Fam LR 186; FLC ¶92-716 …. 7.20, 7.25, 7.26, 7.57, 11.65 — v J [2009] FamCAFC 103 …. 8.108 B (Infants) & B (Intervener) v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 30 Fam LR 181; FLC ¶93-141; [2003] FamCA 451 …. 4.66, 8.4, 8.33 B Pty Ltd v K (2008) 219 FLR 107; 39 Fam LR 488; [2008] FamCAFC 113 …. 4.87, 15.24 B & B (1985) 10 Fam LR 8; FLC ¶92-610 …. 12.33 B & B (Jurisdiction) (2003) 31 Fam LR 7; FLC ¶93-136 …. 8.66 B & B (No 2) (2000) 26 Fam LR 437; FLC ¶93-031 …. 13.21 B & B, Re: Family Law Reform Act 1995 (1997) 21 Fam LR 676; FLC ¶92-755 …. 8.4, 8.20, 8.26, 8.27, 8.52, 8.55, 9.90, 9.119 B & C, Marriage of (1989) 13 Fam LR 299; FLC ¶92-043 …. 9.70 B & R and the Separate Representative (1995) 19 Fam LR 594; FLC ¶92-636 …. 8.79, 8.85,

9.78, 9.80, 9.81, 9.83 Babich v Sokur [2007] FamCA 236 …. 6.51 Baby A, Re [2008] FamCA 417 …. 8.124 Baby D, Re (No 2) (2011) 45 Fam LR 313 …. 8.124 Baby R (Life Support), Re [2015] FamCA 449 …. 8.117 Bagby & Bagby [2015] FamCAFC 209 …. 14.51 Bailey & Bailey (1978) FLC ¶90-424 …. 14.11, 15.4 Baily v Baily (1962) 3 FLR 476 …. 6.66 Bainrot, Marriage of (1976) 1 Fam LN No 2; FLC ¶90-003 …. 8.95 Baker v Landon (2010) 238 FLR 210 …. 5.96, 5.97, 5.100, 5.103, 5.104, 5.105, 5.110, 5.113, 7.19 Banh & Banh (1981) 6 Fam LR 643; FLC ¶91-010 …. 5.75 Bank Line Ltd v Arthur Capell and Co [1919] AC 435 …. 15.72 Bankinvest AG v Seabrook (1988) 14 NSWLR 711 …. 4.97 Bant & Clayton [2015] FamCAFC 222 …. 3.3 Baranski & Baranski [2012] FamCAFC 18 …. 14.42 Barber, Marriage of (1991) 14 Fam LR 683; FLC ¶92-210 …. 11.79 Barker v Barker (1976) FLC ¶90-068 …. 9.68 Barkley & Barkley (1976) 1 Fam LR 11,554 …. 14.37 Barnett v Barnett (1973) 2 ALR 19; 21 FLR 335 …. 9.50, 9.63, 9.64 Barningham v Barningham [2011] FamCAFC 12 …. 9.43 Barriga & Barriga (No 2) (1981) 7 Fam LR 909; FLC ¶91-088 …. 5.75 Barrios & Sanchez (1989) 13 Fam LR 477; FLC ¶92-054 …. 8.160 Barry v Dalrymple [2010] FamCA 1271 …. 5.99, 5.105, 5.108 Barry & Barry [2011] FMCAfam 957 …. 10.36 Bartsch & Redman (No 2) [2014] FamCAFC 214 …. 9.72 Bass & Bass (2008) FLC ¶93-366 …. 8.89 Bassi v Maas (1999) 25 Fam LR 678; FLC ¶92-867 …. 15.33 Bateman v Kavan (2014) 52 Fam LR 648; [2014] FCCA 2521 …. 7.26, 11.65 Bates & Sawyer (1977) 3 Fam LN 71; FLC ¶90-319 …. 6.85 Batty, Marriage of (1986) 10 Fam LR 688; FLC ¶91-703 …. 6.69, 6.70 Baumgartner v Baumgartner (1987) 164 CLR 137; 11 Fam LR 915; (1988) DFC ¶95-058 …. 12.20 Bazley v Wesley Monash IVF Pty Ltd [2010] QSC 118 …. 7.30 Beach v Stemmler (1979) FLC ¶90-692 …. 9.130 Beard v McCarthy [2009] FamCA 737 …. 9.71, 9.75 Beasley & Jeffreys [2011] FMCAfam 713 …. 9.61 Beazley & Andreopolis [2009] FamCA 567 …. 9.25 Beck v Sliwka (1992) 15 FLR 520; FLC ¶92-296 …. 11.5, 11.13

— v Whitby [2012] FamCA 129 …. 8.48 Beeby v Beeby (1799) 1 Hag Ecc 789 …. 1.20, 1.26 Bell & Bell [2013] FMCAfam 6 …. 9.75 Bellinger v Bellinger [2002] 1 All ER 311; (2001) 2 Fam LR 1048 …. 5.13 Bendall v McWhirter [1952] 2 QB 466 …. 12.13 Beneke & Beneke (1996) 20 Fam LR 841; FLC ¶92-698 …. 14.45 Bennett & Bennett (1990) 14 Fam LR 397; (1991) FLC ¶92-191 …. 8.79, 8.107 Bennett & Bennett (2001) 28 Fam LR 231; FLC ¶93-088 …. 3.17, 9.128 Bergman v Bergman (2009) FLC ¶93-395; [2009] FamCAFC 27 …. 4.87, 4.88 Bernadette, Re (2011) 45 Fam LR 248; FLC ¶93-463 …. 8.116, 8.124 Bernieres & Dhopal [2015] FamCA 736 …. 7.12, 7.49, 7.54 Berrell & Berrell (No 3) [2013] FamCA 1012 …. 13.17 Berry v Da Costa (1866) LR 1 CP 331 …. 5.18 — v Wakley and Black (1988) 12 Fam LR 451 …. 4.97 Berry & Berry (1990) 14 Fam LR 215; FLC ¶92-155 …. 11.81 Berthiaume v Dastous [1930] AC 79 …. 5.64 Best, Marriage of (1993) 16 Fam LR 937; FLC ¶92-418 …. 10.4, 10.24, 11.84, 13.21, 14.23 Bevan, Marriage of (1993) 19 Fam LR 35; (1995) FLC ¶92-600 …. 10.3, 10.19, 10.21, 10.23, 10.25, 10.26, 10.27, 10.29, 10.36, 14.67 Bevan & Bevan (1993) 19 Fam LR 35; (1995) FLC ¶92-600 …. 11.27 Bevan & Bevan (No 1) (2013) 49 Fam LR 387; FLC ¶93-545 …. 13.17, 13.18, 13.20, 13.29, 13.32, 13.34, 13.35, 13.36, 13.37, 13.38, 13.40, 14.65 Bevan & Bevan (No 2) (2014) 51 Fam LR 363; FLC ¶93-572 …. 13.17, 13.18 Biddulph & Biddulph (1977) FLC ¶90-243 …. 10.22, 10.27 Bieganski (B v B), Marriage of (1993) 16 Fam LR 353; FLC ¶92-357 …. 9.109, 9.110 Bienke v Bienke-Robson (1997) 23 Fam LR 569; FLC ¶92-786 …. 11.78 Bigg v Suzi (1998) 22 Fam LR 700; FLC ¶92-799 …. 15.70 Biggs & Biggs [2014] FamCA 1033 …. 8.89 Bilal v Omar (2015) 53 Fam LR 121; [2015] FamCAFC 30 …. 15.58 Biltoft, Marriage of (1995) 19 Fam LR 82; FLC ¶92-614 …. 13.14, 13.31 Bima [2014] FamCA 1170 …. 7.11 Births, Deaths and Marriages Registration Act 1997, Re (2000) 26 Fam LR 234; FLC ¶93021 …. 7.39 Bishop & Bishop [2013] FamCAFC 138; (2013) FLC ¶93-553 …. 14.53 Black v Black (2008) 38 Fam LR 503; FLC ¶93-357 …. 15.54 Black & Kellner (1992) 15 Fam LR 343; FLC ¶92-287 …. 13.33 Blake [2013] FCWA 1 …. 7.52 Blanch v Blanch & Crawford (1999) 24 Fam LR 325; FLC ¶92-837 …. 9.36 BLH & MH v SJW & MW [2010] QDC 439 …. 7.44

Blueseas Investment Pty Ltd v Mitchell & McGillivray (1999) 25 Fam LR 65; FLC ¶92-856 …. 15.15 Blunt v Blunt [1943] AC 517 …. 1.29, 1.30, 4.122 Boccard v Boccard [2013] FamCA 63 …. 9.107 Bogan v Macorig [2004] NSWSC 993 …. 10.54 Bolger & Headon [2014] FamCAFC 27; FLC ¶93-575 …. 14.7, 14.8 Bolt & Williams (1996) FLC ¶96-662 …. 12.36 Bolton, Marriage of (1992) 15 Fam LR 615; FLC ¶92-309 …. 11.82 Bonnici & Bonnici (1991) 15 Fam LR 138; FLC ¶92-272 …. 14.52, 14.53 Borriello & Borriello (1989) 13 Fam LR 415; FLC ¶92-049 …. 13.30 Bourke & Bourke (1994) FLC ¶92-479 …. 15.75 Boyce & Boyce [2015] FamCAFC 60 …. 9.6 Bozinovic & Bozinovic (1989) 99 FLR 155; 13 Fam LR 804; FLC ¶92-121 …. 6.72 Brady & Brady (1978) FLC ¶90-513; FLR 422 …. 10.26 Branchflower & Branchflower (1980) 6 Fam LR 188; FLC ¶90-857 …. 11.14 Branicki & Branicki [1990] FamCA 61 …. 14.58 Brear v Corcoles-Alfaro (1997) 22 Fam LR 219; FLC ¶92-768 …. 9.43 Brease v Brease (1997) 22 Fam LR 518; (1998) FLC ¶92-793 …. 14.54 Bremner & Bremner (1994) 18 Fam LR 407; (1995) FLC ¶92-560 …. 14.45 Brennan v Brennan (1953) 89 CLR 129 …. 6.93, 6.94, 6.95, 6.96 Brennan & Brennan (1991) 14 Fam LR 725; FLC ¶92-229 …. 13.30 Brianna v Brianna (2010) 43 Fam LR 309; FLC ¶93-437 …. 2.32, 7.8, 7.10, 7.12, 8.45, 8.67 Briers & Briers (1978) FLC ¶90-483 …. 3.15 Bright v Bright & Mackley (1995) FLC ¶92-570 …. 9.92 Briginshaw v Briginshaw (1938) 60 CLR 336 …. 6.80, 6.81, 7.4 Brodie (Special Medical Procedure), Re [2008] FamCA 334 …. 8.124 Bromwich & Bromwich [2007] FamCA 157 …. 11.28 Brown v Brown (2007) 37 Fam LR 59; FLC ¶93-316 …. 10.36 — v Burke (2007) 39 Fam LR 276 …. 8.153 Brown & Brown (1982) 60 FLR 212; 8 Fam LR 1; FLC ¶91-232 …. 6.50, 6.51 Brown & Brown (2005) 33 Fam LR 246 …. 14.26, 14.46 Brown & Brown [2005] FamCA 1165 …. 10.36 Brown & Pederson (1988) 12 Fam LR 506; FLC ¶91-967 …. 8.88 Brown & Pederson (1991) Fam LR 173; (1992) FLC ¶92-271 …. 9.88 Brown and Brown (1980) 6 Fam LR 352; FLC ¶90-875 …. 8.59 Browne & Green (1999) 25 Fam LR 482; [1999] FamCA 1483; FLC ¶92-873 …. 14.2, 14.4, 14.36 Browne & Keith [2015] FamCAFC 143 …. 9.121

Bryant, Marriage of (1996) 20 Fam LR 575 …. 11.85 Buciu v Sabau (1997) 22 Fam LR 75; FLC ¶92-765 …. 6.108 Bucknell v Bucknell (2009) FamCAFC 177 …. 10.37 Budding v Budding [2009] FamCAFC 165 …. 10.36 Bulleen & Bulleen (2010) 43 Fam LR 489; [2010] FamCA 187 …. 14.28, 14.47 Bunting v Lepingwell (1585) 4 Co Rep 29; 76 ER 950 …. 5.22 Burke & Burke (1992) 16 Fam LR 324; 1993 FLC ¶92-356 …. 10.20 Bushby & Bushby (1988) FLC ¶91-919 …. 14.11 BZ v DAK [2007] FMCAfam 596 …. 9.6

C C (No 2), Re (1992) 15 Fam LR 355; FLC ¶92-284 …. 7.13, 11.22, 11.28, 11.29 C v B (2007) 38 Fam LR 1 …. 9.130 — v C [1942] NZLR 356 …. 6.31, 6.41 — v G [2002] FMCAfam 361 …. 11.88 C & C (1998) 146 FLR 406; 23 Fam LR 491; FLC ¶92-824 …. 6.11 C & D (falsely called C) (1979) 28 ALR 524; 35 FLR 340; 5 Fam LR 636; FLC ¶90-636 …. 6.42, 6.43, 6.108 C & J, Re (1996) 20 Fam LR 930; FLC ¶92-697 …. 9.109, 9.110 Cabbell & Cabbell [2009] FamCAFC 205 …. 14.47 Caddy & Miller (1986) 10 Fam LR 858; FLC ¶91-720 …. 12.38, 12.39 Cadman v Hallett (2014) 52 Fam LR 149; FLC ¶93-603; [2014] FamCAFC 142 …. 5.101, 5.104, 5.107, 6.119, 6.120, 12.44, 13.6 Cain & Cain (1987) 11 Fam LR 540; FLC ¶91-808 …. 6.108, 12.38 Calder & Calder (No 2) [2014] FamCA 1106 …. 14.47 Cales v Cales (2010) 44 Fam LR 376; FLC ¶93-459 …. 8.50, 9.122 Callaghan v Andrew-Hanson [1992] 1 All ER 56 …. 6.96 Calverley v Green (1984) 155 CLR 242; 9 Fam LR 940; FLC ¶91-565 …. 12.20 Cameron v Walker (2010) FLC ¶93-445 …. 8.112 Cameron & Helie [2004] FMCAfam 685 …. 11.17 Campbell v Kuskey (1998) 22 Fam LR 674; FLC ¶92-795 …. 13.31 Cantarella, Marriage of (1976) 1 Fam LR 11,483; FLC ¶90-056 …. 13.8, 13.11 Caracini v Paglietta [2009] FamCAFC 188 …. 8.108 Caretti, Marriage of (1977) 3 Fam LR 11,374; FLC ¶90-270 …. 6.83 Carey & Carey (1994) 18 Fam LR 116; FLC ¶92-488 …. 11.82 Carlson v Bowden (2008) 40 Fam LR 327 …. 9.5, 9.7, 9.61 Carlson & Fluvium [2012] FamCA 32 …. 9.25 Carlton & Bissett (2013) 49 Fam LR 503; [2013] FamCA 13 …. 7.8, 8.44

Carnell v Carnell (2006) 36 Fam LR 168; 204 FLR 122 …. 11.35 Carpenter, Marriage of (1993) 17 Fam LR 259; (1994) FLC ¶92-444 …. 11.6, 11.18, 11.30 Carpenter, Marriage of (1994) 18 Fam LR 542; (1995) FLC ¶92-583 …. 11.9, 11.26 Carpenter v Lunn (2008) FLC ¶93-377 …. 8.87, 9.101 Carr v Vincent (No 2) [2011] FMCAfam 1308 …. 11.5 Carriel & Lendrum [2015] FamCAFC 43 …. 8.45, 8.108 Carrington & Gunby (No 2) [2013] FamCA 433 …. 8.134 Carroll & Maybury [2013] FCCA 288 …. 11.76 Carvill & Carvill (1984) 9 Fam LR 1055; FLC ¶91-586 …. 13.21 Caska v Caska (1998) 23 Fam LR 659; FLC ¶92-826 …. 10.36, 10.37 Caska & Caska (2001) 28 Fam LR 307; (2002) FLC ¶93-092 …. 10.37 Cassidy v Cassidy [2009] FamCAFC 125 …. 9.5 — v Sibly [2012] FamCA 245 …. 9.52, 9.53 Cattanach & Leavens (1977) 3 Fam LR 11,276; FLC ¶90-246 …. 9.52 Cauchi & Cauchi (1994) FLC ¶92-447 …. 3.19 Cawthorn, Marriage of (1998) 23 Fam LR 86; FLC ¶92-805 …. 15.72, 15.73 CDJ v VAJ (No 1) (1998) 197 CLR 172; 23 Fam LR 755; FLC ¶92-828 …. 4.120, 8.66, 8.107, 8.155, 9.128 CDW v LVE [2015] WASCA 247 …. 8.108 Cerini v Cerini [1998] FamCA 143 …. 13.27 Champness v Hanson (2009) FLC ¶93-407 …. 9.26 Chandler & Chandler (1981) 6 Fam LR 736; FLC ¶91-008 …. 9.33 Chang v Su (2002) 170 FLR 244; FLC ¶93-117 …. 13.33 — v — (2002) 23(19) Leg Rep SL4 …. 13.33 Chapman, Marriage of (1979) FLC ¶90-671 …. 10.19 Chapman & Chapman (2014) FLC ¶93-592; [2014] FamCAFC 91 …. 13.36, 13.37, 13.38 Chapman & Jansen, Re (1990) 13 Fam LR 853; FLC ¶92-139 …. 4.97 Chapman & Palmer (1978) 4 Fam LR 462; FLC ¶90-510 …. 9.129 Chappell v Chappell (2008) 39 Fam LR 627; FLC ¶93-382 …. 9.5, 9.7, 9.21 Charles Osenton & Co v Johnston [1942] AC 130 …. 4.122 Chemaisse, Re (1987) 11 Fam LR 392; FLC ¶91-812 …. 15.50 Chilcott v Freeman [2011] TASSC 30; (2011) 20 Tas R 322 …. 10.49 Child Support Registrar & Ahern [2014] FamCAFC 105 …. 11.84 Child Support Registrar & Crowley [2015] FamCAFC 76 …. 11.76 Childers & Leslie [2008] FamCAFC 5 …. 8.132 Chorn & Hopkins (2004) 32 Fam LR 518; FLC ¶93-204 …. 13.27 Christian & Donald (2004) 39 Fam LR 547; (2008) FLC ¶93-367 …. 11.81 Church v S Overton (2008) 40 Fam LR 357 …. 9.94

Churchill & Churchill [2015] FamCA 491 …. 13.29 Cilento, Marriage of (1980) 6 Fam LR 35; FLC ¶90-847 …. 8.99 CK & SML [2004] FMCAfam 119 …. 11.88 Clarke, Marriage of (1986) 11 Fam LR 364; FLC ¶91-778 …. 6.68, 6.85, 6.87 Clauson, Marriage of (1995) 18 Fam LR 693; FLC ¶92-595 …. 10.3, 10.4, 10.36, 13.14, 14.23, 14.58, 14.59, 14.60, 14.63, 14.67 Cleary, Marriage of (1991) 15 Fam LR 245; (1992) FLC ¶92-278 …. 11.81 Clifton & Stuart (1990) 14 Fam LR 511; (1991) FLC ¶92-194 …. 15.70 Clisbey v Viges [2011] FamCA 611 …. 6.120, 6.121 Cobb v Cobb [1955] 2 All ER 696 …. 12.13 Coghlan, Marriage of (2005) 33 Fam LR 414; FLC ¶93-220 …. 14.17, 15.6, 15.8, 15.10, 15.11 Cohen v Sellar [1926] 1 KB 536 …. 5.20 Cole v Childs [2010] FMCAfam 631 …. 5.106 Coleman v Shang [1961] AC 481 …. 5.6 Collins, Marriage of [1987] FLC ¶91-800 …. 15.33 Collins, Marriage of (1990) 14 Fam LR 563 …. 14.67 Collins, Marriage of (1992) 16 Fam LR 261; (1993) FLC ¶92-343 …. 11.14 Collins & Collins (1977) 3 Fam LR 11,424; FLC ¶90-286 …. 13.12 Collins & Collins (1990) FLC ¶92-149 …. 14.58 Collins & Collins (1992) 16 Fam LR 261; (1993) FLC ¶92-343 …. 10.37 Collins & Ricardo (No 2) [2015] FamCAFC 77 …. 8.69 Collins & Tangtoi [2010] FamCA 878 …. 7.49 Collivas v Cassimatis [2007] FMCAfam 293 …. 8.107 Collu v Rinaldo [2010] FamCAFC 53 …. 8.63 Commissioner for Taxes (NT) v Liveris (1990) 14 Fam LR 336; FLC ¶92-174 …. 15.40 Commissioner of Taxation v Worsnop (2009) 40 Fam LR 552; FLC ¶93-392; [2009] FamCAFC 4 …. 13.31, 15.64 Commonwealth v Australian Capital Territory (2013) 250 CLR 441; 304 ALR 204; 88 ALJR 118; [2013] HCA 55 …. 1.62, 4.3, 5.11 Connor v Bourke [2008] FMCAfam 69 …. 9.60 Connors & Taylor [2012] FamCA 207 …. 7.19 Cook, Re; Ex parte C (1985) 156 CLR 249 …. 4.55 Coon v Cox (1993) 17 Fam LR 692; (1994) FLC ¶92-464 …. 11.9, 11.13 Cooper v Cooper (1976) 1 Fam LR 11,531; FLC ¶90-234 …. 9.86, 9.87 — v Crane [1891] P 369 …. 6.26, 6.28, 6.29 Cooper & Casey (1995) 18 Fam LR 433; FLC ¶92-575 …. 8.157 Cooper & Cooper (1989) FLC ¶92-017 …. 11.37 Corbett v Corbett [1971] P 83; [1970] 2 All ER 33; [1970] 2 WLR 1306 …. 5.13, 6.43

Cormick v Salmon (1984) 156 CLR 170 …. 4.55 Cosgrove (No 2), Marriage of (1996) 20 Fam LR 761; FLC ¶92-701 …. 11.24, 11.26, 11.27, 11.29, 11.30 Cosgrove & Cosgrove (1995) 20 Fam LR 751; FLC ¶92-700 …. 11.24, 11.29 Cotton, Marriage of (1983) FLC ¶91-330 …. 9.87, 9.88 Coulter & Coulter (1990) 13 Fam LR 421; FLC ¶92-104 …. 14.11, 15.4 Coventry & Coventry & Smith (2004) 31 Fam LR 608; FLC ¶93-184 …. 13.24 Cowley & Yuvaves [2015] FamCA 111 …. 7.52, 7.54 Cowling v Cowling (1998) 22 Fam LR 776; FLC ¶92-801 …. 8.99, 8.100 Cox & Pedrana [2013] FamCAFC 48 …. 9.3 CP, Re (1997) 21 Fam LR 486; FLC ¶92-741 …. 9.84 Crabtree v Crabtree (1963) 5 FLR 307 …. 6.78, 6.79 Craig & Hall [2012] FamCA 88 …. 9.91 Craig & Rowlands (2013) 49 Fam LR 136; FLC ¶93-535 …. 15.6, 15.11 Crampton v Crampton [2006] FamCA 528 …. 14.36 Crapp, Marriage of (No 2) (1979) 5 Fam LR 47; FLC ¶90-615 …. 13.8, 13.22, 14.11, 15.4 Craven, Marriage of (1976) 1 Fam LR 11,276; FLC ¶90-049 …. 9.117 Craven v Crawford-Craven [2008] FamCAFC 93 …. 9.69 Crawford v Dean [2012] FamCA 107 …. 8.96 Crawford & Crawford (1979) 5 Fam LR 106 …. 14.67 Crestin v Crestin (2008) 39 Fam LR 420; FLC ¶93-368 …. 8.71, 9.92 Crisp v Clarence [2015] FamCA 964 …. 5.107, 7.18 — v Crisp [2012] FMCAfam 556 …. 9.107 Cross, Marriage of (1995) 120 FLR 57; 19 Fam LR 468; FLC ¶92-628 …. 6.9, 6.96 Cross & Beaumont [2007] FamCA 568 …. 2.34 Crowley v Pappas [2013] FamCA 783 …. 5.101 Cullen, Marriage of (1981) 8 Fam LR 35; FLC ¶91-113 …. 8.96, 8.105 Curby v Curby (1971) 17 FLR 127 …. 6.56

D D, Marriage of (2001) 27 Fam LR 736 …. 6.71 D, Re …. 5.40 D v D [2005] FamCA 1462 …. 14.30 — v F [2001] FamCA 832 …. 9.61 — v McA (1986) 11 Fam LR 214; DFC ¶95-030 …. 5.95, 6.117, 6.123 — v N [2002] FMCAfam 66 …. 9.69 D & C (Imprisonment for Breach of Contact Orders) (2004) FLC ¶93-193 …. 8.138 D & D (1984) 10 Fam LR 73; FLC ¶91-593 …. 15.31

D & E, Re (2000) 26 Fam LR 310 …. 7.39 D & Y (1995) 18 Fam LR 662; FLC ¶92-581 …. 8.107 D’Agostino, Marriage of (1976) 2 Fam LR 11,322; FLC ¶90-130 …. 9.86 Dahl v Hamblin (2011) 254 FLR 49; 46 Fam LR 229; FLC ¶93-480; [2011] FamCAFC 202 …. 5.97, 5.99, 5.104, 5.106, 6.116, 6.122, 12.44 Daines & Daines (1985) 10 Fam LR 597 …. 4.124 Dakin v Sansbury [2010] FMCAfam 628 …. 5.99, 5.109 Damiani v Damiani [2010] FamCA 217 …. 6.102 — v — (No 2) [2009] FamCAFC 215 …. 9.6 Dandridge & Barron [2012] FMCAfam 141 …. 5.111 Danford & Danford [2011] FamCAFC 54 …. 14.12, 14.55 Daramy & Sane [2015] FamCA 180 …. 14.13 Davalas & Davalas [2015] FamCA 679 …. 14.36 David (No 2) (costs), Re (1998) 23 Fam LR 139; FLC ¶92-809 …. 8.76 Davidson, Marriage of (1990) 14 Fam LR 817; FLC ¶92-197 …. 13.24 Davidson, Marriage of (No 2) (1994) 17 Fam LR 656; [1994] FLC ¶92-469 …. 10.36, 15.33 Davies v Messner (1975) 12 SASR 333 …. 5.20 Davies v Richardson [2011] NSWSC 810 …. 6.113, 6.117 Davis v Davis [1964] VR 278 …. 10.14 — v — (2007) 38 Fam LR 671 …. 9.60, 9.82 Davis & Davis (1976) 1 Fam LR 11,522; FLC ¶90-062 …. 3.15 Davis & Davis (1982) 8 Fam LR 975; FLC ¶91-319 …. 3.15 Davut and Raif (1994) 18 Fam LR 237; FLC ¶92-503 …. 13.15 Dawes, Marriage of (1989) 13 Fam LR 599; (1990) FLC ¶92-108 …. 14.12, 14.21 Day, Marriage of (1992) 109 FLR 148; (1993) FLC ¶92-333 …. 11.37 Day, Marriage of (1994) FLC ¶92-505 …. 8.66 De Andrade, Marriage of (1995) 19 Fam LR 271 …. 12.39 De Angelis v De Angelis (2000) 27 Fam LR 133; (2001) FLC ¶93-067 …. 3.23 De Angelis & De Angelis (1999) 30 Fam LR 304; (2003) FLC ¶93-133 …. 13.21, 14.36 De Gier, Marriage of (1991) 14 Fam LR 796; FLC ¶92-235 …. 11.79 De L v Director-General NSW Dept of Community Services (1996) 187 CLR 640; 20 Fam LR 390; FLC ¶92-706; [1996] HCA 5 …. 8.75, 8.149, 8.155, 8.158 De Lewinski v Director-General New South Wales Department of Community Services (1996) 136 ALR 201; 70 ALJR 532 …. 8.149 De Lewinski v Director-General, New South Wales Department of Community Services (1997) 21 Fam LR 413; FLC ¶92-737 …. 8.154, 8.158 De Smeth, Marriage of (1992) 16 Fam LR 314; (1993) FLC ¶92-349 …. 11.91 Degraves v Searle [2013] FCCA 660 …. 2.60, 2.61 Dein and Dein (1989) 12 Fam LR 853; FLC ¶92-014 …. 14.66

Deiter & Deiter [2011] FamCAFC 82 …. 9.122 Dekker & Dekker [2014] FCWA 61 …. 13.38 Delahey & Garra-Marsh [2015] FCCA 84 …. 15.49 Delamarre v Asprey [2013] FamCA 214 …. 5.109 — v — (2014) FLC ¶93-616 …. 5.102 Dench & Dench (1978) 6 Fam LR 105; FLC ¶90-469 …. 10.36, 14.67 Deniz, Marriage of (1977) 31 FLR 114; 7 Fam LN N3; FLC ¶90-252 …. 6.32, 6.34, 6.35, 6.37 Dennett & Norman [2007] FamCA 57 …. 9.60 Dennis & Pradchaphet [2011] FamCA 123 …. 7.51 Dennison v Wang [2010] FamCAFC 182 …. 9.91, 9.106 Department of Communities, Child Safety and Disability Services v Garning (Discharge Application) [2012] FamCA 839 …. 8.158 Department of Community Services & Frampton (2007) 37 Fam LR 583; FLC ¶93-340 …. 8.157 Department of Community Services & Raddison [2007] FamCA 1702 …. 8.153 Department of Family and Community Services & Haura [2015] FamCA 72 …. 8.117 Department of Family and Community Services & Raho [2013] FamCA 530 …. 8.155 Department of Family and Community Services & Valli [2013] FamCA 1004 …. 8.155 Department of Human Services v Brouker (2010) 44 Fam LR 486; FLC ¶93-446 …. 3.17 Deputy Child Support Registrar v Willemse (1994) FLC ¶92-510 …. 11.54 Deputy Child Support Registrar & Froehlich (1990) 14 Fam LR 526; (1991) FLC ¶92-203 …. 11.55 Deputy Child Support Registrar & Harrison (1995) 20 Fam LR 101; (1996) FLC ¶92-656 …. 11.54 Devonshire v Hyde (2002) DFC ¶95-247; [2002] NSWSC 30 …. 10.54 Devopoulos & Devopolous [2014] FamCA 224 …. 13.33 Dickons & Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154 …. 14.8, 14.47 Dickson, Marriage of (1999) 24 Fam LR 460; FLC ¶92-843 …. 14.61 Diessel & Diessel (1980) 6 Fam LR 1; FLC ¶90-841 …. 6.98 Diggins, Marriage of (1992) FLC ¶92-299 …. 7.11 Director-General, Department of Child Safety v Milson [2008] FamCA 872 …. 8.156 Director-General, Department of Communities, Child Safety and Disability Services & Delaney (No 2) [2015] FamCA 683 …. 8.157 Director-General, Department of Community Services (NSW) v D (2007) 37 Fam LR 595 …. 9.59, 9.130 Director-General, Department of Community Services v M & C (1998) 24 Fam LR 178; FLC ¶92-829; [1998] FamCA 1518 …. 8.155 Director-General, Department of Families & RSP (2003) 30 Fam LR 566; FLC ¶93-152 …. 8.157

Director-General, Department of Families, Youth & Community Care v Reissner (1999) 25 Fam LR 330; FLC ¶92-862 …. 9.93 — v Bennett (2000) 26 Fam LR 71; FLC ¶93-011 …. 8.159 Director-General, Department of Family and Community Services & Tsvetan [2011] FamCA 796 …. 8.155 Director-General of Department of Community Services v Crowe (1996) 21 Fam LR 159; FLC ¶192-717 …. 8.156, 8.158 Director-General of Family and Community Services & Davis (1990) 14 Fam LR 381; FLC ¶92-182 …. 8.149, 8.157 Director-General of the Department of Human Services & Tran (2010) 44 Fam LR 1; FLC ¶93-433 …. 8.23 Director of Public Prosecutions (NI) v Lynch [1975] AC 653 …. 6.30 DJL v The Central Authority (2000) 201 CLR 226 …. 4.129 DJM v JLM (1998) 23 Fam LR 396; FLC ¶92-816 …. 10.4, 10.21, 10.25, 10.27, 11.82, 13.27, 13.28, 14.59 DL & W (2012) FLC ¶93-496 …. 2.43 Dobbs v Brayson (2007) 215 FLR 30; FLC ¶93-346; [2007] FamCA 1261 …. 8.138, 8.140 — v Brayson (No 2) (2007) 38 Fam LR 95; FLC ¶93-354 …. 8.130 Dodd & Dodd v Stuart (1976) 1 Fam LR 11,540 …. 8.103 Dodge & Krapf & Krapf, In the matter of (1991) FLC ¶92-214 …. 11.33, 11.38 Doherty, Marriage of (1995) 20 Fam LR 137; (1996) FLC ¶92-652 …. 10.45, 14.40 Doherty & Doherty (2006) FLC ¶93-256; [2006] FamCA 199 …. 15.11 Doherty & Doherty [2014] FamCAFC 20 …. 8.62 Donald & Forsyth (2015) 53 Fam LR 171; FLC ¶93-650; [2015] FamCAFC 72 …. 15.50 Donnell v Dovey (2010) 42 Fam LR 559; FLC ¶93-428; [2010] FamCAFC 15 …. 8.62, 9.61, 9.81, 9.83 Dornom & Dornom (1984) FLC ¶91-556 …. 12.38 Dougherty & Dougherty (1987) 163 CLR 278; 11 Fam LR 577; FLC ¶91-823 …. 12.42, 14.7 Douglas v Longano (1981) 147 CLR 212 …. 7.5 Dovey, Re; Ex parte Ross (1979) 141 CLR 526; (1979) 5 Fam LR 1; FLC ¶90-616 …. 15.14 Dowal v Murray (1978) 143 CLR 410 …. 4.55 Dow-Sainter, Marriage of (1980) FLC ¶90-890 …. 10.27 Doyle, Marriage of (1989) FLC ¶92-027 …. 12.36 Doyle, Marriage of (1992) 15 Fam LR 274; FLC ¶92-286 …. 9.68 DP v Commonwealth Central Authority; JLM v Director-General, New South Wales Department of Community Services (2001) 27 Fam LR 569; FLC ¶93-081 …. 8.149, 8.157 Drew, Marriage of; Lovett (Interveners) (1993) 16 Fam LR 536 …. 9.58 Dridi v Fillmore [2001] NSWSC 319 …. 10.54

DRP v AJL (2004) FLC ¶98-022 …. 11.66 DS v DS (2003) 32 Fam LR 352; FLC ¶93-165 …. 8.81, 8.83 Dudley v Chedi [2011] FamCA 502 …. 7.51, 8.48 Duff, Marriage of (1977) 3 Fam LR 11,211; FLC ¶90-217 …. 13.20, 13.22, 14.66 Duncan, Marriage of (1991) 104 FLR 335; FLC ¶92-218 …. 11.33 Dunne & P (No 2) (2004) 32 Fam LR 441; FLC ¶93-205 …. 3.23 Dunst & Dunst [2014] FamCA 964 …. 8.62, 8.112 Durham v Durham (1885) LR 10 PD 80 …. 6.47 Duroux v Martin (1993) 17 Fam LR 130; FLC ¶92-432 …. 7.11, 7.12 Dyer & Dyer (1977) FLC ¶90-299 …. 9.51

E E (children) (abduction: custody appeal), Re [2011] 4 All ER 517 …. 8.157 E & E (No 2), Marriage of (1979) 5 Fam LR 244; FLC ¶90-645 …. 9.58, 9.92 Eastman & Eastman [2015] FamCA 808 …. 15.15 Ebner & Pappas (2014) FLC ¶93-619; [2014] FamCAFC 229 …. 15.68, 15.71 Eddington & Eddington (No 2) (2007) FLC ¶93-349 …. 9.22 Edmore v Bala [2011] FamCA 731 …. 7.49 Edwards; Mark Edwards, the Estate of the Late, Re [2011] NSWSC 478 …. 7.30 Edwards & Edwards (2006) FLC ¶93-306 …. 8.107 EJK v TSL (2006) 35 Fam LR 559; FLC ¶93-287 …. 8.160 El Kazemde & Hanif [2014] FamCA 452 …. 8.112 Elder & Elder [2009] FamCAFC 224 …. 10.35 Elgin & Elgin [2015] FamCAFC 155 …. 13.19 Eliades, Marriage of (1981) 6 Fam LR 916; FLC ¶91-022 …. 10.18 Elizabeth, Re (1989) 13 Fam LR 47; FLC ¶92-023 …. 8.118 Elliott & Wilcox (1996) 20 Fam LR 567; FLC ¶92-687 …. 15.70 Ellison & Karnchanit (2012) 48 Fam LR 33; [2012] FamCA 602 …. 7.8, 7.10, 7.49, 7.52, 7.53 Elspeth v Peter [2006] FamCA 1385 …. 8.62, 9.5, 9.75, 9.76, 9.96 — v — [2007] FamCA 254 …. 8.141 Elspeth & Peter (2007) 37 Fam LR 696; FLC ¶93-341 …. 8.135 Engelbrecht & Moss [2015] FCWA 19 …. 13.38, 13.39 English & English (1986) 10 Fam LR 808; FLC ¶91-729 …. 3.15 Epperson v Dampney (1976) 10 ALR 227; FLC ¶90-061 …. 8.87, 9.11 Espie & Espie (1983) 9 Fam LR 123; FLC ¶91-347 …. 6.108 Eurfrosin & Eurfrosin [2014] FamCAFC 191 …. 13.40, 14.54 Evans, Marriage of (1990) 14 Fam LR 136; FLC ¶92-150 …. 6.100

Evans, Marriage of (1992) 15 Fam LR 749; FLC ¶92-320 …. 10.36 Evans v Bartlam [1937] AC 473 …. 4.122 — v Evans (1790) 1 Hag Con 35 …. 1.22 Evans & Evans (1978) FLC ¶90-435; 30 FLR 570 …. 10.23, 10.27 Evans & Spicer (1992) 15 Fam LR 749; FLC ¶92-320 …. 10.38 Evans & the Public Trustee (1991) 14 Fam LR 646; FLC ¶92-223 …. 12.36 Evelyn, Re (1998) 23 Fam LR 53; FLC ¶92-807 …. 7.40, 9.14, 9.54 Evelyn, Re (FamCA, Jordan J, 19 December 1997, unreported) …. 7.40 Everett & Everett [2014] FamCAFC 152 …. 11.29

F F, Re; Ex parte F (1986) 161 CLR 376 …. 4.55 F (Hague Convention: Child’s Objections), Re (2006) 36 Fam LR 183; FLC ¶93-277 …. 8.158 F v F (2007) 38 Fam LR 52 …. 9.121 — v Z (2005) 193 FLR 218; [2005] FMCAfam 394 …. 7.8, 7.10, 7.12 F & C & Child Representative [2004] FamCA 568 …. 8.107 F & F (1982) 8 Fam LR 29; FLC ¶91-214 …. 10.31, 10.34 F & N, Marriage of (1987) 11 Fam LR 664; FLC ¶91-813 …. 9.46, 9.47 F & R, Marriage of (1992) 15 Fam LR 533; FLC ¶92-300 …. 7.11, 7.14 F & R (No 2), Marriage of (1992) 15 Fam LR 662; FLC ¶92-314 …. 8.86 Faden & Faden [2014] FamCA 1182 …. 3.3 Fagan (dec’d), Re (1980) 6 Fam LR 813 …. 6.123 Falk, Marriage of (1977) 15 ALR 189; 29 FLR 463; 3 Fam LR 11,238; FLC ¶90-247 …. 6.65, 6.68, 6.70, 6.71, 6.82 Fan & Lok, Estate of the Late [2015] FamCA 300 …. 15.49 Fane-Thompson & Fane-Thompson (1981) 7 Fam LR 660; FLC ¶91-053 …. 13.15 Farmer v Bramley (2000) 27 Fam LR 316; FLC ¶93-060 …. 14.9, 14.10, 14.48, 14.49, 14.53, 14.54 Farnell, Marriage of (1996) 20 Fam LR 513; FLC ¶92-681 …. 13.27 Fedele & Fedele (1986) 10 Fam LR 1069; FLC ¶91-744 …. 3.15 Fellows v Fellows (1988) FLC ¶91-910 …. 15.72 Feltus, Marriage of (1977) 2 Fam LR 11,665; FLC ¶90-212 …. 6.85 Fencott v Muller (1983) 152 CLR 570 …. 4.6, 4.84 Fender v St John-Mildmay [1938] AC 1 …. 6.91 Fenech & Fenech (1976) 1 Fam LR 11,250; FLC ¶90-035 …. 6.66, 6.70 Fenton v Marvel (2013) FLC ¶93-550; [2013] FamCAFC 132 …. 5.93, 12.44 Ferguson, Marriage of (1978) 4 Fam LR 312; FLC ¶90-500 …. 10.33, 14.34

Ferraro, Marriage of (1992) 16 Fam LR 1; (1993) FLC ¶92-335 …. 13.14, 14.21, 14.22, 14.23, 14.25, 14.26, 14.27, 14.30, 14.31, 14.48 Fevia & Fevia (2009) 42 Fam LR 50; FLC ¶93-411 …. 15.49 Fewster & Drake [2015] FamCA 602 …. 15.50 Fickling, Marriage of (1996) 20 Fam LR 258; FLC ¶92-664 …. 14.67 Field & Field (1991) FLC ¶92-227 …. 11.53, 11.55 Fielding v Nichol (2014) FLC ¶93-617; [2014] FCWA 77 …. 13.18, 13.38, 13.40 Fields v Bower [2012] FamCA 189 …. 9.63 Fields & Smith (2015) 53 Fam LR 1; FLC ¶93-638; [2015] FamCAFC 57 …. 11.76, 14.7, 14.14, 14.31, 14.32, 14.50, 14.58 Figgins v Figgins (2002) 29 Fam LR 544; FLC ¶93-122 …. 11.76, 12.25, 14.28, 14.52 Findlay v Punyawong [2011] FamCA 503 …. 7.51 Firth & Firth (1988) 12 Fam LR 547; FLC ¶91-971 …. 9.73, 9.76 Fisher v Fisher (1986) 161 CLR 438; 11 Fam LR 11; FLC ¶91-767 …. 4.20, 4.45, 4.46, 12.33, 12.36 Fisher-Oakley & Kittur [2014] FamCA 123 …. 7.52 Fitzgerald (As child representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 Fam LR 123 …. 8.76 Fitzgerald v Fitzgerald (1869) LR 1 P & D 694 …. 6.62 Fitzgerald & Robinson (1978) 3 Fam LN No 78; FLC ¶90-401 …. 9.51, 9.52 Fitzpatrick & Fitzpatrick (2005) 33 Fam LR 272; FLC ¶93-227 …. 9.109 Flanagan v Handcock (2001) 181 ALR 184 …. 9.128 — v — (2001) 27 Fam LR 615; FLC ¶93-074 …. 3.17, 9.128, 9.129 FM v FM (1997) 21 Fam LR 237; (1996) FLC ¶92-738 …. 11.19 Folston v Folston [2009] FamCA 1118 …. 6.108 Fooks & McCarthy (1994) FLC ¶92-450 …. 9.130 Ford v Stier [1896] P 1 …. 6.44 Ford & Ford & Department of Child Safety (2007) FLC ¶93-337 …. 3.47 Forsythe v Latimer [2010] FMCAfam 478 …. 11.66 Foster & Foster (1977) FLC ¶90-281 …. 8.90 Fountain v Alexander (1982) 150 CLR 615 …. 4.55 Fowler & Fowler (1980) 5 Fam LR 750; FLC ¶90-808 …. 10.37 Fox v Public Trustee (1983) 9 Fam LR 275 …. 5.75 Fox & Kent [2015] FCCA 2143 …. 8.86 Fragomeli, Marriage of (1993) 16 Fam LR 698; FLC ¶92-393 …. 9.117 Franklin & McLeod (1993) 17 Fam LR 793 …. 15.72 Franks & Franks (1976) 1 Fam LR 11,341; FLC ¶90-032 …. 6.69 Freeman, Marriage of (1986) 11 Fam LR 293; (1987) FLC ¶91-857 …. 8.105 Freeman v Rouse [2007] FMCAfam 752 …. 9.6

French v Winter [2012] FMCAfam 256 …. 2.60 French & Fetala [2014] FamCAFC 57 …. 9.21 Fullgrabe & Fullgrabe [2015] FCWA 9 …. 13.38

G G v C [2006] FamCA 994 …. 9.27 — v G [2004] FamCA 1179 …. 4.125 — v H (1993) FLC ¶92-432 …. 7.10 — v — (1994) 18 Fam LR 180; FLC ¶92-504 …. 7.13 G & G [2007] FCWA 80 …. 7.28 Gabel & Meltzer [2014] FCCA 604 …. 9.107 Gabel & Yardley (2008) FLC ¶93-386 …. 15.39 Gainforth v Gainforth [2012] FamCAFC 24 …. 8.62 Gallaghan v Gallaghan (1966) 9 FLR 331 …. 9.96 Galloway & Midden (No 2) (2014) FLC ¶93-586; [2014] FamCAFC 60 …. 13.21 Gamble, Marriage of (1978) 4 Fam LN 28; FLC ¶90-452 …. 11.21, 11.29 Gamer & Gamer (1988) FLC ¶91-932 …. 14.20 Ganem & Ganem (No 2) [2013] FamCA 257 …. 8.141 Ganter v Whalland (2001) 28 Fam LR 260; DFC ¶95-240 …. 7.28, 7.29, 11.65 Gazzo v Comptroller of Stamps; Ex parte Attorney-General (Victoria) (1981) 149 CLR 227 …. 4.46 GDPW & IDPW (2004) 33 Fam LR 338; FLC ¶93-206 …. 4.67, 8.117 Gebert & Gebert (1990) 14 Fam LR 62; FLC ¶92-137 …. 15.70, 15.76 Gelley & Gelley (No 2) (1992) FLC ¶92-291 …. 15.31 Genish-Grant v Director-General, Department of Community Services (2002) 29 Fam LR 51; FLC ¶93-111 …. 8.157 George & Radford (1976) 1 Fam LR 11,510; FLC ¶90-060 …. 9.129 Georgeson, Marriage of (1995) 19 Fam LR 302; FLC ¶92-618 …. 14.21, 14.23 Georgiades & Georgiades [2015] FamCAFC 115 …. 13.29 Gerges, Marriage of (1990) 14 Fam LR 535; (1991) FLC ¶92-204 …. 11.78 Gibson & Gibson (1981) FLC ¶91-049 …. 9.63 Gillespie v Bahrin (1993) 16 Fam LR 642; (1992) FLC ¶92-388 …. 3.16 Gillick v West Norfolk & Wisbech Area Health Authority [1985] 3 All ER 402 …. 8.20, 8.30, 8.31, 8.32, 8.33, 8.34, 8.124, 9.41, 9.43, 9.96 Gillim & Gillim (No 2) (2014) FamCA 701 …. 15.16 Gilmore, Marriage of (1993) 16 Fam LR 285; FLC ¶92-353 …. 8.160, 12.39 Gilmour, Marriage of (1994) 18 Fam LR 646; (1995) FLC ¶92-591 …. 11.85 Gissing v Gissing [1971] AC 886 …. 12.14

Gitane & Velacruz (2008) 39 Fam LR 460; FLC ¶93-371 …. 15.68, 15.75 Godfrey v Sanders (2007) 208 FLR 287 …. 9.27 Gollins v Gollins [1964] AC 644 …. 1.32, 1.33 Goode v Goode (2006) 36 Fam LR 422; FLC ¶93-286 …. 8.26, 8.62, 8.63, 8.100, 8.101, 8.102, 9.3, 9.4, 9.121 Goodwin & Goodwin (1990) 14 Fam LR 801; (1991) FLC ¶92-192 …. 13.21, 13.24, 14.59 Gosper & Gosper (1987) 11 Fam LR 601; FLC ¶91-818 …. 14.51 Gotch v Gotch [2009] FamCAFC 3 …. 8.108 Goudge & Goudge (1984) 9 Fam LR 500; FLC ¶91-534 …. 9.78 Gough & Kaur [2012] FamCA 79 …. 7.52 Gould, Marriage of (1993) 17 Fam LR 156; FLC ¶92-434 …. 4.47 Gould, Marriage of (1995) 20 Fam LR 1; (1996) FLC ¶92-657 …. 14.7, 14.23, 14.48 Gould v Brown (1998) 193 CLR 346 …. 4.99, 4.101, 4.102 Gould & Gould; Swire Investments Ltd (1993) 17 Fam LR 156; FLC ¶92-434 …. 15.30, 15.32 Grabar & Grabar (1976) 2 Fam LR 11,581 …. 10.31 Graft v Mccormick [2014] FamCAFC 28 …. 2.27 Graham & Kovacs (No 4) [2015] FamCA 1073 …. 14.7 Grainger & Bloomfield [2015] FamCAFC 221 …. 15.50, 15.66 Grattan & Grattan (No 6) [2014] FamCA 1118 …. 15.15 Gravis v Major [2010] FamCAFC 239 …. 8.136 Grey v Pearson (1857) 10 ER 1216 …. 2.46 Graziano & Daniels, Marriage of (1991) 14 Fam LR 697; FLC ¶92-212 …. 8.149, 8.155 Green v Lord Penzance (1881) 6 App Cas 657 …. 4.23 Green-Wilson & Bishop [2014] FamCA 1031 …. 7.8, 7.49, 7.52, 7.54, 8.44, 8.45 Greer & Mackintosh [2013] FamCAFC 16 …. 14.17 Gregory & Gregory [2014] FCCA 106 …. 15.50 Greval & Greval (1990) 13 Fam LR 829; FLC ¶92-132 …. 15.27 Gronow v Gronow (1979) 144 CLR 513 …. 9.12, 9.24 Groth & Banks (2013) 49 Fam LR 510; [2013] FamCA 430 …. 7.23, 7.54 Gsponer v Johnstone (1988) 12 Fam LR 755; (1989) FLC ¶92-001 …. 8.155, 8.157 Guirguis v Guirguis (1997) FLC ¶92-726 …. 15.61 Guthrie & Guthrie (1995) 19 Fam LR 781 …. 14.59 Guthrie & Rushton [2009] FamCA 1144 …. 15.8 GWW & CMW, Re (1997) 21 Fam LR 612; FLC ¶92-748 …. 8.124 Gyselman, Marriage of (1991) 103 FLR 156; 15 Fam LR 219; (1992) FLC ¶92-279; [1991] FamCA 93 …. 11.29, 11.75, 11.76, 11.78, 11.79, 11.80, 11.84

H H, Marriage of (1981) 7 Fam LR 451; FLC ¶91-083 …. 11.28, 11.29 H, Marriage of (2003) 30 Fam LR 264; FLC ¶93-162 …. 9.77 H (an infant), Re [1964–65] NSWR 2004 …. 5.39 H, AE (No 2), Re [2012] SASC 177 …. 7.30 H v H [1954] P 258 …. 6.29 — v R [2006] FamCA 878 …. 9.66 H & C [2003] FMCAfam 329 …. 6.103 H & H (1994) 19 Fam LR 165; (1995) FLC ¶92-599 …. 9.54 H & P [2011] WASCA 78 …. 6.119 Habib & Habib (1988) 12 Fam LR 127; FLC ¶91-931 …. 11.14 Hack & Hack (1977) 6 Fam LR 425 …. 14.37 Hadjuk & Hadjuk (1993) FLC ¶92-383 …. 15.31 Hagan & Gerald [2013] FamCA 714 …. 13.33 Hagedorn, Marriage of (1988) 12 Fam LR 569; FLC ¶91-965 …. 11.12, 11.13 Halabi v Artillaga (1993) 17 Fam LR 675; (1994) FLC ¶92-470 …. 15.31, 15.33, 15.34 Halifax & Fabian [2010] FamCA 1212 …. 9.62 Hall, Marriage of (1979) 5 Fam LR 609; FLC ¶90-713 …. 8.90, 8.91 Hall, Marriage of (1979) 5 Fam LR 411; FLC ¶90-679 …. 8.59 Hall & Rushton (1991) 14 Fam LR 907; FLC ¶92-249 …. 11.80 Halston v Halston [2013] FMCAfam 16 …. 9.107 Hamblin v Dahl (2010) 239 FLR 111; [2010] FMCAfam 514 …. 5.97, 5.114 Hamilton & Nowak (1988) FLC ¶91-981 …. 11.17 Hamilton & Thomas [2008] FamCAFC 8 …. 14.45 Hamish & Brighton [2014] FamCAFC 242 …. 9.21, 9.23 Hankinson & De Vries [2015] FamCA 833 …. 14.60 Hannah & Hannah; Tozer & Tozer (1989) 13 Fam LR 531; FLC ¶95-052 …. 15.70 Haque v Haque (No 1) (1962) 108 CLR 230 …. 5.6 Harding & Watson [2014] FamCAFC 188 …. 8.108 Harnett v Harnett [1954] VLR 533 …. 9.11 Harricks v Harricks [2014] FCCA 2724 …. 2.62 Harridge v Harridge [2010] FamCA 445 …. 2.44 Harris, Marriage of (1977) FLC ¶90-276 …. 8.90 Harris, Marriage of (1991) 15 Fam LR 26; FLC ¶92-254 …. 13.24, 14.21, 14.45 Harris v Caladine (1991) 172 CLR 84 …. 15.38, 15.39 — v Harris (2010) 245 FLR 172; FLC ¶93-454 …. 8.150 Harris & Hadfield [2014] FamCAFC 41 …. 8.69 Harrison & Harrison (1996) 20 Fam LR 322; FLC ¶92-682 …. 13.21, 14.21

Harrison & Woollard (1995) 18 Fam LR 788; FLC ¶92-598 …. 8.34, 9.43 Hartnett v Baker (1995) 19 Fam LR 584; FLC ¶92-620 …. 11.86 Hashmi v Hashmi [1972] Fam 36 …. 5.6 Hauff & Hauff (1986) FLC ¶91-747 …. 15.4 Hay & Hay [2014] FCCA 775 …. 15.49 Hayman, Marriage of (1976) 2 Fam LR 11,558; FLC ¶90-140 …. 8.105, 9.53 Hayne & Hayne (1994) FLC ¶92-512 …. 11.4 Hayson & Hayson (1987) 11 Fam LR 593; FLC ¶91-819 …. 10.19 Hazan & Elias (2011) 45 Fam LR 475 …. 2.46 Heard & De Laine; Crown Solicitor for the State of South Australia (Intervener) (1996) 20 Fam LR 315; FLC ¶92-675 …. 8.76 Hearn v Woolcott [2014] FamCA 42 …. 15.38 Hearne & Hearne [2015] FamCAFC 178 …. 13.37, 14.42 Heath & Heath; Westpac Banking Corp (1983) 9 Fam LR 97; FLC ¶91-362 …. 15.31 Heath & Heath; Westpac Banking Corp (No 2) (1984) 9 Fam LR 642; FLC ¶91-517 …. 15.31, 15.33 Heaton & Heaton [2012] FamCAFC 139 …. 9.121 Heeks & Heeks (1980) FLC ¶90-804 …. 10.26 Heidt, Marriage of (1976) 1 Fam LR 11,576; FLC ¶90-077 …. 9.33, 9.51, 9.54 Henderson & Henderson (1948) 76 CLR 529 …. 1.30 Henderson & Henderson (1989) 13 Fam LR 40; FLC ¶92-011 …. 11.21, 11.28 Henry, Re; JL v Secretary, Department of Family and Community Services [2015] NSWCA 89 …. 3.44 Henry & Henry (1995) 20 Fam LR 171; (1996) FLC ¶92-685 …. 12.39 Hewer v Bryant [1970] 1 QB 357 …. 8.29 Hibberson v George (1989) 12 Fam LR 725; DFC ¶95-064 …. 6.118, 6.120 Hickey & Hickey (2003) 30 Fam LR 355; FLC ¶93-143 …. 13.9, 13.10, 13.14, 13.16, 13.18, 13.36, 14.56, 14.68, 15.4, 15.10, 15.71 Hill, Marriage of (2005) 32 Fam LR 552; FLC ¶93-209 …. 14.28, 14.34 Hill v Hill [1959] 1 All ER 281 …. 6.45, 6.46 Hine v Hine [1962] 3 All ER 345 …. 12.13 Hirst & Rosen, Marriage of (1982) 8 Fam LR 251; FLC ¶91-230 …. 10.26, 14.18 Hiu v Ling [2010] FamCA 743 …. 5.83, 6.18 Hodak & Hodak v Newman (1993) 17 Fam LR 1; FLC ¶92-421 …. 9.59 Hodges, Marriage of (1977) 2 Fam LR 11,524; FLC ¶90-203 …. 6.83 Hoffman & Hoffman (2014) 51 Fam LR 568; FLC ¶93-591; [2014] FamCAFC 92 …. 8.106, 9.24, 11.76, 12.23, 14.2, 14.4, 14.5, 14.6, 14.27, 14.30, 14.31 Hogue, Marriage of (1977) 3 Fam LR 11,290; FLC ¶90-259 …. 8.90 Holden & Wolff (2014) 52 Fam LR 60; FLC ¶93-621 …. 12.44

Holmes, Marriage of (1988) 12 Fam LR 103; FLC ¶91-918 …. 9.117 Homsy, Yassa and the Public Trustee (1993) 17 Fam LR 299; (1994) FLC ¶92-442 …. 14.44 Hooshmand & Ghasmezadegan (2000) FLC ¶93-044 …. 6.108 Hope, Marriage of (1977) 3 Fam LN 6; FLC ¶90-294 …. 10.26, 10.27 Hopes v Hopes [1949] P 227 …. 6.74, 6.77 Horman, Marriage of (1976) 5 Fam LR 796; FLC ¶90-024 …. 8.59, 9.67, 9.68 Hort v Verran (2009) FLC ¶93-418 …. 9.83 Horton, Marriage of (1983) 9 Fam LR 924; FLC ¶91-368 …. 6.103 Hosking, Marriage of (1994) 121 FLR 196; 18 Fam LR 581; FLC ¶92-579 …. 6.37, 6.38 Houghton v Arms (2006) 225 CLR 553 …. 4.87 Houlihan, Marriage of (1991) 14 Fam LR 910; FLC ¶92-248 …. 11.80 Hoult v Hoult (2013) 50 Fam LR 260; FLC ¶93-546 …. 15.56, 15.57, 15.58, 15.59 House v The King (1936) 55 CLR 499; [1936] HCA 40 …. 4.122, 4.124, 4.125, 14.3 Hubert v Juntasa [2011] FamCA 504 …. 7.51, 7.52 Hudson & Hudson (1986) 11 Fam LR 189 …. 15.31 Hugh v Sawer [2011] FamCA 48 …. 8.148 Hughes & Hughes (1984) 9 Fam LR 610; FLC ¶91-549 …. 15.15 Hughes-Kempe & Kempe & Bocampe Pty Ltd (2005) FLC ¶93-237 …. 15.23 Hunt, Marriage of (1977) 3 Fam LR 11,144; FLC ¶90-219 …. 6.83 Hunt v Hunt (2006) 208 FLR 1; 36 Fam LR 64; [2006] FamCA 167 …. 4.47, 4.87, 15.24, 15.30 Hussein (otherwise Blitz) v Hussein [1938] P 159 …. 6.28 Hutchens & Franz [2009] FamCA 414 …. 7.46 Hutchings v Clarke (1993) 16 Fam LR 452; FLC ¶92-373 …. 8.66 Hyde v Hyde & Woodmansee (1866) LR 1 P & D 130; [1861–73] All ER Rep 175 …. 1.52, 4.3, 4.11, 5.4, 5.6, 5.56, 6.43, 6.111

I I & I (1995) 19 Fam LR 147; FLC ¶92-604 …. 9.117 Ibbotson & Wincen (1994) 18 Fam LR 164; FLC ¶92-406 …. 8.141 Inaya (Special Medical Procedure), Re (2007) 38 Fam LR 546 …. 8.124 Indyka v Indyka [1969] 1 AC 33 …. 4.108, 12.38 Infant, Re an (1963) 6 FLR 12 …. 5.48 Infant, Re an [1970] WAR 139 …. 5.48 Irish v Michelle [2009] FamCA 66 …. 1.91 Irvin & Carr (2007) FLC ¶93-322 …. 8.130 Irving & Tatupa [2013] FamCA 358 …. 8.48

Isdale & Dore (1997) 22 Fam LR 560; (1998) FLC ¶92-798 …. 11.4 Ivanfy & Ivanfy (1978) 4 Fam LR 452; FLC ¶90-512 …. 15.31

J J v C [1970] AC 668 …. 9.58 — v D (2000) 27 Fam LR 455; FLC ¶93-062 …. 7.12 — v Leishke [1987] ALJR 143 …. 8.31 — v W (1999) 25 Fam LR 299; FLC ¶92-858 …. 9.70 J & Director-General, Department of Community Services, Re [2003] FamCA 929 …. 8.153 Jacks v Samson (2008) 221 FLR 307; FLC ¶93-387 …. 8.125, 9.94 Jackson & Jackson (1988) FLC ¶91-904 …. 14.11 Jackson & Macek [2015] FamCAFC 114 …. 9.20, 9.70 Jacobs v Davis [1917] 2 KB 532 …. 5.20 Jacobs & Kirby [2014] FamCA 231 …. 8.117 Jacobsen & Jacobsen (1987) 11 Fam LR 990 …. 10.26 Jacobson & Jacobson (1989) FLC ¶92-003 …. 14.48 Jacombe v Jacombe (1961) 105 CLR 355 …. 5.75 Jaeger, Marriage of (1994) 18 Fam LR 126; FLC ¶92-492 …. 1.74, 9.34 Jamie, Re (2012) FLC ¶93-497 …. 8.124 Jamie, Re [2013] FamCAFC 110 …. 3.6, 8.4, 8.33, 8.34, 8.124 Jamie (special medical procedure), Re [2011] FamCA 248 …. 8.124 Jamine v Jamine (No 2) [2010] FamCAFC 133 …. 6.91 Jane, Re (1988) 12 Fam LR 662; FLC ¶92-007 …. 8.118 Jarman & Lloyd (1982) 8 Fam LR 878 …. 9.68, 9.69 JE & BG (1994) 18 Fam LR 225; FLC ¶92-516 …. 1.74 Jeeves & Jeeves [2010] FamCA 488 …. 15.50 JEL v DDF (2000) 28 Fam LR 1; (2001) FLC ¶93-075 …. 13.14, 14.24, 14.25, 14.27, 14.28, 14.30, 14.58 Jenner & Jenner (1983) 9 Fam LR 549; (1984) FLC ¶91-544 …. 15.4 Jennings, Marriage of (1997) 139 FLR 273; 22 Fam LR 510; FLC ¶92-773 …. 6.71 Jetts v Maker [2010] FamCAFC 55 …. 8.129, 8.141 JFL & TP (1999) FLC ¶92-870 …. 7.12 JG & BG, Marriage of (1994) 18 Fam LR 255; FLC ¶92-515 …. 9.35 JJT, Re; Ex parte Victoria Legal Aid (1998) 195 CLR 155; 155 ALR 251; 23 Fam LR 1; FLC ¶92-812 …. 8.76 JJT v CTT (2004) FLC ¶93-198 …. 8.44 JLM v Director-General, New South Wales Department of Community Services (2001) 27 Fam LR 569 …. 8.157

Joannou, Marriage of (1985) FLC ¶91-642 …. 9.42, 9.44 Johnson v Chompunut [2011] FamCA 505 …. 7.51, 7.52 — v Johnson [1964] VR 604 …. 6.78 Johnson & Page (2007) FLC ¶93-344 …. 9.107 Jollie & Dysart [2014] FamCAFC 149 …. 8.45, 8.148, 9.5 Jolly & Jolly (1978) FLC ¶90-458 …. 3.15 Jonah v White (2011) 45 Fam LR 460; [2011] FamCA 221 …. 5.98, 5.100, 5.101, 5.104, 5.107, 5.108, 5.113 Jonah v White (2012) 48 Fam LR 562; FLC ¶93-522 …. 5.101, 5.104, 5.107, 6.119 Jones v Grech (2001) 27 Fam LR 711 …. 5.95 — v Maynard [1951] Ch 572 …. 12.13 Judiciary and Navigation Acts, Re (1921) 29 CLR 257 …. 4.23 Jurchenko & Foster [2014] FamCAFC 127 …. 9.120, 9.121 Jurd v Public Trustee [2001] NSWSC 632 …. 10.54 Jurss & Jurss (1976) 1 Fam LR 11,203; FLC ¶90-041 …. 8.58

K K (A Minor: Custody), Re (1990) 2 FLR 64 …. 8.98 K (an infant), Re [1964] ALR 363 …. 5.38 K, Estate of the late (1996) 5 Tas R 365 …. 7.29 K, Re (1994) 17 Fam LR 537; FLC ¶92-461 …. 8.75, 8.78 K v Cullen (1994) 18 Fam LR 636 …. 5.36, 5.41, 5.43 K & K (1992) 15 Fam LR 285 …. 9.104 Kades v Kades (1961) 35 ALJR 251 …. 9.10 Kajewski, Marriage of (1978) 31 FLR 500n; 4 Fam LN N42; FLC ¶90-472 …. 10.30, 10.34 Kaljo & Kaljo (1978) 4 Fam LR 190; FLC ¶90-445 …. 10.37 Kane & Kane [2011] FamCA 480 …. 14.29 Kane & Kane (2013) 50 Fam LR 489; FLC ¶93-569 …. 14.8, 14.29 Kapadia, Marriage of (1991) 14 Fam LR 883; FLC ¶92-245 …. 5.80, 6.108 Katzer v Katzer [2011] FMCAfam 85 …. 2.28 Kauiers & Kauiers (1987) 11 Fam LR 41; (1986) FLC ¶91-708 …. 10.34 Kaule & Brown [2015] FamCA 480 …. 13.35, 13.40 Kavan & Mallery [2013] FCCA 210 …. 13.21 Kavanagh v Metzger [2010] FamCAFC 201 …. 14.60 Kay v Jasper [2007] FamCA 1646 …. 9.60 KD (a Minor) (Ward: Termination of Access), Re [1988] 1 AC 806 …. 9.88 Keach & Keach (2007) FLC ¶93-353 …. 8.100 Kearney & Dillon [2013] FamCA 630 …. 11.76

Keaton v Aldridge (2009) 223 FLR 158; [2009] FMCAfam 92 …. 5.93, 5.103, 5.105, 5.107, 5.108, 5.110, 5.111, 5.112, 5.116, 6.115, 7.19 Keaton & Keaton (1986) FLC ¶91-745 …. 9.96 Kecskemethy v Magyar [1962] NSWR 547 …. 6.28 Keehan & Keehan [2015] FamCAFC 122 …. 14.65 Kelada, Marriage of (1984) 9 Fam LR 576; FLC ¶91-503 …. 6.89 Kelly v Temple [2011] FMCAfam 683 …. 6.121 Kelly (orse Hyams) v Kelly (1932) 49 TLR 99 …. 6.44 Kelly & Kelly (No 2) (1981) 7 Fam LR 762; FLC ¶91-108 …. 13.22, 14.18 Keltie v Keltie & Bradford (2002) 29 Fam LR 114; FLC ¶93-106 …. 11.7, 11.26, 11.33, 11.38 Kemsley, Marriage of (1984) 10 Fam LR 125; FLC ¶91-567 …. 3.14, 3.18 Kennon, Marriage of (1997) 22 Fam LR 1; FLC ¶92-757 …. 1.79, 4.98, 10.45, 14.24, 14.34, 14.41, 14.42, 14.43, 14.68 Kennon v Spry (2008) 238 CLR 366; 251 ALR 257; 40 Fam LR 1; FLC ¶93-388 …. 13.25, 15.17, 15.27 Kent & Pigot, Marriage of (1982) 8 Fam LR 537 …. 4.51 Kessey, Marriage of (1994) 18 Fam LR 149; FLC ¶92-495 …. 14.23, 14.51 Kevin: Validity of Marriage of Transsexual, Re (2001) 28 Fam LR 158; FLC ¶93-087 …. 5.13 Kevin (Validity of Marriage of Transsexual), Re (2003) 172 FLR 300; 30 Fam LR 1; FLC ¶93-127 …. 6.43, 6.108 Keyssner & Keyssner (1976) 1 Fam LR 11,562; FLC ¶90-075 …. 6.87 Keyush v Dhupam [2011] FamCA 259 …. 9.22 Khaddour & Jaouhara [2004] FMCAfam 287 …. 13.5 Khan v Khan [1963] VR 203 …. 5.6, 6.111 Kiesinger & Paget (2008) 216 FLR 445; [2008] FamCAFC 23 …. 10.4, 10.22, 10.26 Kilah v Director-General, Department of Community Services (2008) 39 Fam LR 431; FLC ¶93-373 …. 8.154, 8.156, 8.157 King v Finneran (2001) FLC ¶93-079 …. 8.107 — v Jones (1972) 128 CLR 221 …. 4.22 — v Phanphumong [2010] FamCA 1206 …. 8.48 King & Aames [2013] FamCA 263 …. 8.132 Kings & Murray [2009] FamCA 565 …. 9.106 Kirby & Watson (1977) 3 Fam LR 11,318; FLC ¶90-261 …. 5.75, 5.76 Kitson v Calise [2013] FCCA 1931 …. 2.61 Klintock v Ferder (2010) 43 Fam LR 135; [2010] FamCA 162 …. 4.88, 5.93 KN & Child Representatives v NN & JN (2006) 35 Fam LR 518; FLC ¶93-284 …. 9.59 KN & SD & Department of Immigration & Multicultural & Indigenous Affairs (2003) 30 Fam LR 394; FLC ¶93-148 …. 3.17

Knibbs & Knibbs [2009] FamCA 840 …. 8.86 Knightley v Brandon (2013) 272 FLR 332; [2013] FMCAfam 148 …. 9.107 Koch & Koch (1977) FLC ¶90-312 …. 12.42 Koldsjor v Addington [2009] FamCAFC 21 …. 9.128 Korsky & Bright (No 2) (2007) 38 Fam LR 106; FLC ¶93-352; [2007] FamCA 1512 …. 15.70 Kostres & Kostres (2009) 42 Fam LR 336; FLC ¶93-420 …. 15.49 Kotsis v Kotsis (1970) 122 CLR 69 …. 4.33 Koufalakis v Koufalakis (1963) 4 FLR 310 …. 6.66 Kouper & Kouper (No 3) [2009] FamCA 1080 …. 13.28 Kousal & Tack (2002) 30 Fam LR 581; (2003) FLC ¶93-134 …. 5.76 Koutalis & Bartlett (1994) 17 Fam LR 722; FLC ¶92-478 …. 9.109, 9.110 Kowaliw, Marriage of (1981) FLC ¶91-092 …. 13.28, 13.32, 14.34, 14.35, 14.36 Kowalski, Marriage of (1992) 16 Fam LR 235; (1993) FLC ¶92-343 …. 12.33 Krebs, Marriage of (1976) 2 Fam LR 11,341; FLC ¶90-117 …. 6.103 Kreet v Sampir (2011) 252 FLR 234; 44 Fam LR 405 …. 6.30, 6.34 Kress, Marriage of (1976) 2 Fam LR 11,330; FLC ¶90-126 …. 8.59, 9.12, 9.66 Krotofil, Marriage of (1980) FLC ¶90-909 …. 12.42 Kuebler, Marriage of (1978) 4 Fam LN 4; FLC ¶90-434 …. 8.144 Kwon & Kwon (1993) 16 Fam LR 574; FLC ¶92-379 …. 15.31

L L, Marriage of (1984) 9 Fam LR 1033; FLC ¶91-563 …. 10.31 L, Marriage of (1991) 15 Fam LR 157; (1992) FLC ¶92-274 …. 8.105 L v T (1999) 25 Fam LR 590; FLC ¶92-875; [1999] FamCA 1699 …. 8.45, 8.125 L & L (1983) FLC ¶91-353 …. 9.69 L & M; Director General, Department of Family Services and Aboriginal and Islander Affairs (1993) 17 Fam LR 357; (1994) FLC ¶92-449 …. 8.120 La Rocca, Marriage of (1991) 14 Fam LR 715; FLC ¶92-222 …. 15.70, 15.72 Lalor, Marriage of (1989) 14 Fam LR 282; (1990) FLC ¶92-164 …. 14.21, 14.48, 14.59 Lanceley, Marriage of (1994) 18 Fam LR 71; FLC ¶92-491 …. 13.11 Lane & Lane (1976) 1 Fam LR 11,385; FLC ¶90-055 …. 6.66, 6.70 Langmeil & Grange [2013] FamCAFC 31 …. 3.6 Lansell v Lansell (1964) 110 CLR 353 …. 4.22, 4.25, 4.26, 4.29, 4.37, 12.16, 12.37 Lao & Lao [2014] FamCA 275 …. 11.76 Lawler & Lawler (1989) 12 Fam LR 319; FLC ¶91-927 …. 10.36, 14.20, 14.45, 14.59, 14.66 Law-Smith & Seinor (1989) 13 Fam LR 397; FLC ¶92-050 …. 15.15 Layton & Layton [2014] FamCAFC 126 …. 13.32

LDME v JMA (SSAT Appeal) (2007) 38 Fam LR 132; FLC ¶98-034 …. 11.74 Le Mesurier v Connor (1929) 42 CLR 481 …. 4.33 — v Le Mesurier [1895] AC 517 …. 4.105 Lederer v Hunt (S109/2006) …. 4.47, 15.24, 15.30 Lee & Hutton (2013) 50 Fam LR 322; [2013] FamCA 745 …. 8.116, 12.44 Lee Steere, Marriage of (1985) 10 Fam LR 431; FLC ¶91-626 …. 13.14, 13.19, 14.57 Leibinger & Leibinger (No 1) (1985) 11 Fam LR 33; (1985) FLC ¶91-727 …. 12.33 Leibinger & Leibinger (No 2) (1986) FLC ¶91-775 …. 3.9 LeMay v Clark (2006) DFC ¶95-327; [2005] FCWA 23 …. 5.97, 5.114, 6.122 Lenehan & Lenehan (1987) 11 Fam LR 615; FLC ¶91-814 …. 14.16 Lengyel v Rasad (1989) 99 FLR 130; 13 Fam LR 648; FLC ¶92-112 …. 6.4 Leonards v Leonards [1961] VR 334 …. 6.28, 6.106 Lesley (Special Medical Procedures), Re [2008] FamCA 1226 …. 8.124 Lester & Lester (2014) FamCAFC 209 …. 14.58, 14.64, 14.65 Lester v Lester (2007) 36 Fam LR 488 …. 5.74, 6.108 Levine v Levine [2011] FMCAfam 821 …. 11.66 Liesert v Nutsch (1996) FLC ¶92-665 …. 11.85 Linch & Linch [2014] FamCACF 69 …. 14.47, 15.11 Linder & Linder [2013] FamCA 988 …. 14.13 Lindsey, Marriage of (1995) 19 Fam LR 649; FLC ¶92-638 …. 3.20 Line, Marriage of (1997) 21 Fam LR 259; FLC ¶92-729 …. 8.144 Little & Little (1990) 14 Fam LR 118; FLC ¶92-147 …. 14.67 LK v Director-General, Department of Community Services (2009) 237 CLR 582 …. 8.154 Lloyd v Lloyd and Child Representative (2000) FLC ¶93-045 …. 8.86 Logan & Logan (2013) FLC ¶93-555; [2013] FamCAFC 151 …. 15.58 Lonard & Lonard (1976) 2 Fam LR 11, 116 …. 9.63 Loogman & Loogman (1990) 14 Fam LR 320; FLC ¶92-158 …. 11.89 Lorreck & Watts [2012] FamCAFC 75 …. 9.122 Lotta & Lotta [2015] FamCA 360 …. 15.58 Lotta & Lotta (No 2) [2015] FamCA 551 …. 10.39 Love v Henderson (1996) 20 Fam LR 128; FLC ¶92-653 …. 11.4 Love & Love (1989) 17 Fam LR 263; (1994) FLC ¶92-441 …. 12.36 Love & Lundy [2015] FCCA 2382 …. 9.62 Lovell v Lovell (1950) 81 CLR 513 …. 4.125, 9.10 Lovine & Connor (2012) FLC ¶93-515; [2012] FamCAFC 168 …. 14.4, 14.5, 14.8 Lowe & Harrington (1997) 21 Fam LR 583; FLC ¶92-747 …. 15.70 LSH, Re; Ex parte RTF (1987) 164 CLR 91 …. 4.48, 4.49, 4.51 Luckie, Marriage of (1989) 13 Fam LR 223; FLC ¶92-036 …. 11.14

Lusito v Lusito (2011) 247 FLR 473 …. 7.19 Lynette, Re (1999) 25 Fam LR 352; FLC ¶92-863 …. 9.62, 9.73 Lyris & Hatziantoniou, Marriage of (1998) 24 Fam LR 391; (1999) FLC ¶92-840 …. 8.76

M M (Contact: Violent Parent), Re [1999] 2 FLR 321 …. 9.38 M v F (2006) 36 Fam LR 519 …. 9.100, 9.101 — v M (1988) 12 Fam LR 606; FLC ¶91-979 …. 9.31, 9.101, 9.103, 9.104, 9.106, 9.107, 9.111 — v — (2000) FLC ¶93-006 …. 9.36 — v — (2006) 37 Fam LR 150; FLC ¶93-281 …. 15.11 — v S (2006) 37 Fam LR 32; (2007) FLC ¶93-313; [2006] FamCA 1408 …. 9.26, 9.27, 9.116, 9.121 M & H (1996) FLC ¶92-695 …. 9.105 — & L (Aboriginal culture) (2007) 37 Fam LR 317; FLC ¶93-320 …. 9.36, 9.81 M & M (1988) 166 CLR 69 …. 3.45 MacKenzie & MacKenzie (1978) 4 Fam LR 374; FLC ¶90-496 …. 13.2, 13.4 Macks, Re; Ex parte Saint (2000) 204 CLR 158 …. 4.104 Macris & Galanis [2015] FamCAFC 234 …. 14.47 Maday, Marriage of (1985) 10 Fam LR 357; FLC ¶91-636 …. 9.47 Madin & Palis (2015) FLC ¶93-647; [2015] FamCAFC 65 …. 6.115, 13.6 Magill v Magill (2005) 33 Fam LR 193; Aust Torts Reports 81-783 …. 11.67 — v — (2006) 226 CLR 551; 231 ALR 277; 36 Fam LR 1 …. 4.69, 6.37, 11.66, 11.67 Mahon & Mahon (1982) FLC ¶91-242 …. 14.13 Mahoney & McKenzie (1993) 16 Fam LR 803; FLC ¶92-408 …. 9.130 Main v Main (1949) 78 CLR 636 …. 6.61, 6.76 Mains & Redden [2011] FamCAFC 184 …. 8.124 Malcolm v Monroe [2011] FamCAFC 16 …. 9.121 Malcolm & Malcolm (1977) 28 FLR 125; FLC ¶90-220 …. 10.19 Maldera v Orbel [2014] FamCAFC 135 …. 8.75, 8.91, 8.132, 9.26 Mallet v Mallet (1984) 156 CLR 605; 9 Fam LR 449 …. 4.125, 12.5, 14.18, 14.19, 14.20, 14.21, 14.22, 14.25, 14.30, 14.32, 14.60, 14.68 Manby v Scott [1558–1774] All ER Rep 274; (1663) 1 Mod Rep 124; 83 ER 1065 …. 10.6 Manning, Marriage of (1977) 29 FLR 418; 3 Fam LR 11,518; FLC ¶90-298 …. 6.19, 6.20 Manning & Manning (No 2) (1978) 32 FLR 481; 4 Fam LR 173; FLC ¶90-456 …. 6.20 Mansfield & Mansfield (1991) 14 Fam LR 531; FLC ¶92-206 …. 11.81 Mapstone & Mapstone (1979) 5 Fam LR 205; FLC ¶90-681 …. 10.27 Marion, Re (1990) 14 Fam LR 427; (1991) FLC ¶92-193 …. 4.57, 4.58, 4.59, 4.61, 4.67

Marion (No 2), Re (1993) 17 Fam LR 336; (1994) FLC ¶92-448 …. 8.120, 8.123 Maritime National Fish Ltd v Ocean Trawlers Ltd [1935] AC 524 …. 15.72 Mark (An application relating to parental responsibilities), Re (2002) 28 Fam LR 579; FLC ¶93-096 …. 7.20 Mark (An application relating to parental responsibilities), Re (2003) 31 Fam LR 162; FLC ¶93-173 …. 7.8, 7.20, 7.23, 7.46, 7.50, 11.65 Marker v Marker [1998] FamCA 42 …. 13.27 Marlowe-Dawson & Dawson (No 2) [2014] FamCA 599 …. 13.21 Marras & Marras (1985) 10 Fam LR 47; (1985) FLC ¶91-635 …. 11.14 Marsden v Winch (2009) 42 Fam LR 1 …. 8.108 — v — (No 3) [2007] FamCA 1364 …. 9.26 Marsh, Marriage of (1993) 17 Fam LR 289; (1994) FLC ¶92-443 …. 14.44 Marsh & Marsh (2014) 51 Fam LR 540; FLC ¶93-576 …. 14.10, 14.49, 14.59, 14.60 Martin v Martin [1941] N I 1 …. 5.37 — v — (1959) 110 CLR 297 …. 12.15 Martin & Newton [2011] FamCAFC 233 …. 13.15 Martiniello & Martiniello (1981) 7 Fam LR 299; FLC ¶91-050 …. 15.15 Marvel v Marvel (2010) 43 Fam LR 348 …. 8.62, 9.7 Marven v Marven (1919) 36 TLR 106 …. 1.26 Mason & Mason (1993) 17 Fam LR 269; (1994) FLC ¶92-446 …. 12.36 Mason & Mason [2013] FamCA 424 …. 7.53, 7.54 Masoud & Masoud [2013] FamCA 763 …. 11.76 Mathieson, Marriage of (1980) 6 Fam LR 116; (1977) FLC ¶90-230 …. 8.59, 9.12, 9.51, 9.54 Mathieson & Hamilton [2006] FMCAfam 238 …. 11.17 Mauger v Mauger (1966) 7 FLR 484 …. 9.74 — v — (No 1) (1966) 10 FLR 285 …. 9.74 Maunder v Maunder (1999) 25 Fam LR 579; FLC ¶92-871 …. 6.100 Maurer v Van Laren [2012] FamCA 8 …. 1.91 Maurice v Barry (2010) 44 Fam LR 62; [2010] FamCA 687 …. 7.11, 7.19 MAV v NTV [2005] FMCAfam 261 …. 11.80 Maxwell & Maxwell (1976) 1 Fam LN No 27 …. 9.13 Maxwell & Miltiadis (2015) FamCAFC 40; FLC ¶93-644 …. 15.39 Mayne & Mayne (2011) 46 Fam LR 197; FLC ¶93-479 …. 13.28 Mazorski v Albright (2007) 37 Fam LR 518 …. 9.27, 9.82, 9.121 Mazur, Marriage of (1976) 2 Fam LR 11,311; FLC ¶90-132 …. 9.95 Mazur, Marriage of (1991) 15 Fam LR 574; (1992) FLC ¶92-305 …. 9.96 Mazurka v Mazurka [2011] FamCAFC 68 …. 9.20 McBain, Re; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372; 188

ALR 1 …. 7.33 McBain v Victoria (2000) 99 FCR 116 …. 7.33 McCall v Clark (2009) 41 Fam LR 483; FLC ¶93-405; [2009] FamCAFC 92 …. 8.75, 9.16, 9.21, 9.27 — v — (No 3) [2010] FMCAfam 1443 …. 9.16 McCall & McCall; State Central Authority (Applicant); Attorney-General (Cth) (Intervener) (1995) FLC ¶92-551 …. 8.153 McCall & State Central Authority; Attorney-General (Cth) (Intervenor) [1994] FamCA 120 …. 8.159 McClintock v Levier (2009) FLC ¶93-401; [2009] FamCAFC 62 …. 8.136, 8.138 McCoy v Wessex (2007) 38 Fam LR 513 …. 9.111 McDonald v Director-General, Department of Community Services, New South Wales (2006) FLC ¶93-297 …. 8.157 McDougall, Marriage of (1976) 1 Fam LR 11,581; FLC ¶90-076 …. 14.11 McGlennan v Don [2011] FamCA 204 …. 2.28 McGregor v McGregor [2012] FamCAFC 69 …. 9.20 McIntyre (1994) FLC ¶92-468 …. 15.70 McK & K v O (2001) FLC ¶93-089 …. 7.10, 7.11, 7.14 McKay, Marriage of (1984) 9 Fam LR 850; FLC ¶91-573 …. 4.87 McKee, Marriage of (1977) FLC ¶90-258 …. 8.90 McL, Marriage of (1989) 15 Fam LR 7; (1991) FLC ¶92-238 …. 9.78 McLay, In the Matter of (1996) 20 Fam LR 239; FLC ¶92-667 …. 14.16, 14.25, 14.27, 14.28 McLory v McLory [2010] FamCA 305 …. 8.134 McMahon & McMahon (1995) 19 Fam LR 99; FLC ¶92-606 …. 14.16 McMaster v Wyhler [2013] FamCA 989 …. 5.107, 5.108 McMillan v Jackson (1995) 19 Fam LR 183; FLC ¶92-610 …. 9.14 McNeill v McNeill’s Transport Pty Ltd (1985) 81 FLR 26 …. 12.40 McQuinn & Shure [2011] FamCA 139 …. 7.49 McRostie v McRostie [1955] NZLR 631 …. 6.66 Mead & Mead (1983) 9 Fam LR 193; FLC ¶91-354 …. 14.35, 14.36 Mead & Mead (2006) FLC ¶93-267 …. 3.20 Mead & Mead (2007) 36 Fam LR 806; FLC ¶93-327 …. 3.20 Mears v Mears (2012) FLC ¶93-503 …. 5.56 Meddow & Estate of the Late Ms Meddow [2015] FamCA 1182 …. 15.8 Mee & Ferguson (1986) 10 Fam LR 971; FLC ¶91-716 …. 11.3, 11.9, 11.11 Mehta v Mehta [1945] 2 All ER 690 …. 6.44 Mellick & Mellick [2014] FamCAFC 236 …. 8.26, 9.7 Menz & Menz (1980) FLC ¶90-852 …. 15.29, 15.31

Mercer, Marriage of (1976) 1 Fam LR 11,179; FLC ¶90-033 …. 11.21, 11.23, 11.29 Merryman, Marriage of (1994) FLC ¶92-497 …. 3.15, 9.34 MHC & QPO [2005] FamCA 138 …. 10.39 Michael Surrogacy Arrangements, Re (2009) 41 Fam LR 694; [2009] FamCA 691 …. 7.8, 7.46 Miller, Marriage of (1979) 4 Fam LR 34; FLC ¶90-669 …. 10.27 Miller, Marriage of (1983) 9 Fam LR 10; FLC ¶91-328 …. 6.16, 6.94, 6.96, 12.30 Miller v Miller; McFarlane v McFarlane [2006] 2 AC 618; [2006] 3 All ER 1 …. 10.3, 10.18, 10.36, 10.43, 13.2, 14.13 Miller & Harrington (2008) 39 Fam LR 654; FLC ¶93-383 …. 8.107 Mills v Harris [1963] WAR 145 …. 5.18 — v Watson (2008) 39 Fam LR 52 …. 9.21, 9.38, 9.39, 9.121 Mims & Green & Green [2008] FamCAFC 13 …. 9.25 Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 197 ALR 241 …. 8.4 — v B (2004) 219 CLR 365; 31 Fam LR 339; FLC ¶93-174 …. 4.65, 4.66, 4.67, 4.68, 8.4, 8.88, 8.124, 8.125 Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 128 ALR 353 …. 8.4 Mitchell & Mitchell (1995) 19 Fam LR 44; FLC ¶92-601 …. 10.4, 10.22, 10.23, 10.24, 10.26, 10.27, 10.40, 10.45, 11.27 MJH Pty Ltd & Hannes (1990) 14 Fam LR 231 …. 12.40 MM & KF; FM, Re [2012] NSWSC 445 …. 7.44 MNR v MEA [2004] FMCAfam 619 …. 11.85 Moby v Schulter (2010) FLC ¶93-447; [2010] FamCA 748 …. 5.100, 5.101, 5.105, 5.109, 5.110, 5.114, 6.115, 6.119, 6.122, 6.123 Moge v Moge [1992] 3 SCR 813; (1992) 43 RFL (3d) 345 …. 10.24, 12.5 — v Moge; Women’s Legal Education and Action Fund (Intervener) (1993) 99 DLR (4th) 456 …. 10.43, 10.44 Molen, Marriage of (1992) 16 Fam LR 203; FLC ¶92-344 …. 14.13 Molier & Van Wyk (1980) 7 Fam LR 18; FLC ¶90–911 …. 15.72 Money & Money (1994) 17 Fam LR 814; FLC ¶92-485 …. 14.45 Montano v Kinross (2014) FLC ¶93-623; [2014] FamCAFC 231 …. 13.6 Monticelli v McTiernan (1995) 19 Fam LR 108; FLC ¶92-617 …. 8.64 Monticone, Marriage of (1990) 13 Fam LR 592; FLC ¶92-114 …. 15.73 Moore v Moore (1973) 21 FLR 390 …. 6.100 — v Smith (1984) DFC ¶96-148 …. 6.120 Moore & Hendler (1992) 15 Fam LR 770 …. 13.11 Moorgate Tobacco Co Ltd v Philip Morris Ltd (1980) 145 CLR 457 …. 4.84 Moose & Moose (2008) FLC ¶93-375 …. 8.107, 9.109 Moreno & Moreno [2009] FMCAfam 1109 …. 15.50

Morgan v Miles (2007) 38 Fam LR 275; FLC ¶93-343 …. 8.41, 8.101, 9.121 Morgan & Flanagan [2014] FamCA 348 …. 13.4 Morley v Henshall [2014] FCCA 1993 …. 5.93 Morris v Morris [1972–73] ALR 893 …. 6.78, 6.79 Morrison, Marriage of (1990) 13 Fam LR 822; FLC ¶92-136 …. 11.79 Morrison, Marriage of (1994) 18 Fam LR 519; (1995) FLC ¶92-573 …. 15.70 Morrison, Marriage of (1995) 19 Fam LR 662; (1995) FLC ¶92-639 …. 9.73 Mortimer & Mortimer [2012] FamCA 974 …. 13.4 Mortland v Wheaton (No 2) [2011] FamCA 950 …. 2.28 Moss & Moss [1897] P 263 …. 6.25, 6.35, 6.41 MRR v GR (2010) 240 CLR 461; 42 Fam LR 531 …. 8.63, 9.23, 9.122, 9.123 Mullane & Mullane (1983) 158 CLR 436; 8 Fam LR 777; FLC ¶91-303 …. 15.14 Mullen & De Bry (2006) 36 Fam LR 454; FLC ¶93-293 …. 15.15 Mulvany v Lane (2009) 41 Fam LR 418; FLC ¶93-404; [2009] FamCAFC 76 …. 9.26, 9.27, 9.61 Mulvena v Mulvena (1999) 24 Fam LR 452; FLC ¶98-006 …. 11.78 Murphy v Murphy (1961) 2 FLR 363 …. 6.78 Murray & Tam; Director, Family Services ACT (Intervener) (1993) 16 Fam LR 982; FLC ¶92-416 …. 8.157 MW v Director-General, Dept of Community Services (2008) 244 ALR 205; 82 ALJR 629; 39 Fam LR 1 …. 5.97, 8.153 MW, DD, TA & AB v Royal Women’s Hospital (1997) DFC ¶95-183 …. 7.33

N N, Marriage of (1977) FLC ¶90-208 …. 9.63 N, Marriage of (1981) 7 Fam LR 889; FLC ¶91-111 …. 9.74 N & R (1991) 15 Fam LR 39; FLC ¶92-252 …. 8.105 N & S, Marriage of (1995) 19 Fam LR 837; (1996) FLC ¶92-655 …. 9.89, 9.96, 9.101, 9.105, 9.106, 9.110 Nachimson v Nachimson [1930] P 217 …. 5.6, 5.15 Nada & Nettle [2014] FamCAFC 123 …. 9.21, 9.23 Najjarin & Houlayce, Marriage of (1991) 104 FLR 403; 14 Fam LR 889; FLC ¶92-246 …. 6.36, 6.37, 6.38, 6.44 Nantz & Brettos [2011] FMCAfam 427 …. 12.36 Napier & Hepburn (2006) 36 Fam LR 395; FLC ¶93-303 …. 9.105, 9.106, 9.108 Napthali & Napthali (1988) 13 Fam LR 146; (1989) FLC ¶92-021 …. 10.19, 13.19, 14.12 National Provincial Bank v Ainsworth [1965] AC 1175 …. 12.14 Nawaqaliva & Marshall (2006) FLC ¶93-296 …. 3.3, 9.3 ND v BM (2003) 31 Fam LR 22 …. 7.26, 11.65

Neale & Neale (1991) 14 Fam LR 861; FLC ¶92-242 …. 10.3 Nemeth & Nemeth (1987) FLC ¶91-844 …. 14.45 Neocleous & Neocleous (1993) 16 Fam LR 557; FLC ¶91-377 …. 10.18 Nghiem v Truong [2012] FamCA 210 …. 5.97, 5.99 Ngo v Ngo [2010] FamCA 1053 …. 5.83 Nikolakis v Nikolakis [2010] FamCAFC 52 …. 9.106 Nixon, Marriage of (1992) FLC ¶92-308 …. 10.26 Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17 …. 4.125, 14.2, 14.3, 14.4, 14.16, 8.106, 8.108, 9.24 Norman v Norman [2010] FamCAFC 66 …. 4.125, 13.15 North & North (1987) 11 Fam LR 735; FLC ¶92-831 …. 12.36 Northern Territory of Australia v GPAO (1999) 161 ALR 318; 24 Fam LR 253; FLC ¶92838 …. 3.52, 8.66 Norton v Locke (2013) 50 Fam LR 517; FLC ¶93-567; [2013] FamCAFC 202 …. 5.93, 12.44, 15.13 Nygh v Kasey [2010] FamCA 146 …. 6.108

O O (Special Medical Procedure), Re [2010] FamCA 1153 …. 8.124 O’Brien & O’Brien (1982) 8 Fam LR 691; (1983) FLC ¶91-316 …. 10.36, 10.37, 13.21 O’Connor & Kasemsarn [2010] FamCA 987 …. 7.46 O’Dea & O’Dea (1980) 6 Fam LR 675; FLC ¶90-896 …. 3.15 O’Dempsey & van Raay (1990) FLC ¶92-178 …. 11.21, 11.28 O’Hara & McGuiness (1991) 14 Fam LR 723; FLC ¶92-220 …. 11.68 O’Neill & O’Neill (1998) FLC ¶92-811; [1998] FamCA 67 …. 15.61 Oakley v Cooper [2009] FamCAFC 133 …. 9.50 Oates & Crest (2008) FLC ¶93-365 …. 3.14 Obergefell v Hodges, Director, Ohio Department of Health 772 F 3d 388 (2015) …. 1.60 Obrenovic & McCauley, Marriage of (1985) FLC ¶91-655 …. 9.58 Official Trustee in Bankruptcy v Edwards (1997) 139 FLR 104; 21 Fam LR 829; FLC ¶92763 …. 6.44 Official Trustee in Bankruptcy & Donovan (1996) FLC ¶92–703 …. 15.68 Ogden & Ogden (2010) 245 FLR 1; [2010] FMCAfam 865 …. 13.25, 15.17 OHB & MTM (2007) FLC ¶93-338 …. 8.16 Oliver & Oliver (1977) 4 Fam LR 252 …. 11.29 Olliver, Marriage of (1978) 4 Fam LR 360; FLC ¶90-499 …. 14.45 Oltman v Harper (No 2) [2009] FamCA 1360 …. 5.77, 5.82, 6.24 Omacini, Marriage of (2005) 33 Fam LR 134; FLC ¶93-218 …. 13.14, 13.27, 13.28, 13.30

Ongal & Materns [2015] FamCAFC 68 …. 8.132 Ongal & Materns (No 3) [2013] FamCA 946 …. 8.133 Opperman, Marriage of (1978) 4 Fam LR 135; FLC ¶90-432 …. 6.99, 6.100 Orpheus & Orpheus [2014] FamCAFC 70 …. 9.21, 9.23 OS v PS (2007) 38 Fam LR 467 …. 9.5, 9.7 Osman & Mourrali (1989) 96 FLR 362; 13 Fam LR 444; (1990) FLC ¶92-111 …. 6.36, 6.37, 6.38 Otway, Marriage of (1986) 11 Fam LR 99; FLC ¶91-807 …. 6.35, 6.37

P P v B (Paternity: Damages for Deceit) [2001] 1 Fam Law R 1041 …. 11.67 — v Director General, Department of Community Services [2002] FamCA 321 …. 8.156 — v P (1994) 181 CLR 583 …. 4.46, 4.59, 4.60, 4.64 — v — [2006] FMCAfam 518 …. 9.27, 9.122 P & P (1994) 17 Fam LR 457; FLC ¶92-462 …. 8.121 P & P [2002] FMCAfam 341 …. 13.5 P & P & Legal Aid Commission of NSW; Human Rights and Equal Opportunity Commission (Intervener) (1995) 19 Fam LR 1; FLC ¶92-615 …. 8.79, 8.82, 8.122, 8.123 P & P, Re an Application by [1973] VR 533; (1973) 21 FLR 450 …. 5.37 Page & Page (1980) 6 Fam LR 669; (1981) FLC ¶91-025 …. 3.15 Page & Page (No 2) (1982) FLC ¶91-241 …. 15.61 Pagliarella, Marriage of (1993) 16 Fam LR 688; FLC ¶92-400 …. 8.86 Paisio (No 2), (1979) 5 Fam LR 281; FLC ¶90-659 …. 9.73 Palmer & Palmer (1985) 10 Fam LR 406; FLC ¶91-606 …. 13.21 Palmer & Palmer (2010) 244 FLR 121; [2010] FMCAfam 999 …. 14.42 Palmerston Hospitals Pty Ltd v Holmdore Nominees Pty Ltd (1992) FLC ¶92-275 …. 15.33 Pandetikis v Manna [2010] FAMCA 841 …. 2.28 Pannell, Marriage of (1996) FLC ¶92-660 …. 9.14 Park, Estate of; Park v Park [1954] P 112 …. 6.46, 6.47, 6.50 Park & Park (1978) 4 Fam LR 488; FLC ¶90-509 …. 10.37 Parker v Parker (1993) 16 Fam LR 863; DFC ¶95-139 …. 10.49 Parker & Parker (1983) 9 Fam LR 323; FLC ¶91-364 …. 15.72 Parker & Parker (2010) 43 Fam LR 548; [2010] FamCA 664 …. 15.49 Parker & Parker (2012) FLC ¶93-499; [2012] FamCAFC 33 …. 15.53, 15.55, 15.59 Parojcic v Parojcic [1959] 1 All ER 1 …. 6.28, 6.29 Parsons & Kidson [2014] FamCA 951 …. 11.76 Pascarl & Oxley [2013] FamCAFC 47 …. 8.160

Patching, Marriage of (1995) 18 Fam LR 675; FLC ¶92-585 …. 15.70 Patfull & Sheldon [2010] FMCAfam 1377 …. 13.8 Patrick, Re (2002) 28 Fam LR 579; FLC ¶93-096 …. 7.20, 9.61, 11.65 Patsalou, Marriage of (1995) 18 Fam LR 426; FLC ¶92-580 …. 9.34 Patterson & Patterson (1979) FLC ¶90-705 …. 10.27 Paul & Paul [2012] FamCAFC 64 …. 11.18, 11.21 Pavey, Marriage of (1976) 10 ALR 259; 25 FLR 450; 1 Fam LR 11,358; FLC ¶90-051 …. 6.65, 6.68, 6.71, 6.79, 6.80, 6.82, 6.119, 9.13 Pavli & Beffa [2013] FamCA 144 …. 8.26, 8.62, 9.5, 9.8 Pavone & Pavone [2015] FamCA 100 …. 13.9, 15.21 Pearce v South Australian Health Commission (1996) 66 SASR 486 …. 7.33 Pearson v Pearson [1961] VR 693 …. 12.15, 13.11 Peck v Peck [1965] SASR 293 …. 12.15 Pelerman & Pelerman (2000) FLC ¶93–037 …. 15.71 Pellegrino & Pellegrino (1997) 22 Fam LR 474; FLC ¶92-789 …. 14.51 Penza & Penza (1988) FLC ¶91-949 …. 14.59 Peter v Elspeth [2009] FamCA 551 …. 9.75 Peters & Peters [2012] FamCAFC 105 …. 11.64 Petersen v Petersen (1927) 44 WN (NSW) 96 …. 6.37 Petersons & Petersons (1981) 7 Fam LR 402; FLC ¶91-095 …. 13.31 Petruski v Balewa (2013) 49 Fam LR 116; [2013] FamCAFC 15 …. 14.8 Petterd & Petterd (1976) 1 Fam LR 11,496; FLC ¶90-065 …. 10.26, 10.27 Pettitt v Pettitt [1970] AC 777 …. 12.14 Pflugradt & Pflugradt (1981) 7 Fam LR 188; FLC ¶91-052 …. 15.29, 15.31 Pheasant v Pheasant [1972] Fam 202 …. 1.34 Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457; 33 ALR 465 …. 4.6, 4.23, 4.83, 4.84, 4.86, 4.87 Phillips, Marriage of (2002) 29 Fam LR 128; FLC ¶93-104 …. 13.14, 13.30 Pickering v Pickering (1978) 35 FLR 1; 4 Fam LR 349; FLC ¶90-507 …. 6.53, 6.106 Pidoto v Victoria (1948) 68 CLR 87 …. 4.38 Pierce, Marriage of (1998) 24 Fam LR 377; (1999) FLC ¶92-844 …. 14.45, 14.46 Piper & Mueller [2015] FamCAFC 241 …. 15.45, 15.58 Playford v Collier (1984) 9 Fam LR 634; FLC ¶91-529 …. 6.101 Pleym & Pleym (1986) 11 Fam LR 451; FLC ¶91-762 …. 13.21 Plows & Plows (No 2) (1979) 5 Fam LR 590; FLC ¶90-712 …. 9.74 Poisat & Poisat [2014] FamCAFC 128 …. 8.106 Polonius v York [2010] FamCAFC 228 …. 14.10, 14.34, 14.42 Ponting v Ponting [2011] FamCAFC 88 …. 9.91

Pope & Pope [2012] FamCA 204 …. 13.21 Potter v Potter (1954) 90 CLR 391 …. 6.77 Potter & Potter (2007) 37 Fam LR 208; FLC ¶93-326 …. 9.101, 9.108 Potthoff & Potthoff (1978) 4 Fam LR 267; FLC ¶90-475 …. 14.18 Potts v Bimms [2007] FamCA 394 …. 9.26, 9.61 Powell v Anderson (1977) FLC ¶90-235 …. 9.58 — v Supresencia (2003) 30 Fam LR 463; DFC ¶95-275 …. 14.9, 14.10 Power & Power (1988) 12 Fam LR 97; FLC ¶91-911 …. 9.47 Pratt & Pratt (2012) 47 Fam LR 234; [2012] FamCAFC 81 …. 10.37, 13.13 Prestwitch & Prestwitch (1984) 9 Fam LR 1069; FLC ¶91-569 …. 15.4 Prewonik v Scott [2005] NSWSC 74 …. 10.54 Price v Underwood (2008) 39 Fam LR 614; [2008] FamCAFC 46 …. 6.96 — v Underwood (Divorce Appeal) (2009) 231 FLR 308; 41 Fam LR 614; [2009] Fam CAFC 127 …. 6.9, 6.71, 6.91, 6.96 Prior, Marriage of (2002) 30 Fam LR 72; FLC ¶93-105 …. 15.70, 15.76 Pritchard, Marriage of (1982) FLC ¶91-286 …. 10.19 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 …. 5.97 Prowse, Marriage of (1994) 18 Fam LR 348; (1995) FLC ¶92–557 …. 15.68, 15.70, 15.76 Public Trustee v Gilbert (1991) 14 Fam LR 573; FLC ¶92-211 …. 15.70 Public Trustee (SA) & Keays; Trustee of Broken Hill Mine Employees’ Pension Fund (1985) 10 Fam LR 610; FLC ¶91-651 …. 13.21, 13.22 Pugh v Pugh [1951] P 482 …. 5.69, 6.54 Pulford v Pulford [1923] P 18 …. 6.62, 6.63, 6.66, 6.73 Punter v Secretary for Justice [2007] 1 NZLR 40 …. 8.154 Puttick v Attorney-General [1980] Fam 1 …. 6.37

Q Q, Re …. (1994) 18 Fam LR 442; (1995) FLC ¶92-565 …. 14.44 Quigley & Quigley (1976) 1 Fam LR 11,526; FLC ¶90-074 …. 6.63, 6.66

R R (A Minor), Re [1991] 4 All ER 177 …. 8.32 R & B & Separate Representative (1996) 19 Fam LR 714; FLC ¶92-658 …. 9.14 R & R (1984) 9 Fam LR 1078; (1985) FLC ¶91-615 …. 9.78 R v Barnet London Borough Council; Ex parte Nilish Shah [1983] 2 AC 309 …. 9.21 — v Brislan; Ex parte Williams (1935) 54 CLR 262 …. 4.3 — v Cook; Ex parte Twigg (1980) 6 Fam LR 161; 147 CLR 15 …. 4.129 — v Dovey; Ex Parte Ross (1979) 141 CLR 526; 5 Fam LR 1; FLC ¶90-616 …. 15.17

— v O’Brien [1974] 3 All ER 663 …. 6.91 — v R (1988) 23 Fam LR 456; FLC ¶92-820 …. 9.31 — v R: Children’s Wishes (2000) 25 Fam LR 712; FLC ¶93-000 …. 9.43 — v R (No 1) [2002] FMCAfam 153 …. 11.88 — v Ross-Jones; Ex parte Beaumont (1979) 141 CLR 504 …. 4.83, 4.129, 12.37 — v Terry [1955] VLR 114 …. 3.28 — v Watson; Ex parte Armstrong (1976) 136 CLR 77 …. 4.129 Rabab v Rashad [2009] FamCA 69 …. 6.44 Raby, Marriage of (1976) 2 Fam LR 11,348; FLC ¶90-104 …. 8.59, 9.47 Raine v Creed [2015] FamCAFC 133 …. 10.36, 14.67 Ralph & Ralph (1977) 3 Fam LN No 34; FLC ¶90-292 …. 9.129 Ramero v Chavez [2011] FamCA 387 …. 9.75 Ramsey, Marriage of (No 2) (1983) 8 Fam LR 1005; FLC ¶91-323 …. 10.37, 10.39 Ramsey & Ramsey (1983) FLC ¶91-301 …. 10.39 Rand & Rand (2008) FLC ¶93-370; [2008] FamCAFC 50 …. 15.22 Rastall v Ball (2010) 44 Fam LR 256 …. 2.57, 2.62, 2.64 Ray v Males [2009] FamCA 219 …. 4.68 Read, Marriage of (1977) 2 Fam LR 11,596; FLC ¶90-201 …. 6.112 Redman v Redman (2013) FLC ¶93-563 …. 15.39 Redman & Redman (1987) FLC ¶91-805; 11 Fam LR 411 …. 10.30 Reed & Reed; Grellman (Intervenor) (1989) 13 Fam LR 566; (1990) FLC ¶92-105 …. 13.21, 15.61 Regan v Walsh (2014) FCCA 2535; FLC ¶93-614 …. 5.108, 12.44 Reid v Lynch (2010) 44 Fam LR 141; FLC ¶93-448 …. 8.108 Reihana & Reihana (1980) 6 Fam LR 134 …. 9.66 Relationships Australia (Qld) v M (2006) 37 Fam LR 12 …. 2.57 Rewal, Marriage of (1991) 103 FLR 384; FLC ¶92-225 …. 6.24 Reynolds & Kilpatrick (1992) 16 Fam LR 601; (1993) FLC ¶92-351 …. 8.66 Reynolds & Reynolds (1984) 10 Fam LR 388; (1985) FLC ¶91-362 …. 13.31 Reynolds & Sherman [2015] FamCAFC 128 …. 9.128 Ricci v Jones [2011] FamCAFC 222 …. 5.98, 5.105, 5.107, 5.108, 5.109, 5.111, 12.44 Rice v Miller (1993) 16 Fam LR 970; FLC ¶92-415 …. 9.59 Rice & Asplund (1979) 6 Fam LR 570; FLC ¶90-725 …. 8.105, 8.106, 8.107, 8.108, 8.130, 9.24, 14.4 Rice & Rice (2015) 52 Fam LR 618; [2015] FamCA 85 …. 15.28 Rich & King [2010] FCWA 130 …. 6.38 Richardson, Marriage of (1979) FLC ¶90-603 …. 10.23 Richardson, Marriage of (1999) 26 Fam LR 523 …. 13.5 Richardson & Richardson [2008] FamCAFC 107 …. 13.4

Rick v King [2011] FamCAFC 220 …. 6.38 Rickaby & Rickaby (1995) 19 Fam LR 814; FLC ¶92-642 …. 13.21 Rickie & Rickie (1979) 4 Fam LR 737; FLC ¶90-626 …. 15.31 Rimmer v Rimmer [1953] 1 QB 63 …. 12.13 Risk v Risk [1951] P 50 …. 5.6 Rivas & Stephen [2014] FCCA 2144 …. 9.107 Roberts & Roberts (1977) 3 Fam LN N59 …. 10.31 Robertson & Robertson [2012] FamCAFC 60 …. 14.7 Robinson v Robinson [1961] WAR 56 …. 12.15 Robinson & Huff (1990) FLC ¶92-168 …. 15.70 Robinson & Shannon [2015] FamCA 1124 …. 3.3 Robinson & Willis (1982) 8 Fam LR 131 …. 4.127 Roda & Roda [2014] FamCA 943 …. 9.43 Roda & Roda (No 2) [2015] FamCA 727 …. 9.43 Rogers & Rogers (1980) FLC ¶90-874 …. 14.37 Rohde, Marriage of (1984) 10 Fam LR 56; FLC ¶91-592 …. 15.72 Rolfe, Marriage of (1977) 5 Fam LR 146; (1979) FLC ¶90-629 …. 14.18, 14.19 Ronalds & Victor [2011] FamCA 389 …. 7.49 Rosati v Rosati (1998) 23 Fam LR 288; FLC ¶92-804 …. 13.31 Rose & Rose (1976) 2 Fam LR 11,101; FLC ¶90-064 …. 8.95 Rosie (Special Medical Procedure), Re [2011] FamCA 63 …. 8.124 Rossi, Marriage of (1980) 6 Fam LR 148; FLC ¶90-839 …. 9.97 Roth & Roth [2014] FamCA 207 …. 8.62 Rouse & Rouse (1981) 7 Fam LR 780; FLC ¶91-073 …. 10.26 Roux v Herman [2010] 244 FLR 416 …. 2.61, 2.62, 2.64 Rowell v Keogh [2011] FamCAFC 74 …. 9.91 Roy v Sturgeon (1986) 11 Fam LR 271 …. 5.95, 6.117 Ruane v Bachmann-Ruane [2009] FamCA 1101 …. 15.52 Ruane & Bachmann-Ruane (Accrued Jurisdiction) [2012] FamCA 369 …. 4.87, 4.88 Russell v Close [1993] FamCA 62 …. 9.112 — v Russell [1895] P 315 …. 1.32 — v — [1897] AC 395 …. 1.32 — v Russell; Farrelly v Farrelly (1976) 134 CLR 495 …. 1.40, 4.6, 4.20, 4.31, 4.32, 4.33, 4.34, 4.37, 4.40, 4.44, 4.45, 4.46, 4.52, 4.82, 10.18, 12.37 Ruth (aka Hutton) v Hutton (2011) 45 Fam LR 399 …. 9.101 Rutherford & Rutherford (1991) FLC ¶92-255 …. 15.14 Ryan, Marriage of (1988) 12 Fam LR 529; FLC ¶91-970 …. 10.30 Ryan & Jocye [2011] FMCAfam 225 …. 15.49

Rzetelski & Johnson (1988) 12 Fam LR 304; FLC ¶91-945 …. 12.40

S S (a Minor), Re [1998] AC 750 …. 8.154 S, Marriage of (1980) 5 Fam LR 831 …. 5.15 S, Re (1989) 13 Fam LR 660; (1990) FLC ¶92-124 …. 8.118 S v B [2005] 1 Qld 537 …. 10.52 — v — (No 2) (2004) 32 Fam LR 429; [2004] QCA 449 …. 5.99, 6.118, 6.119, 6.120 — v R (1999) 24 Fam LR 213; FLC ¶92-834 …. 9.113 — v S (1997) 22 Fam LR 112; FLC ¶92-762 …. 8.76 S & P (1990) 14 Fam LR 251; FLC ¶92-159 …. 9.113 S & S (1980) 42 FLR 94; 5 Fam LR 831; FLC ¶90-820 …. 6.30, 6.34 S & S [2003] FMCAfam 104 …. 6.70 Saba & Saba (1984) 9 Fam LR 780; FLC ¶91-579 …. 12.40, 13.21 Saberton & Saberton [2013] FamCAFC 89 …. 11.75, 11.76 Sacrinity v Wolodzko [2010] FamCA 1258 …. 9.60 Sadlier v Sadlier [2015] FamCAFC 130 …. 10.19 Sahari, Marriage of (1976) 2 Fam LR 11,126; FLC ¶90-086 …. 8.127 Saintclaire & Saintclaire [2013] FamCA 491 …. 15.50 Saintclaire & Saintclaire [2015] FamCAFC 245 …. 15.50 Saliba & Romyen [2015] FamCA 927 …. 7.54 Sally (Special Medical Procedure), Re [2010] FamCA 237 …. 8.124 Salvati v Donato [2010] FamCAFC 263 …. 9.20 Sampson v Hartnett (No 10) (2007) 38 Fam LR 315; FLC ¶93-350 …. 9.121, 9.122, 9.123 Sand & Sand (2012) 48 Fam LR 458; FLC ¶93-519 …. 13.28 Sanders, Marriage of (1976) 1 Fam LR 11,433; FLC ¶90-078 …. 4.124, 9.12 Sanders v Sanders (1967) 116 CLR 366 …. 4.27 Sandler & Kerrington (2007) FLC ¶93-323 …. 8.107, 8.130, 8.148 Sandrk, Marriage of (1991) 15 Fam LR 197; FLC ¶92-260 …. 15.74 Santos v Santos [1972] Fam 247 …. 6.66 Saunders v Saunders (1976) 1 Fam LR 11,477; FLC ¶90-096 …. 6.63 Savery, Marriage of (1990) 13 Fam LR 812; FLC ¶92-131 …. 11.76, 11.81 Savianne v Marriott [2014] FamCA 882 …. 5.101 Sawant & Karanth [2014] FamCAFC 235 …. 9.116, 9.121 Saward v Saward [1963] Tas SR (NC) N17; [1964] ALR 1004; (1963) 5 FLR 28 …. 6.48 Sayer & Radcliffe [2012] FamCAFC 209 …. 9.3, 9.121 SB v Parramatta Children’s Court [2007] NSWSC 1297 …. 3.44 SCA v Maynard [2003] FamCA 911 …. 8.157

Schenck, Marriage of (1981) 7 Fam LR 170; FLC ¶91-023 …. 9.66 Schmidt, Marriage of (1976) 1 Fam LR 11,355; FLC ¶90-052 …. 5.29, 6.99, 6.105, 6.106 Schmidt & Schmidt (1979) 28 ALR 84; 5 Fam LR 421; FLC ¶90-685 …. 9.69 Schorel v Schorel (1990) 14 Fam LR 105; FLC ¶92-144 …. 6.102 Schwarzkopff, Marriage of (1992) 15 Fam LR 545; FLC ¶92-303 …. 3.20 Scott v Scott (1990) 26 VLR 588 …. 6.31 — v Sebright (1886) 12 PD 21 …. 6.28 Scott & Danton [2014] FamCAFC 203 …. 13.16, 13.38 SCVG & KLD (2014) FLC ¶93-582 …. 9.23 SCVG & KLD [2014] FamCAFC 42 …. 9.21 Sealey v Archer [2008] FamCAFC 142 …. 9.3 Sean & Russell (Special Medical Procedure), Re (2010) 44 Fam LR 210 …. 8.124 Secretary, Attorney-General’s Department & TS [2000] FamCA 1692 …. 8.153 Secretary, Department of Health and Community Services v JWB & SMB (Re Marion) (1992) 175 CLR 218; 15 Fam LR 392; FLC ¶92-293 …. 4.57, 8.31, 8.32, 8.33, 8.118, 8.119, 8.124, 9.41 Secretary DSS v SRA (1993) 118 ALR 467 …. 5.13 Secretary of Department of Health & Human Services v Ray (2010) 45 Fam LR 1; [2010] FamCAFC 258; FLC ¶93-457 …. 3.45, 3.48, 4.68, 8.16, 8.125 Secretary of the Dept of Human Services-State Central Authority v CR (2005) FLC ¶93243 …. 8.155 Sehota, Re [1978] 3 All ER 385 …. 5.6 Seidler v Schallhofer (1982) 2 NSWLR 80; 8 Fam LR 598 …. 1.53 Sellers v Sexton [2011] FamCAFC 227 …. 9.106 Seminara & Ferguson (1993) 16 Fam LR 410 …. 3.8, 3.15 Semperton & Semperton (2012) 47 Fam LR 626; [2012] FamCAFC 132 …. 15.11 Senior & Anderson (2011) 250 FLR 444; 45 Fam LR 540; FLC ¶93-470; [2011] FamCAFC 129 …. 15.44, 15.49, 15.53, 15.54 Separate Representative v JHE & GAW (1993) 16 Fam LR 485; FLC ¶92-376 …. 8.80, 9.115 Seymour & Seymour [2011] FamCAFC 97 …. 11.76 SG, Re (1968) 11 FLR 326 …. 5.40 Sharp & Sharp [2011] FamCAFC 150 …. 13.4 Sharpless v McKibbin [2007] NSWSC 1498; (2008) DFC ¶95-414 …. 10.54 Shaw & Shaw (1989) 12 Fam LR 806; FLC ¶92-010 …. 13.24, 14.59 Shaw & Shaw [2009] FMCAfam 9 …. 14.41 Shelley v Markov [2012] FCWA 68 …. 5.108 Shepherd & Shepherd (1979) FLC ¶90-729 …. 9.69 Sheridan & Sheridan (1994) 18 Fam LR 415; FLC ¶92-517 …. 9.14

Shimizu & Tanner [2011] FamCA 271 …. 13.28 Shindler v Shindler (1956) 31 ALJ R 73 …. 6.77 Sieling & Sieling (1979) 4 Fam LR 713; FLC ¶90-627 …. 15.15 Simmons v Simmons (2008) 232 FLR 73; 40 Fam LR 520; [2008] FamCA 1088 …. 15.24 Simpson & Hamlin (1984) 9 Fam LR 1040; FLC ¶91-576 …. 15.74 Simpson-Morgan & Burreket [2009] FamCA 138 …. 6.44 Sinclair v Webster (2013) FLC ¶93-551 …. 6.119 — Sinclair v Whittaker [2012] FamCA 1050 …. 5.109, 5.110 — v — (2013) FLC ¶93-551 …. 5.101, 5.102, 5.107, 5.109, 6.119 Sindel & Milton [2010] FamCAFC 232 …. 14.58 Singerson & Joans [2014] FamCAFC 238 …. 14.10, 14.53, 14.54 SK v KP [2005] 3 NZLR 590 …. 8.154 Skoflek & Baftirovski (1988) 12 Fam LR 55; FLC ¶92-906 …. 12.33 Skrabl & Leach (1989) 13 Fam LR 83; FLC ¶92-016 …. 9.130 SL & ELH [2005] FamCA 132 …. 14.28 Slater v Light (2011) 45 Fam LR 41 …. 9.26 Slazenger v Hunt (S108/2005) …. 4.47, 15.24, 15.30 Sloan, Marriage of (1994) 18 Fam LR 249; FLC ¶92-507 …. 11.81, 11.89 Smirnov v Turova [2009] FMCAfam 1083 …. 2.62 Smith, Marriage of (1994) 18 Fam LR 133; FLC ¶92-494 …. 11.14, 11.15 Smith; St James; Smith v Wickstein (1996) 21 Fam LR 118; FLC ¶92-714 …. 11.26 Smith v Smith (1984) FLC ¶91-512 …. 15.38 — v — (1986) 161 CLR 217 …. 4.83, 4.85, 4.87 Smith & Fields [2012] FamCA 510 …. 14.28, 14.31 Smith & Smith (1990) 14 FamLR 521; FLC ¶92-200 …. 13.5 Smith & Smith (1991) 15 Fam LR 206; FLC ¶92-261 …. 13.30 Smith & Smith (No 2) (1985) 10 Fam LR 283; FLC ¶92-604 …. 4.87 Smyth v Pappas [2011] FamCA 434 …. 5.104, 5.105, 5.109, 5.111, 6.117, 6.119, 6.122 Smythe, Marriage of (1983) 8 Fam LR 1029; FLC ¶91-337 …. 8.58, 9.65, 9.66 Soblusky, Marriage of (1976) 2 Fam LR 11,528; FLC ¶90-124 …. 10.14, 10.30, 10.33, 14.34 Sommerville & Sommerville (1999) 27 Fam LR 233; (2000) FLC ¶93-042 …. 15.75 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 …. 9.21 Sowa v Sowa [1961] P 70 …. 5.6 Spano & Spano (1979) 5 Fam LR 506; FLC ¶90-707 …. 10.26, 10.36 Spanos, Marriage of (1980) 6 Fam LR 345; FLC ¶90-871 …. 6.67, 6.70, 6.85 Spanos & Hallett [2015] FamCA 458 …. 8.54 Spencer v Speight [2014] FamCA 436 …. 5.101

Spencer & Verity [2012] FamCAFC 210 …. 8.130 Spiteri & Spiteri (2005) 33 Fam LR 109; FLC ¶93-214 …. 14.36, 14.46 Spratley, Marriage of (1977) 3 Fam LR 11,131; FLC ¶90-222 …. 6.93 Spratley & Spratley (No 2) (1978) 4 Fam LR 52; FLC ¶90-414 …. 6.93 Spratt v Hermes (1965) 114 CLR 226 …. 4.71 Spry, Marriage of (1977) 3 Fam LR 11,330; FLC ¶90-271 …. 9.69 Spry & Roet (1977) FLC ¶90-301 …. 11.17 SPS & PLS (2008) 39 Fam LR 295; FLC ¶93-363 …. 8.90, 8.107 SS v AH [2010] FamCAFC 13 …. 1.91 Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261 …. 4.83, 4.84 Stanford v Stanford (2011) 46 Fam LR 240; [2011] FamCAFC 208 …. 6.71, 10.18 — v — (2012) 247 CLR 108; 293 ALR 70; 47 Fam LR 481; FLC ¶93-518 …. 6.71, 12.21, 12.28, 12.31, 12.34, 12.35, 12.36, 12.43, 13.1, 13.10, 13.14, 13.16, 13.17, 13.18, 13.20, 13.29, 13.30, 13.32, 13.34, 13.35, 13.36, 13.37, 13.38, 13.40, 14.17, 14.34, 14.67, 14.68, 15.39, 15.48, 15.51 — v — (2012) 47 Fam LR 105; FLC ¶93-495; [2012] FamCAFC 1 …. 6.71, 10.18, 13.16 Stapleton v Hayes [2011] FamCAFC 70 …. 9.101, 9.112 State Central Authority v Ayob (1997) FLC ¶92-746 …. 8.155 State Central Authority & Camden [2012] FamCFC 45 …. 8.154 State Central Authority & Hajjar (2010) FamCA 648 …. 8.155 State Central Authority & Young [2012] FamCA 563 …. 8.157 Stay & Stay (1997) 21 Fam LR 626; FLC ¶92-751 …. 14.25 Stedman v Stedman (No 2) [2015] FamCA 392 …. 13.4 Stein & Stein (1986) 11 Fam LR 353; FLC ¶91-779 …. 13.24 Stein & Stein (2000) 25 Fam LR 727; FLC ¶93-004 …. 10.30 Steinbrenner & Steinbrenner [2008] FamCAFC 193 …. 14.7 Stephens & Stephens (2007) FLC ¶93-336 …. 15.31 Stephens & Stephens (Enforcement) (2009) 42 Fam LR 423; FLC ¶93-425 …. 15.17 Sterling v Sterling & Protective Commissioner [2000] FamCA 1150 …. 6.71 Stevens & Lee (1990) 102 FLR 108; (1991) FLC ¶92-201 …. 9.92 Stirling v Dobson (2011) FLC ¶98-056 …. 11.11, 11.29, 11.76, 11.84 Storie v Storie (1945) 80 CLR 597 …. 9.10 Stowe & Stowe (1980) 6 Fam LR 757; (1981) FLC ¶91-027 …. 15.15 Strahan & Strahan (2009) 42 Fam LR 203; (2011) FLC ¶93-466 …. 15.68 Styles & Palmer [2014] FamCA 383 …. 11.13, 11.29 Suiker, Marriage of (1993) 17 Fam LR 236; FLC ¶92-436 …. 15.71 Sullivan v Sullivan (1818) 2 Hag Con 238; 161 ER 728 …. 6.31, 6.41, 6.49 Summerby v Cadogen [2011] FamCAFC 205 …. 9.91 Suria, Marriage of (1977) 29 FLR 308; 3 Fam LR 11,541; FLC ¶90-305 …. 6.34

Surridge & Surridge (2015) FamCA 493 …. 15.11 Sutton & Sutton (No 2) (1976) 2 Fam LR 11,256 …. 4.124 Swift v Kelly (1835) 3 Knapp 257; 12 ER 648 …. 6.31 Swinton v Barnstable [2011] FamCA 548 …. 13.28 Szechter v Szechter [1971] P 286 …. 6.29, 6.30

T T v N (2003) 31 Fam LR 257; FLC ¶93-172 …. 8.81, 9.36 — v O [2006] FMCAfam 709 …. 9.122 — v S (2001) 28 Fam LR 342; FLC ¶93-086 …. 9.36 — v P (2000) FLC ¶93-049 …. 8.81 T & L (2000) 27 Fam LR 40; FLC ¶93-056 …. 8.86 Taisha v Peng (2012) 48 Fam LR 150 …. 5.99, 5.108 Talbot v Norman (2012) FLC ¶93-504 …. 8.116 Talbot & Talbot [2015] FamCAFC 132 …. 13.29 Tamaniego v Tamaniego [2010] FamCAFC 254 …. 13.2 Tansell, Marriage of (1977) 3 Fam LR 11,466; FLC ¶90-307 …. 6.112 Tansell v Tansell (1977) 3 Fam LR 11,441; FLC ¶90-280 …. 6.112 Tapiolas v Tapiolas (1985) 10 Fam LR 1 …. 12.40 Tapper & McFarlane [2013] FCCA 732 …. 8.141 Tarritt v Director-General, Department of Community Services [2008] FamCAFC 34 …. 8.158 Tasman v Tisdall (SSAT Appeal) [2010] FMCAfam 425 …. 11.74 Tate v Tate (2000) 26 Fam LR 731; FLC ¶93-047 …. 13.33 — v — (2002) 29 Fam LR 195; FLC ¶93-107 …. 3.20 Tate & Tate (No 3) (2003) 30 Fam LR 427; FLC ¶93-138 …. 8.141 Taylor v Barker (2007) 37 Fam LR 461; FLC ¶93-345; [2007] Fam CA 1236 …. 8.63, 9.3, 9.116, 9.121 — v Taylor (1979) 143 CLR 1; 5 Fam LR 289 …. 14.67, 15.68 Teenager, Re a (1988) 13 Fam LR 85; FLC ¶92-006 …. 8.118 Teh v Muir [2014] FamCA 483 …. 5.93 Teh & Muir [2015] FamCAFC 224 …. 15.15 Telfer v Telfer (1996) 20 Fam LR 619; FLC ¶92-688 …. 8.76 Tems & Tems (1990) 100 FLR 472; FLC ¶92-169 …. 13.5 Terry v Keeler [2008] FMCAfam 300 …. 9.7 Teves & Campomayor (1994) 18 Fam LR 844; (1995) FLC ¶92-578 …. 6.30 Thomason & Malhotra [2010] FamCAFC 85 …. 8.144 Thompson & Thompson (1977) 2 Fam LR 11,649; FLC ¶90-206 …. 6.85

Thorley v Greer [2015] FamCA 213 …. 13.35, 13.40 Thorne & Kennedy [2015] FCCA 484 …. 15.49 Tilly, Re v Minister for Family and Community Services [2015] NSWSC 1208 …. 8.125 Tindall & Saldo [2014] FamCAFC 1 …. 8.132 Ting v Fingal [2013] FamCA 29 …. 5.108 TNL & CYT (2005) 33 Fam LR 167; [2005] FamCA 77 …. 7.8, 7.10 Tobin v Tobin (1999) 24 Fam LR 635; FLC ¶92-848 …. 7.20, 11.7, 11.65 Todd (No 2), Marriage of (1976) 9 ALR 401; 25 FLR 260; 1 Fam LR 11,186; FLC ¶90-008 …. 6.65, 6.68, 6.79 Tomasetti v Tomasetti (2000) 26 Fam LR 114; FLC ¶93-023 …. 14.7 Toohey & Toohey (1991) 14 Fam LR 843; FLC ¶92-244 …. 15.31 Torie & Torie (1981) 7 Fam LR 370; FLC ¶91-046 …. 9.66 Townsend, Marriage of (1994) 18 Fam LR 505; (1995) FLC ¶92-569 …. 13.26, 13.28, 14.13 Townsend v Director-General, Department of Families, Youth and Community Care (1999) 24 Fam LR 495; FLC ¶92-842 …. 8.155 Tozer & Tozer (1989) 13 Fam LR 531 …. 14.11 Trapp v Vonne (2009) 41 Fam LR 471 …. 2.60 Trask & Westlake [2015] FamCAFC 160 …. 12.5, 14.15, 14.32, 14.50 Travers v Holley [1953] P 246; 2 All ER 794; 3 WLR 507 …. 12.38 Truman v Clifton [2010] FCWA 91 …. 5.97, 5.104, 5.108, 6.115, 6.119, 6.122, 6.123 Truman & Truman (2008) 38 Fam LR 614; FLC ¶93-360 …. 8.69, 8.70, 8.71, 8.100 Truman & Truman [2013] FamCA 765 …. 13.29 Truscott & Truscott (1986) FLC ¶91-751 …. 11.17 Trustee of the Property of Lemnos v Lemnos (2009) 41 Fam LR 120; FLC ¶93-394; [2009] FamCAFC 20 …. 15.65 TRV v Department of Health and Human Services (Human Rights) [2015] VCAT 1188 …. 7.36 Tryon v Clutterbuck (2007) 211 FLR 1; FLC ¶93-332 …. 7.12, 8.45 — v — [2011] HCATrans 133 …. 2.44, 8.92 — v — (No 2) (2009) 42 Fam LR 118; FLC ¶93-412 …. 7.12, 7.13 — v Clutterbuck and Attorney-General (Cth) (Intervenor) (2010) 246 FLR 193; 44 Fam LR 361; FLC ¶93-453 …. 2.44, 8.92 Tuck, Marriage of (1979) 7 Fam LR 492; (1981) FLC ¶91-021 …. 11.21, 11.28 Tulk v Tulk [1907] VLR 64 …. 6.60, 6.78, 6.79 Turnbull & Turnbull (1990) 15 Fam LR 81; (1991) FLC ¶92-258 …. 15.33 Turner v Meyers (1808) 1 Hag Con 414; 161 ER 600 …. 6.45 Tye (No 1), Marriage of (1976) 1 Fam LR 11,235; FLC ¶90-028 …. 6.66, 6.69, 6.70 Tye & Tye (No 2) (1976) FLC ¶90-048; 2 Fam LR 11,205 …. 10.26

Tyler & Sullivan [2014] FamCA 178 …. 9.107 Tynan, Marriage of (1992) 16 Fam LR 621; (1993) FLC ¶92-385 …. 11.9, 11.24, 11.26, 11.28 Tyson v Tyson (1996) 187 CLR 707; 70 ALJR 285 …. 10.36 Tyson & Tyson (1993) 16 Fam LR 425; FLC ¶92-368 …. 10.20

U U v U (2002) 211 CLR 238; 29 Fam LR 74; FLC ¶93-112; [2002] HCA 36 …. 9.3, 9.5, 9.120, 9.121, 9.122, 9.123 Udall & Oaks [2010] FMCAfam 1482 …. 1.91 Unitingcare — Unifam Counselling and Mediation v Harkiss (2011) 252 FLR 309; FLC ¶93-476 …. 2.60, 2.61

V V, Re (1964) 6 FLR 266 …. 5.48 V v V (1985) 156 CLR 228 …. 4.55 V & G (1982) 8 Fam LR 193 …. 11.14 Vadisanis & Vadisanis (2014) FLC ¶93-593; [2014] FamCAFC 97 …. 15.16 Vakil v Vakil (1997) FLC ¶92-743 …. 10.37 Vakros & Letsos (2012) 47 Fam LR 172; [2012] FamCAFC 40 …. 7.8 Valentine & Lacerra [2013] FamCAFC 53 …. 8.22, 9.61 Valera Pty Ltd v Walker (No 2) [2010] NSWSC 1492 …. 10.49 Valier v Valier (orse Davis) (1925) 133 LT 830 …. 6.44 Vallance & Marco [2012] FamCA 653 …. 8.116 Van Ballekom & Kelly (2005) 34 Fam LR 1; FLC ¶93-233 …. 15.8 Van Rensburg & Paquay (1993) 16 Fam LR 680; FLC ¶92-391 …. 8.160 Van Wijk & Jetson (2005) FLC ¶93-240 …. 9.43 Vance & Carlyle [2014] FamCA 651 …. 8.112 Vartikian & Vartikian (No 2) (1984) 10 Fam LR 165 …. 10.36 Vass & Vass [2015] FamCAFC 51 …. 13.29 Vasser & Taylor-Black (2007) 37 Fam LR 256; FLC ¶93-329 …. 8.102, 9.101 Vaughan v Bele [2011] FamCA 436 …. 5.93, 5.107, 5.111, 5.113, 6.117, 6.120, 6.121 Vaughan & Vaughan (1981) 7 Fam LR 379; FLC ¶91-066 …. 10.36, 11.14 Vault v Isle (2012) 47 Fam LR 252; [2012] FamCAFC 93 …. 10.37 Vautin v Vautin (1998) 23 Fam LR 627; FLC ¶92-827 …. 10.4, 10.36 Vaziri & Maddison [2014] FamCa 897 …. 8.117 VC & CG (2010) FLC ¶93-434; [2010] FamCAFC 62 …. 15.31 Vega & Riggs (No 2) [2015] FamCA 911 …. 13.5

Vick & Hartcher (1991) 15 Fam LR 149; FLC ¶92-262 …. 10.22, 11.9, 11.78 Victorian Stevedoring & General Contracting Co Pty Ltd & Meakes v Dignan (1931) 46 CLR 73 …. 4.127 Vine v Carey [2009] FMCAfam 1017 …. 5.97, 5.107, 5.108, 6.117, 6.120, 6.121, 10.52 Vitzdamm-Jones v Vitzdamm-Jones; St Clair v Nicholson (1981) 148 CLR 383 …. 4.4, 4.55 VJ & CJ (1997) 22 Fam LR 166; FLC ¶92-772 …. 9.113 Vlug v Poulos (1997) 22 Fam LR 324; FLC ¶92-778 …. 8.26 Volen & Backstrom [2013] Fam CA 40 …. 6.117, 6.119, 6.121 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 …. 8.160, 12.39 VR v RR (2002) 29 Fam LR 39; FLC ¶93-099 …. 8.37

W W, Re [1968] QWN 45 …. 5.39 W (A minor) (medical treatment), Re [1992] 4 All ER 627 …. 8.32, 8.34 W (Adoption), Re (1998) 23 Fam LR 538 …. 7.39 W (Sex abuse: standard of proof), Re (2004) 32 Fam LR 249; FLC ¶93-192 …. 9.110, 9.111 W v D & Royal Women’s Hospital (2000) EOC ¶93-045 …. 7.33 — v G (1996) 20 Fam LR 49 …. 7.57 — v J & S [1998] FamCA 44 …. 7.11 — v T (1998) 146 FLR 323; 23 Fam LR 175; FLC ¶92-808 …. 5.56, 6.24 — v W [2002] FamCA 1143 …. 11.19 W & G (No 1) (2004) 35 FamLR 417; (2005) FLC ¶93-247 …. 8.117 W & G (No 2) (2006) 35 Fam LR 439; (2005) FLC ¶93-248 …. 8.37, 9.68, 9.69, 9.70 W & W, Re: Abuse Allegations; Expert Evidence (2001) 28 Fam LR 45; FLC ¶93-085 …. 3.40, 8.87 W & W (1980) 6 Fam LR 538; FLC ¶90-872 …. 14.18, 14.67 W & W [2003] FMCAfam 82 …. 6.70 Wade-Ferrell & Read (2001) 27 Fam LR 484; FLC ¶93-069 …. 4.86, 4.87 Waite & Waite-Hollins (2007) FLC ¶193-325 …. 8.158 Wakim, Re; Ex parte McNally (1999) 198 CLR 511 …. 1.61, 4.3, 4.22, 4.84, 4.86, 4.99, 4.100, 4.102, 4.104, 12.40 Wall & Wall (2002) FLC ¶93-110 …. 14.48 Wallace & Stelzer (2013) 51 Fam LR 115; FLC ¶93-566 …. 15.53, 15.58 Wallace & Stelzer [2014] HCATrans 135 …. 15.53 Walls & Robinson (2006) FLC ¶93-251 …. 9.121 Walsh & Johnson, Ex parte; Yates, Re (1925) 37 CLR 36 …. 4.23 Warby, Marriage of (2001) 28 Fam LR 443; (2002) FLC ¶93-091 …. 4.87, 13.11 Ward v Trench [2013] FamCA 478 …. 5.110

Wardale, Marriage of (1990) 99 FLR 436; 14 Fam LR 195; FLC ¶92-151 …. 6.9, 6.95, 6.96 Wardman & Hudson (1978) 5 Fam LR 889; FLC ¶90-466 …. 14.13, 14.18 Warhurst & Landy [2014] FamCAFC 201 …. 8.69 Warne & Warne (1982) 8 Fam LR 388; FLC ¶91-247 …. 13.30 Warnock & Warnock (1979) 5 Fam LR 668; FLC ¶90-726 …. 10.37 Warren & Warren (1986) 12 Fam LR 245; FLC ¶91-923 …. 6.9 Waters & Jurek (1995) 20 Fam LR 190; FLC ¶92-635 …. 10.4, 14.59, 14.60, 14.67 Watkins v Watkins (1952) 86 CLR 161 …. 6.77 Watson v Ling (2013) 49 Fam LR 303; FLC ¶93-527 …. 13.16, 13.29 — v Watson [2006] FMCAfam 293 …. 10.39 Watts & Watts (1976) 1 Fam LR 11,266; FLC ¶90-046 …. 8.95 Waugh & Waugh (1999) 27 Fam LR 63; (2000) FLC ¶93-052 …. 15.15 Way v Way [1950] P 71 …. 6.44 Webber & Webber (1985) 10 Fam LR 505; FLC ¶91-648 …. 15.4 Weir & Weir (1992) 16 Fam LR 154; (1993) FLC ¶92-388 …. 13.33 Weldon & Asher (2014) FLC ¶93-579; FCWA 11 …. 15.50 Wenceslas & Director-General, Department of Community Services [2007] FamCA 398 …. 8.153, 8.156 West & Green (1991) 16 Fam LR 811 …. 15.4 Whelan & Whelan [2010] FamCA 530 …. 14.42 Whistler & Whistler [2012] FamCAFC 97 …. 15.76 Whitaker, Marriage of (1980) 5 Fam LR 769; FLC ¶90-813 …. 15.31 White v White [2001] 1 AC 596 …. 14.52 White & Tulloch v White (1995) 19 Fam LR 696; FLC ¶92-640 …. 13.21 Whitehouse v Whitehouse (2009) 236 FLR 272; 42 Fam LR 319; FLC ¶93-415; [2009] FamCAFC 207 …. 4.88, 12.36 Whiteley, Marriage of (1992) FLC ¶92-304 …. 14.12, 14.25 Whiteoak, Marriage of (1980) FLC ¶90-837 …. 6.69, 6.70 Whitford, Marriage of (1979) 4 Fam LR 754; FLC ¶90-612 …. 10.18, 10.27, 13.2, 13.4, 13.6 Whitly v Ingham (2013) FCCA 869 …. 7.11 Wiggins, Marriage of (1976) 9 ALR 8; 1 Fam LR 11,101; FLC ¶90-004 …. 6.79 Wilcock v Sain (1986) 11 Fam LR 302; DFC ¶96-040 …. 6.117 Wilkie v Mirkja [2010] FamCA 667 …. 7.49 Wilkinson-Beards & Wilkinson-Beards (1985) FLC ¶91-647 …. 15.4 Williams, Marriage of (1984) 9 Fam LR 789; FLC ¶91-541 …. 13.21, 14.55 Williams v Child Support Registrar (2009) 109 ALD 343 …. 11.56 — v Williams [1964] AC 698 …. 1.32, 1.33 Williams & Williams [2007] FamCA 313 …. 14.46

Williams and Williams (1985) FLC ¶91-628 …. 14.55 Williamson & Williamson (1978) 4 Fam LR 355; FLC ¶90-505 …. 10.19 Willis, Ex parte (1997) 21 Fam LR 479; FLC ¶92-725 …. 5.37, 5.39, 5.43 Wilson v Roberts (No 2) [2010] FamCA 734 …. 7.21 Wilson v Wilson (1994) FLC ¶92-498 …. 15.33 — v — [2010] FMCAfam 436 …. 6.70, 6.81 Wilson & Wilson (1989) 13 Fam LR 205; FLC ¶92-033 …. 10.23, 10.26 Winston & Winston (No 2) [2013] FamCAFC 147 …. 13.31 Wirth v Wirth (1956) 98 CLR 228 …. 12.15, 13.11 Wolford & Attorney-General’s Department (Cth) [2104] FamCAFC 197 …. 8.157 Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 …. 14.4 Woodland v Rodriguez [2004] NSWSC 1167 …. 10.54 Woolley v Carney (2005) 33 Fam LR 294 …. 11.81 Woolley & Woolley (No 2) (1981) FLC ¶91-011 …. 10.27 Wreford & Caley (2010) 43 Fam LR 1; [2010] FamCAFC 21 …. 10.37, 11.17

X X, Marriage of (1983) 8 Fam LR 793; FLC ¶91-306 …. 5.66 Xuereb & Xuereb (1976) 1 Fam LN 9; FLC ¶90-029 …. 6.66, 6.69

Y Y v Austin Health (2005) 13 VR 363 …. 7.30 Yamada & Cain [2013] FamCAFC 64 …. 9.61 Yarwood v Shore [2013] FCCA 2219 …. 15.67 Yousseff & Youseff [1995] FamCA 102 …. 15.74

Z Z, Re [1970] 15 FLR 420 …. 5.37, 5.38, 5.41 Z, Re (1996) 20 Fam LR 651; FLC ¶92-694 …. 8.55 Z (No 2), Re (1996) 20 Fam LR 743; FLC ¶92-708 …. 3.52, 8.66 Zabaneh, Marriage of (1986) 11 Fam LR 167; FLC ¶91-766 …. 8.105, 8.107 Zafiropoulos v Secretary of the Department of Human Services State Central Authority (2006) 35 Fam LR 489; FLC ¶93-264 …. 8.157, 8.158 Zanda & Zanda [2014] FamCAFC 173 …. 8.91 Zappacosta, Marriage of (1976) 2 Fam LR 11,214; FLC ¶90-089 …. 14.12 Zau v Huang [2015] FamCA 873 …. 5.26, 5.80, 6.108 — v Uong [2013] FamCA 347 …. 5.101

Zegarac v Tomasevic (2003) DFC ¶93-278 …. 5.95 ZN v YH & Child Representative (2002) 29 Fam LR 20; FLC ¶93-101 …. 9.43, 9.45 Zorbas & Zorbas (1990) 14 Fam LR 226; FLC ¶92-160 …. 13.21 Zotkiewicz v Commissioner of Police (No 2) (2011) 252 FLR 139; FLC ¶93-472; [2011] FamCAFC 147 …. 8.154 ZP v PS; PS, Re; Ex parte ZP (1994) 17 Fam LR 600; FLC ¶92-480 …. 8.160 Zubcic, Marriage of (1995) FLC ¶92-609 …. 14.12, 14.55 Zyk & Zyk (1995) 19 Fam LR 797; FLC ¶92-644 …. 14.54

TABLE OF STATUTES ___________________________

References are to paragraph numbers

Commonwealth Acts Interpretation Act 1901 s 2C …. 15.18 s 15A …. 4.38 s 36 …. 6.72 s 36(1) …. 6.115 Administrative Decisions (Judicial Review) Act 1977 …. 5.41, 5.43 Australian Consumer Law …. 4.84 s 18 …. 4.84 s 29 …. 4.84 Australian Human Rights Commission Act 1986 s 46MB …. 8.2 Bankruptcy Act 1966 …. 15.61, 15.65 Bankruptcy and Family Law Legislation Amendment Act 2005 …. 15.28, 15.62 s 3 …. 15.48 s 22 …. 10.21 Sch 1, ss 9–17 …. 10.25 Sch 1, s 23 …. 10.25 Sch 1, s 24 …. 10.32 Sch 1, s 27 …. 14.66 Sch 5(4) …. 15.48 Child Support (Assessment) Act 1989 …. 7.9, 7.26, 10.25, 10.63, 11.1, 11.4, 11.39, 11.44, 11.50, 11.61, 11.63, 11.65, 11.66, 11.74, 11.78, 11.79, 11.89–11.91, 13.12, 13.13, 14.63, 15.46 Pt 5 …. 11.71

Pt 6 …. 11.90 Pt 6, Divs 2-3 …. 15.46 Pt 6, Div 3 …. 11.91 Pt 6A …. 11.74, 11.84 Pt 6A, Div 2 …. 11.75 Pt 6A, Div 3 …. 11.75 Pt 7 …. 11.4 Pt 7, Div 3 …. 11.74 Pt 7, Div 4 …. 11.74, 11.85, 11.91 Pt 7, Div 5 …. 11.86 s 3 …. 11.62, 11.75 s 4 …. 11.32, 11.62 s 4(2) …. 11.62 s 4(3) …. 11.62 s 4(3)(a) …. 11.89 s 5 …. 7.25, 11.35, 11.63, 11.65, 11.93 s 7A(3)(a) …. 11.70 s 7B(1) …. 11.64 s 12 …. 11.93 s 12(1)(a) …. 11.93 s 12(1)(b) …. 11.93 s 12(1)(c) …. 11.93 s 12(1)(d) …. 11.93 s 12(1)(e) …. 11.93 s 12(1)(f) …. 11.93 s 12(2) …. 11.93 s 12(2AA) …. 11.93 s 12(2A) …. 11.93 s 12(3) …. 11.93 s 12(3)(a) …. 11.93 s 12(3A) …. 11.93 s 18 …. 11.63 s 22 …. 11.93 s 24 …. 11.5, 11.63, 11.68 s 24(1)(b) …. 11.64 s 24(2) …. 11.64 s 25 …. 11.5, 11.64, 11.68 s 25(b) …. 11.64

s 25A …. 11.64, 11.68 s 27 …. 11.68 s 29 …. 7.26, 11.68 s 29(1) …. 11.68 s 29(2) …. 7.26, 11.68 s 29(2)(a)–(i) …. 7.9 s 29(2)(b) …. 7.26 s 29(2)(c) …. 11.68 s 29(2)(i) …. 7.26 s 29A …. 11.64 s 30 …. 11.69 s 30A …. 11.64 s 31 …. 11.69 s 33(1) …. 11.69 s 34(1) …. 11.69 s 35 …. 11.72 s 35C …. 11.72 s 36 …. 11.72 s 44 …. 11.77 s 55C …. 11.72 s 60 …. 11.73 s 63AA …. 11.73 s 63AA(4) …. 11.73 s 64 …. 11.73 s 64AF …. 11.73 s 66F(1)(b) …. 11.64 s 74 …. 11.93 s 80C(2) …. 11.90 s 80CA …. 11.90 s 80D …. 11.90 s 80E(1) …. 11.90 s 80G(1)(d) …. 11.90 s 80G(1)(e) …. 11.90 s 81 …. 11.90 s 84 …. 11.90 s 84(5) …. 11.90 s 88 …. 11.91 s 92 …. 11.91

s 93 …. 11.91 s 98C …. 10.63 s 98E …. 11.74 s 98F …. 11.79 s 98J …. 11.79 s 98J(2) …. 11.85 s 98L(1) …. 11.75 s 98R …. 11.74 s 107 …. 11.66, 11.68 s 116(1) …. 11.74 s 117 …. 10.63, 11.75, 11.85 s 117(1) …. 11.75 s 117(1)(b)(i) …. 11.75 s 117(1)(b)(ii)(A) …. 11.75 s 117(1)(b)(ii)(B) …. 11.75 s 117(2) …. 11.75, 11.76 s 117(2)(a) …. 10.63, 11.77, 11.78, 11.80 s 117(2)(a)(i) …. 11.35 s 117(2)(a)(iii)(B) …. 11.78 s 117(2)(a)(iv) …. 11.80 s 117(2)(aa) …. 11.77, 11.78 s 117(2)(b) …. 11.80 s 117(2)(b)(i) …. 11.80 s 117(2)(c) …. 11.81 s 117(2)(c)(iii) …. 11.78, 11.81 s 117(2)(c)(iv) …. 11.78 s 117(2B) …. 11.80 s 117(2C) …. 11.80 s 117(3A) …. 11.80 s 117(3B) …. 11.80, 11.83 s 117(4) …. 11.75, 11.76 s 117(4)(a) …. 11.75 s 117(5) …. 11.75 s 117(6)–(9) …. 11.75 s 117(7B) …. 11.75 s 117(7B)(c) …. 11.83 s 118 …. 11.84 s 118(4) …. 11.89

s 123 …. 11.86 s 123(2) …. 11.86 s 123(2)(a) …. 11.86 s 123(3) …. 11.86 s 124 …. 11.86, 11.87 s 124(1) …. 11.87 s 124(2) …. 11.87 s 124(5) …. 11.87 s 126(2) …. 11.89 s 136 …. 11.90, 11.92 s 141 …. 11.84 s 142 …. 11.93 s 143 …. 11.29, 11.66, 11.67 s 143(1)–(3A) …. 11.66 s 143(3A) …. 11.66 s 143(3B) …. 11.66 s 150A …. 11.68 s 151B …. 11.93 s 152 …. 15.46 Child Support Legislation Amendment Act 1992 …. 11.74 Child Support Legislation Amendment Act 1998 …. 11.70 Child Support (Registration and Collection) Act 1988 …. 10.39, 11.1, 11.39, 11.48, 11.49, 11.53, 11.54 Pt IV, Div 3 …. 11.57 Pt V …. 11.58 Pt VI, Div 2 …. 11.59 s 3(1) …. 11.49 s 3(2) …. 11.49 s 4(1) …. 11.57 s 5 …. 11.50 s 10 …. 11.48 s 13 …. 11.48 s 17 …. 11.51 s 17A …. 11.51 s 18 …. 11.51 s 18A …. 11.51 s 23 …. 11.51 s 23(4) …. 11.52

s 24 …. 11.51 s 24A(1) …. 11.51 s 30 …. 11.53 s 30(3) …. 11.53 s 30A …. 11.53, 11.55 s 38A …. 11.53 s 38B(1) …. 11.53 s 44 …. 11.57 s 44(1) …. 11.57 s 46 …. 11.57 s 46(4) …. 11.57 s 47 …. 11.57 s 57 …. 11.57 s 58 …. 11.57 s 59 …. 11.57 s 61 …. 11.57 s 66 …. 11.58 s 71A …. 11.81 s 71B …. 11.81 s 71C …. 11.81 s 72A …. 11.55 s 72A(1)(g) …. 11.55 s 72AA …. 11.55 s 72AB …. 11.55 s 72AC …. 11.55 s 72B …. 11.55 s 72C …. 11.55 s 72C(3) …. 11.55 s 72C(4) …. 11.55 s 72D …. 11.56 s 72D(1)(b) …. 11.56 s 72D(1)(c) …. 11.56 s 72D(1)(d) …. 11.56 s 72D(2) …. 11.56 s 72F …. 11.56 s 72M(1) …. 11.56 s 73 …. 11.59 s 74 …. 11.59

s 76 …. 11.59 s 113 …. 11.54 s 113(1)(c) …. 11.54 Child Support (Registration and Collection) Regulations 1988 reg 3 …. 11.57 Civil Dispute Resolution Act 2011 …. 2.27 s 3 …. 2.26 Competition and Consumer Act 2010 Sch 2 see Australian Consumer Law Constitution …. 1.35, 1.39, 1.40, 1.45, 1.61, 1.62, 3.7, 4.1–4.3, 4.8–4.11, 4.22, 4.24, 4.28, 4.30, 4.39, 4.53, 4.69, 4.71, 4.75, 4.80, 4.82, 4.89, 4.100, 4.113 Ch III …. 4.60, 4.99, 4.114 s 51 …. 1.35, 4.2, 4.6, 4.89 s 51(xx) …. 15.24 s 51(xxi) …. 1.35, 4.2, 4.3, 4.6, 4.10, 4.14, 4.17, 4.37, 4.47, 4.61, 4.89, 5.19, 5.85, 10.18, 12.33, 15.16 s 51(xxii) …. 1.35, 4.2, 4.6, 4.8, 4.10, 4.14, 4.21, 4.24, 4.25, 4.37, 4.44, 4.47, 4.61, 4.89, 12.37, 15.16 s 51(xxxi) …. 15.22, 15.23 s 51(xxxvii) …. 4.89, 4.100, 15.16 s 51(xxxix) …. 1.35, 4.2, 4.44, 4.45, 4.100 s 71 …. 4.32 s 75 …. 4.67 ss 75–77 …. 4.67 s 76 …. 4.67 s 77(iii) …. 1.38, 1.44, 4.32, 4.71 s 92 …. 9.121 s 109 …. 3.23, 4.17, 4.60, 4.85, 7.23, 7.33, 8.110, 8.121 s 116 …. 9.73 s 122 …. 1.45, 4.71, 4.113 Corporations Act 1989 …. 4.101 Courts (Mediation and Arbitration) Act 1991 …. 2.2 Diplomatic Privileges and Immunities Act 1967–73 …. 12.39 Domicile Act 1982 …. 4.110 s 9 …. 4.110 s 11 …. 4.110 Evidence Act 1995 …. 2.47, 5.99, 8.68, 8.69, 9.113 s 8 …. 9.113 s 131 …. 2.59

s 131(1) …. 2.49 s 138 …. 2.47 s 140 …. 3.20, 9.108 s 144(1) …. 9.20 s 144(2) …. 9.20 s 144(4) …. 9.20 Evidence Amendment (Journalists’ Privilege) Act 2007 …. 8.66 Family Court Amendment Act 1997 Pt 5A …. 12.22 Family Law Act 1975 …. 1.12, 1.13, 1.27, 1.40, 1.42, 1.44–1.46, 1.48, 1.53, 1.57, 1.64, 1.71, 1.74, 1.77–1.79, 2.2, 2.3, 2.10, 2.57, 3.2–3.4, 3.13, 3.15, 3.20, 3.23, 3.26, 3.39, 3.42, 4.1, 4.21, 4.28–4.30, 4.32–4.44, 4.46–4.49, 4.51, 4.54, 4.55, 4.60, 4.61, 4.67, 4.68, 4.70–4.73, 4.75–4.77, 4.79, 4.80, 4.82, 4.90, 4.98, 4.103, 4.108, 4.109, 4.111–4.113, 4.116, 4.117, 4.119, 4.120, 4.129, 5.2, 5.9, 5.86, 5.88–5.93, 5.95, 5.97, 5.99, 5.101, 5.102, 5.104, 5.105, 5.113–5.116, 5.119, 6.1, 6.3–6.5, 6.7, 6.10, 6.11, 6.13, 6.18, 6.27, 6.33, 6.48, 6.55, 6.57, 6.58, 6.63, 6.66, 6.68, 6.71, 6.79, 6.82, 6.87, 6.88, 6.94, 6.95, 6.104, 6.110–6.113, 6.115, 6.119, 6.122, 6.124, 7.6–7.8, 7.10, 7.14, 7.17, 7.19, 7.20, 7.23, 7.35, 7.39, 7.45, 7.51–7.53, 7.55, 7.56, 7.58, 8.1, 8.4, 8.5, 8.8, 8.13, 8.16, 8.21, 8.22, 8.25, 8.26, 8.40, 8.42, 8.44, 8.46, 8.51, 8.55–8.57, 8.63–8.65, 8.68, 8.70, 8.72, 8.74, 8.77, 8.80, 8.89, 8.90, 8.101, 8.106, 8.125, 8.132, 8.147, 8.149, 9.1, 9.3, 9.9, 9.12, 9.14, 9.26, 9.27, 9.29, 9.33, 9.40, 9.46, 9.50, 9.51, 9.59, 9.60, 9.64, 9.65, 9.82, 9.85, 9.88, 9.93–9.96, 9.100, 9.104, 9.113, 9.115, 9.116, 9.121, 9.124, 9.127, 10.3, 10.11, 10.12, 10.14, 10.15, 10.17, 10.18, 10.20–10.23, 10.25, 10.26, 10.33, 10.34, 10.39, 10.40, 10.44, 10.45, 10.47, 10.49–10.52, 10.55, 10.61, 10.62, 11.1, 11.2, 11.9, 11.14, 11.18, 11.26, 11.29, 11.30, 11.39, 11.44, 11.54, 11.82, 11.85, 11.86, 11.90, 12.2, 12.7, 12.21, 13.1, 15.17, 15.35, 15.41, 15.42, 15.45, 15.63, 15.65 Ch 7 …. 11.68 Pt II …. 2.4, 2.5, 2.55, 2.58, 2.59, 2.63, 2.66 Pt II, Div 2 …. 2.4, 2.5, 2.55, 2.60 Pt II, Div 3 …. 2.4, 2.5, 2.15 Pt II, Div 4 …. 2.4, 2.5, 2.23 Pt III …. 2.4, 2.44 Pt IIIA …. 2.4 Pt IIIB …. 2.4, 2.55 Pt IIIB, Div 4 …. 2.23 Pt V …. 6.88 Pt VII …. 1.74, 1.76, 2.28, 2.31, 3.6, 3.17, 3.24, 3.52, 4.61, 4.63, 4.67, 4.68, 4.111, 7.6, 8.1, 8.4, 8.9, 8.12, 8.13, 8.17, 8.35, 8.40–8.42, 8.44, 8.48, 8.56, 8.68, 8.69, 8.87, 8.94, 8.100, 8.107, 8.109, 8.111, 8.113, 8.116, 8.125, 8.130, 8.132, 8.144, 8.145, 9.1, 9.3, 9.18, 9.22, 9.26, 9.27, 9.30, 9.60, 9.61, 9.81, 9.82, 9.89, 9.100, 9.113, 9.118, 11.4, 11.24, 14.38

Pt VII, Div 1, Subdiv E …. 2.28 Pt VII, Div 3 …. 2.55 Pt VII, Div 5 …. 8.45 Pt VII, Div 6 …. 4.60, 4.121, 8.53, 11.24 Pt VII, Div 6, Subdiv B …. 8.53 Pt VII, Div 6, Subdiv E …. 8.143 Pt VII, Div 7 …. 10.27, 11.8, 11.24, 11.75 Pt VII, Div 8, Subdiv B, ss 67N–67G …. 10.62 Pt VII, Div 8, Subdiv C …. 8.94, 8.146 Pt VII, Div 11 …. 3.24, 8.109–8.111, 9.31 Pt VII, Div 12, Subdiv D …. 7.8 Pt VII, Div 12, Subdiv E …. 7.10, 7.12, 8.45, 8.67 Pt VII, Div 12, Subdiv F …. 8.16 Pt VII, Div 12A …. 8.69 Pt VII, Div 13 …. 8.140 Pt VII, Div 13A …. 4.115, 8.41, 8.46, 8.129, 8.142 Pt VII, Div 13A, Subdiv C …. 8.131, 8.133 Pt VII, Div 13A, Subdiv D …. 8.131 Pt VII, Div 13A, Subdiv E …. 8.131 Pt VII, Div 13A, Subdiv F …. 8.130, 8.131, 8.136, 8.140 Pt VIIB …. 12.22 Pt VIII …. 1.79, 2.23, 5.26, 6.106, 6.124, 10.36, 10.51, 10.57, 12.15, 12.30, 12.33, 13.1, 14.10, 14.37–14.39, 15.37, 15.42, 15.49, 15.55, 15.56 Pt VIIIAA …. 4.47, 12.41, 12.42, 13.11, 15.17, 15.18, 15.20, 15.22–15.26, 15.30 Pt VIIIA …. 2.23, 10.25, 11.15, 15.23, 15.40, 15.42, 15.43, 15.45, 15.47, 15.48, 15.59 Pt VIIIAB …. 2.23, 5.93, 5.96, 5.98, 5.104, 5.114, 6.3, 6.114, 6.115, 6.122, 6.124, 10.30, 10.31, 10.47, 10.48, 10.51, 10.52, 10.54, 10.57, 12.21, 12.22, 12.36, 12.44, 12.45, 13.1, 13.13, 14.38, 14.39, 15.3, 15.18, 15.37, 15.43, 15.45, 15.46 Pt VIIIAB, Div 2 …. 6.124 Pt VIIIAB, Div 4 …. 5.93, 15.42 Pt VIIIB …. 2.23, 15.3, 15.4, 15.6, 15.7, 15.46, 15.50, 15.61 Pt XIII …. 4.115, 11.4 Pt XIIIA …. 3.20, 4.115, 8.128, 10.39 Pt XIIIB …. 3.20, 10.39 Pt XIV …. 3.17 Pt XIX …. 3.11 s 4 …. 3.47, 4.29, 6.110, 7.17, 7.19, 8.109, 10.25, 11.7, 11.28, 12.37, 14.9, 15.18, 15.27, 15.44 s 4(1) …. 2.61, 2.62, 3.3, 3.9, 3.38, 3.39, 4.35, 4.37, 4.111, 5.91, 5.99, 6.3, 6.4, 6.7,

6.20, 6.43, 6.96, 6.104, 6.117, 6.124, 6.126, 8.23, 8.26, 8.45, 8.46, 8.54, 8.56, 8.82, 8.129, 9.30, 9.72, 9.127, 10.18, 10.62, 12.29, 12.34, 12.43, 13.19, 15.10, 15.42 s 4(1)(a) …. 4.111, 6.12, 13.20 s 4(1)(a)–(e) …. 4.108 s 4(1)(b) …. 4.111, 6.20, 6.107, 13.20 s 4(1)(c) …. 13.3 s 4(1)(c)(iii) …. 4.34, 4.35 s 4(1)(ca) …. 12.29, 12.30, 12.32, 13.3 s 4(1)(ca)(i) …. 4.43, 4.47, 12.32, 12.33, 12.36–12.38 s 4(1)(ca)(ii) …. 4.38, 12.33, 12.37 s 4(1)(ca)(iii) …. 12.33, 12.38 s 4(1)(caa) …. 13.3 s 4(1)(cb) …. 13.3 s 4(1)(e) …. 15.13 s 4(1)(eaa) …. 12.30 s 4(1)(f) …. 12.30 s 4(2) …. 12.30 s 4(2)(b) …. 6.106 s 4(2A) …. 12.44 s 4AA …. 5.92–5.94, 5.96–5.98, 5.100, 5.103–5.105, 5.107, 5.108, 5.112, 5.113, 5.117, 6.113, 6.117, 6.119, 7.18, 7.19, 8.53, 11.16, 12.44 s 4AA(1) …. 5.93, 5.94, 5.96, 5.99–5.101, 5.103, 5.104, 5.114, 6.119, 6.122 s 4AA(1)(c) …. 5.94, 5.97, 5.105, 5.113 s 4AA(2) …. 5.95, 5.103, 5.105, 5.108, 5.114 s 4AA(2)(a) …. 5.106, 6.116 s 4AA(2)(b) …. 5.106 s 4AA(2)(c) …. 5.108 s 4AA(2)(d) …. 5.109 s 4AA(2)(e) …. 5.109 s 4AA(2)(f) …. 5.110 s 4AA(2)(g) …. 5.96, 5.112, 5.117 s 4AA(2)(h) …. 5.111 s 4AA(2)(i) …. 5.113 s 4AA(3) …. 5.105 s 4AA(4) …. 5.99, 5.105 s 4AA(5) …. 5.100, 6.123 s 4AA(5)(b) …. 5.104, 5.108 s 4AA(6) …. 5.94

s 4AB …. 1.78, 3.3, 8.157, 9.30 s 4AB(1) …. 3.3, 8.56, 8.109 s 4AB(2) …. 3.3 s 4AB(3) …. 1.78, 3.3 s 5 …. 4.35 s 5(1) …. 4.35, 4.41 s 5(1)(c) …. 4.36, 4.41 s 5A …. 7.17 s 6 …. 5.7, 5.8, 5.68, 6.15, 6.111 s 7 …. 1.45, 4.113 s 8(1) …. 12.31 s 9(1) …. 6.126 s 9(2) …. 6.126 s 9(4) …. 4.34 s 10B …. 2.57, 2.55 s 10C …. 2.55, 2.61 s 10D …. 2.60, 2.61, 2.63, 2.64 s 10D(2) …. 2.60 s 10D(3) …. 2.60, 2.61 s 10D(3)(a) …. 2.61 s 10D(4) …. 2.60, 2.62 s 10D(6) …. 2.62 s 10E …. 2.60–2.64, 3.40 s 10E(2) …. 2.61, 2.62 s 10E(2)(a) …. 2.61 s 10E(2)(b) …. 2.62 s 10F …. 2.8, 2.9, 2.17, 2.64 s 10G …. 2.9 s 10G(1) …. 2.10 s 10G(1)(a) …. 2.10 s 10H …. 2.60, 2.61 s 10H(2) …. 2.60 s 10H(3) …. 2.60 s 10H(4) …. 2.62, 2.63 s 10H(7) …. 2.62 s 10J …. 2.60, 2.62–2.64, 3.40 s 10J(2) …. 2.63 s 10J(2)(b) …. 2.63

s 10L(1) …. 2.24 s 10L(2) …. 2.24 s 11A …. 2.45, 2.46 s 11A(c) …. 2.45 s 11C …. 2.48, 3.40 s 11C(1) …. 2.47 s 11C(2) …. 2.47 s 11C(3) …. 2.47 s 11D …. 2.47 s 11E …. 2.45 s 11F …. 2.46, 2.67, 8.91 s 11G(1A) …. 2.46 s 13A(1)(a) …. 2.56 s 13A(1)(d) …. 2.56 s 13B …. 2.2, 2.56 s 13C …. 2.2, 2.32, 2.49, 2.51, 2.56 s 13C(1) …. 8.53 s 13E …. 2.23, 2.25 s 13G …. 2.23 s 13H …. 2.23 s 13J(1) …. 2.23 s 13J(2) …. 2.23 s 13K(2) …. 2.23 s 14(6) …. 6.88 s 19N …. 2.64, 3.40 s 20 …. 1.45, 4.113 s 21 …. 1.44, 1.45, 4.113 s 21A …. 4.126 s 22(2) …. 1.47, 4.116 s 22(2)(a) …. 1.47 s 22(2)(b) …. 1.47 s 22(2AA)–(2A) …. 4.126 s 22(2A) …. 4.76, 4.117 s 22(2B) …. 4.76 s 28 …. 6.96 s 31 …. 1.45, 4.87, 4.113 s 31(1)(c) …. 4.71 s 33 …. 4.6, 4.83

s 33A(1) …. 4.115 s 33A(2) …. 4.115 s 33B …. 4.115 s 35 …. 8.141 s 38BD …. 2.46 s 39 …. 4.32, 4.37, 4.38, 4.72, 4.111, 4.115, 10.18 s 39(1) …. 6.5 s 39(1A) …. 6.5 s 39(2) …. 6.5 s 39(3) …. 6.6, 6.107 s 39(3)–(4) …. 4.108 s 39(4) …. 4.108, 6.6, 6.107, 6.110 s 39(5) …. 4.72 s 39(6) …. 4.72 s 39(7) …. 4.72 s 40 …. 10.18 s 40(3) …. 4.32, 4.72 s 40A …. 6.5 s 41 …. 1.48, 4.32, 4.73, 4.80, 4.116, 10.18 s 41(1) …. 4.73 s 41(3) …. 6.5 s 41(4) …. 4.73 s 41(4)(a) …. 4.73 s 41(4)(b) …. 4.73 s 41(4)(c) …. 4.73 s 42(2) …. 6.110 s 43 …. 1.74, 3.13, 4.116 s 43(1) …. 1.49 s 43(1)(a) …. 1.49, 1.53, 5.4, 5.10, 6.33 s 43(1)(b) …. 1.49, 1.53 s 43(1)(c) …. 6.58, 6.99, 8.65, 9.95 s 43(1)(ca) …. 1.74, 3.13, 9.29 s 44 …. 4.112 s 44(1A) …. 6.7 s 44(1B) …. 6.88, 6.89 s 44(1C) …. 6.88, 6.89 s 44(3) …. 6.113, 10.18, 13.2–13.5 s 44(3A) …. 10.18

s 44(3B) …. 13.5 s 44(4) …. 10.18, 10.49, 13.4, 13.6 s 44(4)(b) …. 10.35 s 44(5) …. 6.115, 10.52, 13.2, 13.6 s 44(6) …. 6.115, 10.52, 13.6 s 44A …. 6.5 s 46 …. 10.18 s 46(2A) …. 6.5 s 48 …. 1.40, 5.15, 6.8, 6.59, 6.72, 6.85, 6.86, 10.15, 15.48 ss 48–50 …. 6.4 s 48(2) …. 1.40, 6.72 s 48(3) …. 6.8, 6.59, 6.84 s 49 …. 6.59, 6.68, 6.80 s 49(1) …. 6.66 s 49(2) …. 6.60, 6.64, 6.73, 6.80 s 50 …. 6.86 s 50(1) …. 6.68, 6.86, 6.87 s 50(2) …. 6.87 s 51 …. 5.29, 5.30, 6.4, 6.13, 6.108 s 51(3) …. 1.43 s 52 …. 6.4, 6.106 s 55 …. 6.9, 6.91 s 55(1) …. 6.9 s 55(2)(b) …. 6.9 s 55(5) …. 6.103 s 55A …. 4.41, 6.16, 6.91, 6.94, 6.95, 6.97–6.102, 6.126 s 55A(2) …. 6.97, 6.98, 8.93 s 55A(3) …. 6.8, 6.101, 6.102 s 55A(4) …. 6.101 s 56 …. 6.94 s 57 …. 6.68, 6.103 s 58 …. 6.103 s 59 …. 6.16 s 60 …. 11.28 s 60(3)(k) …. 9.30 s 60(9)(b) …. 2.41 s 60B …. 3.3, 7.17, 8.4, 8.9, 8.17, 8.18, 8.25, 8.57, 8.100, 8.111, 8.132, 9.3, 9.26 s 60B(1) …. 8.17, 9.30, 9.82

s 60B(1)(a) …. 8.100, 8.111, 9.22, 9.27 s 60B(1)(b) …. 8.111, 9.100 s 60B(2) …. 8.18 s 60B(2)(a) …. 9.89 s 60B(2)(b) …. 9.60, 9.89, 9.93, 9.96, 9.118 s 60B(2)(d) …. 8.40 s 60B(2)(e) …. 9.81 s 60B(3) …. 8.18 s 60B(4) …. 3.6, 8.4, 8.18 s 60CA …. 3.52, 8.12, 8.46, 8.53, 8.56, 8.63, 8.64, 8.97, 8.98, 8.108, 9.2, 9.96, 9.100, 9.128 s 60CC …. 3.3, 8.63, 8.108, 9.3–9.5, 9.24, 9.26, 9.39, 9.61, 9.63, 9.71, 9.121 s 60CC(1) …. 8.57 s 60CC(1)(a) …. 9.82 s 60CC(2) …. 2.53, 7.57, 8.12, 8.57, 8.94, 9.3, 9.26 s 60CC(2)(a) …. 1.77, 8.100, 8.112, 9.27, 9.60 s 60CC(2)(b) …. 9.28, 9.30, 9.100 s 60CC(2A) …. 1.78, 8.15, 8.57, 8.111, 9.26, 9.28, 9.30, 9.39, 9.100, 9.102, 9.106, 9.107 s 60CC(3) …. 8.12, 8.57, 8.94, 9.3, 9.13, 9.31, 9.55, 9.61, 9.93 s 60CC(3)(a) …. 8.75, 9.13, 9.41, 9.76, 9.93 s 60CC(3)(b) …. 9.13, 9.16, 9.55, 9.71, 9.93 s 60CC(3)(c) …. 1.77, 9.13 s 60CC(3)(d) …. 9.16, 9.46, 9.49, 9.55 s 60CC(3)(d)(ii) …. 9.51, 9.93 s 60CC(3)(e) …. 9.118 s 60CC(3)(f) …. 9.55, 9.63, 9.71 s 60CC(3)(g) …. 9.71, 9.81 s 60CC(3)(h) …. 9.81, 9.85 s 60CC(3)(i) …. 9.63 s 60CC(3)(j) …. 9.28, 9.30, 9.63 s 60CC(3)(k) …. 3.24, 9.28, 9.30 s 60CC(3)(l) …. 8.96 s 60CC(3)(m) …. 9.61, 9.63, 9.71 s 60CC(5) …. 8.57, 8.94 s 60CC(6) …. 9.81, 9.85 s 60CD …. 9.44 s 60CE …. 9.44 s 60CF …. 9.31

s 60CF(1) …. 9.31 s 60CF(2) …. 9.31 s 60CF(3) …. 9.31 s 60CG …. 3.3, 3.24, 8.112, 8.115, 9.31 s 60CG(1) …. 9.31 s 60CG(1)(b) …. 8.112, 9.31 s 60CG(2) …. 9.31 s 60CH …. 3.53 s 60CI …. 3.53 s 60D …. 2.53, 7.20 s 60D(2) …. 2.52 s 60EA …. 5.96, 7.18 s 60EA(a) …. 5.96, 5.112 s 60F …. 8.16, 11.2, 11.34, 11.36 s 60G …. 7.46 s 60H …. 4.60, 5.93, 5.96, 5.103, 5.111, 7.7, 7.17–7.20, 7.23–7.26, 7.46, 7.51, 7.52, 9.62, 11.7, 11.65 s 60H(1) …. 5.96, 6.115, 7.8, 7.18–7.21, 7.23, 7.25, 7.46, 7.54 s 60H(1)(a) …. 5.93 s 60H(1)(b) …. 5.93, 5.103 s 60H(1)(b)(ii) …. 7.17 s 60H(1)(c) …. 7.19 s 60H(1)(d) …. 7.20 s 60H(2) …. 5.107, 7.23, 7.25 s 60H(2)(b) …. 7.17 s 60H(2)(e) …. 4.60 s 60H(3) …. 7.17, 7.23, 7.25, 7.26, 7.52, 7.54 s 60H(5) …. 7.18 s 60HA(1) …. 5.107 s 60HB …. 7.7, 7.45, 7.46, 7.49–7.53, 11.65 s 60I …. 2.10, 2.11, 2.31, 2.33, 2.35, 2.40, 2.50 s 60I(1) …. 2.17, 2.26 s 60I(2)–(6) …. 2.28 s 60I(5) …. 2.29 s 60I(7) …. 2.28, 2.33, 2.41, 8.43 s 60I(8) …. 2.17, 2.30, 2.31 s 60I(8)(a) …. 2.30 s 60I(8)(aa) …. 2.30

s 60I(8)(b) …. 2.30 s 60I(8)(c) …. 2.30 s 60I(8)(d) …. 2.30 s 60I(9) …. 2.28, 2.29, 2.31, 2.33, 2.41 s 60I(9)(d) …. 2.33 s 60I(10) …. 2.31 s 60J(1) …. 2.31 s 60J(2) …. 2.31 s 60J(4) …. 2.31 s 60K …. 3.54 s 61 …. 4.53 s 61(4)(b) …. 4.55 s 61B …. 8.19, 8.21, 8.22 s 61C …. 4.53, 11.1, 11.29 s 61C …. 8.24–8.26, 8.31, 8.39, 8.62 s 61C(1) …. 8.24, 8.28, 9.127 s 61C(2) …. 8.24 s 61C(3) …. 8.25 s 61DA …. 8.35, 8.39, 8.45, 8.53, 8.56, 8.62, 8.104, 9.3, 9.5, 9.21, 9.24, 9.60 s 61DA(2) …. 8.62, 9.6 s 61DA(3) …. 8.62, 8.100 s 61DA(4) …. 8.62, 9.6 s 61F …. 9.81 s 62 …. 8.95 s 62G …. 2.44, 8.90, 8.92, 9.44 s 62G(1) …. 8.90 s 62G(2) …. 8.90, 9.44 s 62G(3A) …. 9.44 s 62G(8) …. 8.90 s 63 …. 4.41, 6.16, 6.94, 6.99 s 63B …. 8.40 s 63C …. 8.40, 11.90 s 63C(1A) …. 2.62 s 63CAA …. 8.40 s 63D …. 8.40 s 63DA …. 2.53, 8.40 s 63DA(1A) …. 2.53 s 63DA(2) …. 2.17, 2.52, 2.53

s 63DA(5) …. 2.52 s 63DB(2) …. 8.40 s 63DB(3) …. 8.40 s 63DB(4) …. 8.40 s 63DB(5) …. 8.40 s 63C(1A) …. 8.41 s 63E …. 8.21, 8.40 s 63F …. 8.31 s 63H(2) …. 8.64 s 64 …. 4.57, 6.105, 8.108, 9.46 s 64(1) …. 8.88 s 64(1)(a) …. 8.64, 9.33 s 64(1)(b) …. 9.43 s 64(1)(va) …. 9.29 s 64(1B) …. 2.57 s 64(4A) …. 8.45 s 64(5) …. 8.95 s 64B …. 8.94, 8.108 s 64B(1) …. 7.12, 8.45, 8.67 s 64B(1)(a) …. 8.98 s 64B(2) …. 2.31, 8.45, 8.50 s 64B(2)(a) …. 8.47 s 64B(2)(c) …. 8.45 s 64B(2)(i) …. 8.45, 9.128 s 64B(3) …. 8.45 s 64B(4) …. 8.45 s 64C …. 7.49, 8.48, 8.51, 8.53, 8.94, 9.55 s 64D …. 3.3, 8.28, 8.41, 8.129 s 64D(3) …. 8.41 s 64DAA(5) …. 9.23 s 64DAA(5)(e) …. 9.23 s 65 …. 6.126, 8.76 s 65B …. 8.53 s 65C …. 7.56, 8.42, 8.53 s 65C(ba) …. 8.42, 9.55, 9.93 s 65C(c) …. 7.49, 7.56, 9.55 s 65D …. 8.53, 8.104, 9.128, 14.62 s 65D(1) …. 4.121, 8.35, 8.45, 8.53

s 65D(2) …. 8.104, 8.106 s 65DA(2) …. 8.56 s 65DAA …. 8.63, 8.100, 9.3, 9.4, 9.9, 9.19, 9.21, 9.49, 9.121, 14.62 s 65DAA(1) …. 8.63 s 65DAA(1)(b) …. 8.63, 9.23 s 65DAA(2) …. 8.63 s 65DAA(2)(d) …. 9.23 s 65DAA(3) …. 8.63, 9.22 s 65DAA(5) …. 8.63 s 65DAA(5)(a)–(d) …. 9.23 s 65DAB …. 2.62, 8.35, 8.41, 8.53, 8.104 s 65DAC …. 8.26, 8.39, 8.101, 9.60 s 65DAC(1) …. 8.26 s 65DAC(2) …. 8.26, 8.27, 9.72, 9.127 s 65DAC(3) …. 8.26, 9.72, 9.127 s 65DAE …. 8.26 s 65E …. 3.52, 8.4, 9.128 s 65F …. 2.57, 8.4 s 65F(2) …. 2.57, 8.53 s 65F(2)(a) …. 2.55 s 65F(2)(b) …. 2.57 s 65F(2)(c) …. 2.57 s 65G …. 8.48, 8.94 s 65G(1) …. 8.48 s 65G(1A) …. 8.48 s 65G(2) …. 8.48 s 65H(1) …. 8.53 s 65H(2) …. 8.53 s 65H(3) …. 8.53 s 65L …. 2.45, 8.95 s 65L(1) …. 8.54 s 65L(2) …. 8.54, 8.64 s 65LA …. 8.54 s 65M …. 8.142 s 65N …. 8.142 s 65NA …. 8.142 s 65Q …. 8.142 s 65Q(1)(c) …. 8.142

s 65Q(1)(d) …. 8.142 s 65Q(2) …. 8.142 s 65Q(3) …. 8.142 ss 65R–65W …. 8.142 s 65X(1) …. 8.143 s 65Y …. 8.143 s 65Y(2) …. 8.144 s 65Z …. 8.143 s 65Z(2) …. 8.144 s 65ZA …. 8.145 s 65ZB …. 8.145 s 66(2) …. 6.91 s 66(2)(a) …. 6.91 s 66(3) …. 6.91 s 66B …. 11.11, 11.13, 11.36, s 66B(1) …. 11.8 s 66B(2)(a) …. 11.8 s 66B(2)(b) …. 11.8, 11.13 s 66C …. 8.28, 11.7, 11.13, 11.34, 11.36, 11.62, 11.75 s 66C(1) …. 11.9 s 66C(2) …. 11.9 s 66C(2)(b) …. 11.9 s 66C(2)(c) …. 11.9 s 66D …. 11.7, 11.13, 11.36 s 66D(1) …. 11.33 s 66D(2) …. 11.33 s 66E …. 11.4, 14.62 s 66E(1)(d) …. 11.25 s 66E(3) …. 11.4 s 66E(5) …. 11.14 s 66F …. 8.42, 11.25 s 66F(1) …. 11.6 s 66F(1)(ba) …. 8.42 s 66G …. 11.24, 11.25, 11.37, 14.62 s 66H …. 11.10, 11.13, 11.24–11.26, 11.28, 11.30 s 66H(1) …. 11.24 s 66H(2) …. 11.24 s 66J …. 11.10, 11.24

s 66J(l)(b) …. 11.11 s 66J(1)(c) …. 11.12 s 66J(2)(a)(i) …. 11.11 s 66J(2)(a)(iii) …. 11.11 s 66J(2)(b) …. 11.11 s 66J(3) …. 11.12 s 66J(3)(b)(ii) …. 11.12, 11.26 s 66K …. 11.10, 11.13, 11.36 s 66K(1)(b)–(e) …. 11.13 s 66K(1)(e) …. 11.25, 11.29 s 66K(2) …. 11.13 s 66K(3) …. 11.13 s 66K(4) …. 11.13 s 66K(4)(a) …. 11.26 s 66K(5) …. 11.14 s 66L …. 8.28, 11.3, 11.6, 11.12, 11.18–11.20, 11.24–11.26, 11.28–11.30, 11.33, 11.38, 11.78, 14.62 s 66L(1) …. 11.18 s 66L(1)(a) …. 11.19 s 66L(1)(b) …. 11.19 s 66L(1)(d) …. 11.19 s 66L(3) …. 11.16, 11.31 s 66M …. 11.34, 11.35 s 66M(1) …. 11.35 s 66M(2) …. 11.35 s 66M(3)(a) …. 11.34 s 66M(3)(b) …. 11.34 s 66M(3)(c) …. 11.34 s 66M(3)(d) …. 11.34 s 66M(3)(e) …. 11.34 s 66N …. 11.36, 11.37 s 66N(a) …. 11.36 s 66N(b) …. 11.36 s 66P …. 11.14 s 66P(1) …. 10.62 s 66P(2) …. 11.15 s 66R …. 11.14, 11.15 s 66S(2) …. 11.15

s 66T …. 11.16 s 66U(1) …. 11.16 s 66U(2) …. 11.16 s 66U(3) …. 11.16 s 66U(4) …. 11.16 s 66U(5) …. 11.16 s 66V(1) …. 11.16 s 66V(2) …. 11.16 s 66VA(1) …. 11.18 s 66VA(2) …. 11.18 s 66VA(3) …. 11.18 s 66W …. 6.102 s 66W(5) …. 7.13 s 66X …. 11.66 s 67B …. 10.62, 11.5 s 67BA …. 3.54 s 67C(1)(a) …. 10.62 s 67C(1)(b) …. 10.62 s 67C(1)(c) …. 10.62 s 67C(2) …. 10.62 s 67C(3) …. 10.62, 10.63 s 67D(1) …. 10.62 s 67D(2)(a)–(j) …. 10.62 s 67E …. 10.62 s 67F …. 8.42, 10.62 s 67G …. 10.62 s 67J(1) …. 8.146 s 67J(2) …. 8.146 s 67K …. 8.42, 8.147 s 67K(1)(ca) …. 8.42 s 67L …. 8.64, 8.147 s 67M …. 8.147 s 67M(5) …. 8.147 s 67N …. 8.147 s 67N(7) …. 8.147 s 67N(9) …. 8.147 s 67P …. 8.147 s 67Q …. 8.148

ss 67Q–67Y …. 8.148 s 67T …. 8.42, 8.148 s 67T(ca) …. 8.42 s 67U …. 8.148 s 67V …. 8.64, 8.148 s 67Z …. 3.54 s 67Z(2) …. 3.54 s 67Z(3) …. 3.39 s 67ZA …. 3.39 s 67ZA(1) …. 3.38 s 67ZA(2) …. 3.38, 3.39 s 67ZA(3) …. 3.39 s 67ZA(4) …. 3.38 s 67ZA(6) …. 3.39 s 67ZB …. 3.39, 3.40 s 67ZB(2) …. 3.39 s 67ZB(3) …. 3.39 s 67ZB(4) …. 3.40 s 67ZBA …. 3.54 s 67ZBA(2) …. 3.54 s 67ZBB …. 3.54 s 67ZC …. 1.64, 4.66–4.68, 8.33, 8.34, 8.42, 8.88, 8.94, 8.116, 8.117, 8.124, 8.125 s 67ZC(1) …. 4.57, 4.66, 8.88, 8.116 s 67ZC(2) …. 8.64, 8.116 s 67ZD …. 8.145 s 67ZH …. 4.67 s 68B …. 3.10, 3.17, 3.19, 3.23, 3.54, 8.42, 9.128 s 68B(1) …. 3.17, 9.128 s 68B(1)(a) …. 3.17 s 68B(1)(b) …. 3.17, 8.94 s 68B(3) …. 3.17 s 68C …. 3.19 s 68C(1) …. 3.17 s 68C(2) …. 3.17 s 68C(3) …. 3.17 s 68F …. 8.107 s 68F(2) …. 8.5, 9.29 s 68L …. 7.10, 8.73, 8.76, 9.44

s 68L(1) …. 8.73 s 68L(2) …. 8.73, 8.76 s 68L(3) …. 8.73 s 68L(4) …. 8.73 s 68LA …. 8.82 s 68LA(2) …. 8.82 s 68LA(3) …. 8.82 s 68LA(4) …. 8.82 s 68LA(5) …. 8.82 s 68LA(5)(b) …. 8.83 s 68LA(6)–(8) …. 8.82 s 68M …. 8.84, 8.89 s 68N …. 3.24, 8.111 s 68P …. 3.24, 8.112, 8.115 s 68P(1) …. 8.110 s 68P(2)(b) …. 8.112 s 68P(2)(c) …. 8.112 s 68P(2)(d) …. 8.112 s 68P(3) …. 8.112 s 68P(4) …. 8.112 s 68Q …. 8.112 s 68Q(1) …. 3.24 s 68Q(2) …. 3.24 s 68R …. 3.24, 3.25, 8.113–8.115 s 68R(1) …. 8.113 s 68R(2) …. 8.114 s 68R(3) …. 3.24 s 68R(3)(a) …. 8.114 s 68R(3)(b) …. 8.114, 8.115 s 68R(4) …. 3.24, 8.114 s 68R(5) …. 8.114 s 68R(5)(b) …. 8.114 s 68R(5)(c) …. 3.25 s 68S(1)(e) …. 8.64, 8.114 s 69B …. 8.125 s 69C …. 8.42 s 69C(1) …. 8.42, 8.42 s 69C(2) …. 8.42

s 69C(2)(c) …. 9.93 s 69E …. 8.44, 11.64 s 69E(2) …. 8.44 s 69H …. 4.111 s 69P …. 7.8 s 69Q …. 7.8 s 69R …. 2.33, 7.8, 7.19, 7.46 s 69S …. 7.8 s 69S(1) …. 7.8 s 69S(1A) …. 7.8 s 69T …. 2.33, 7.8 s 69U(1) …. 7.8 s 69U(2) …. 7.8 s 69V …. 7.10, 7.11 s 69VA …. 7.9–7.11, 7.19, 7.23, 7.49, 7.52–7.54, 11.68 s 69W …. 7.10 s 69W(2) …. 7.10 s 69W(3) …. 7.10 s 69W(5) …. 7.10 s 69X …. 7.10 s 69Y(1) …. 7.13 s 69Y(2) …. 7.13 s 69Z(2) …. 7.14 s 69ZA …. 7.14 s 69ZB …. 7.10 s 69ZC …. 4.47 s 69ZC(1) …. 8.116 s 69ZF …. 11.2 s 69ZH(2) …. 8.116 s 69ZJ …. 8.16 s 69ZK …. 3.17, 3.47, 3.49, 3.52, 3.53, 4.60, 8.16 s 69ZK(1)(a) …. 3.47 s 69ZK(1)(b) …. 3.47, 8.16 s 69ZM …. 8.69 s 69ZN …. 8.69 s 69ZQ …. 8.69 s 69ZT …. 8.69 s 69ZU …. 8.90

s 69ZV …. 8.69, 9.113 s 69ZX …. 8.71 s 69ZX(4) …. 8.64, 8.66 s 69ZW …. 3.52, 3.54 s 70C …. 8.64 s 70NAA(2) …. 8.130 s 70NAC …. 8.129 s 70NAE …. 8.132 s 70NAE(1) …. 8.132 s 70NAE(2) …. 8.132 s 70NAE(4) …. 8.132 s 70NAE(5) …. 8.132 s 70NAE(6) …. 8.132 s 70NAE(7) …. 8.132 s 70NAF(1) …. 8.140 s 70NAF(2) …. 8.140 s 70NAF(3) …. 8.140 s 70NBA …. 8.130, 8.134 s 70NBA(2) …. 8.64, 8.130 s 70NBA(3) …. 8.130 s 70NCA …. 8.46 s 70NCB …. 8.133 s 70NCB(2) …. 8.133 s 70NDB …. 8.134 s 70NDB(2) …. 8.64 s 70NDC …. 8.134 s 70NEA(2) …. 8.135 s 70NEA(3) …. 8.135 s 70NEA(4) …. 8.135 s 70NEB …. 8.135, 8.136 s 70NEB(1)(c) …. 8.135, 8.136 s 70NEB(2) …. 8.135 s 70NEB(4) …. 8.135 s 70NEB(5) …. 8.64, 8.135 s 70NEB(6) …. 8.135 s 70NEB(7) …. 8.135 s 70NFA(2) …. 8.136 s 70NFA(3) …. 8.136

s 70NFA(4) …. 8.136 s 70NFB …. 8.136 s 70NFB(1) …. 8.136, 8.138 s 70NFB(2) …. 8.136, 8.138 s 70NFB(4) …. 8.137 s 70NFB(5) …. 8.137 s 70NFC …. 8.136 s 70NFD …. 8.136 s 70NFE …. 8.136 s 70NFF …. 8.136 s 70NFG(2) …. 8.138 s 70NFG(3) …. 8.138 s 70NJ(6A) …. 8.137 s 71 …. 5.26, 6.106, 12.30 s 71A …. 15.42, 15.51 s 72 …. 4.15, 10.3, 10.20–10.22, 10.24, 10.25, 10.27, 10.36, 10.40, 10.47, 10.49, 11.19, 14.67 s 72(1) …. 10.21, 10.22, 10.24, 10.25, 10.34, 10.56 s 72(1)(a) …. 10.22 s 72(1)(b) …. 10.22 s 72(1)(c) …. 10.22 s 72(2) …. 10.21 s 74 …. 4.121, 10.3, 10.20–10.22, 10.25, 10.27, 10.36, 10.40, 14.62, 14.67 s 74(1) …. 10.25, 10.34 s 74(2) …. 10.25 s 74(2)–(8) …. 10.25 s 74(3) …. 10.25 s 74(4) …. 10.25 s 74(5)–(7) …. 10.25 s 75 …. 10.36 s 75(2) …. 1.79, 10.3, 10.20, 10.22–10.27, 10.30, 10.32, 10.34, 10.36, 10.37, 10.40, 10.45, 10.49, 10.56, 12.28, 13.1, 13.12, 13.13, 13.15, 13.21, 13.26, 13.28, 13.31, 13.39, 14.10, 14.34, 14.38, 14.40, 14.43, 14.44, 14.48, 14.50, 14.53, 14.54, 14.56, 14.58–14.61, 14.64–14.68, 15.4, 15.63, 15.74 s 75(2)(a) …. 10.27 s 75(2)(b) …. 10.27, 10.28, 11.82, 13.22, 14.10, 15.4 s 75(2)(c) …. 10.26 s 75(2)(d) …. 10.30 s 75(2)(e) …. 10.30, 14.15

s 75(2)(f) …. 10.34 s 75(2)(f)(ii) …. 10.28 s 75(2)(g) …. 10.23, 10.26, 10.52, 14.61 s 75(2)(h) …. 10.27 s 75(2)(ha) …. 10.32, 15.63, 15.64 s 75(2)(j) …. 10.26 s 75(2)(k) …. 10.26, 14.59 s 75(2)(l) …. 10.26 s 75(2)(m) …. 10.31 s 75(2)(n) …. 10.29 s 75(2)(na) …. 10.30, 14.63 s 75(2)(o) …. 10.33, 13.13, 13.28, 13.29, 14.13, 14.34–14.36, 14.39, 14.44, 14.65 s 75(2)(p) …. 10.25 s 75(3) …. 10.18, 10.35, 10.50, 10.58 s 77 …. 10.19, 10.58 s 77A …. 10.36, 10.58, 11.14, 14.66 s 78 …. 4.29, 4.88, 12.30, 13.7, 13.9–13.11, 15.21, 15.23, 15.50 s 78(1) …. 13.9 s 78(3) …. 13.11 s 79 …. 4.29, 4.47, 4.86, 4.98, 4.121, 9.24, 10.29, 10.36, 12.23, 12.30, 12.33, 12.34, 12.39, 13.3, 13.5, 13.9, 13.10, 13.12, 13.13, 13.16, 13.19, 13.21, 13.22, 13.25, 13.29, 13.30, 13.36, 13.37, 14.1, 14.8, 14.13, 14.19–14.21, 14.31, 14.34, 14.35, 14.41, 14.42, 14.59, 14.62, 14.66–14.68, 15.7, 15.8, 15.10, 15.16, 15.18, 15.19, 15.23–15.25, 15.28, 15.31, 15.34, 15.50, 15.54, 15.55, 15.59, 15.61, 15.62, 15.65, 15.66, 15.68–15.70, 15.74, 15.75 s 79(1) …. 12.33, 13.1, 13.12, 13.13, 13.19, 14.9, 14.65, 14.66, 15.38 s 79(1)(a) …. 14.66 s 79(1)(b) …. 14.66, 15.63 s 79(1)(c) …. 14.66 s 79(1)(d) …. 12.42, 14.66 s 79(2) …. 13.1, 13.14, 13.16, 13.17, 13.35–13.38, 14.44, 14.65, 15.59, 15.61, 15.64 s 79(4) …. 4.125, 12.4, 12.27, 12.28, 13.1, 13.16, 13.17, 13.29, 13.36, 13.38, 14.1, 14.4, 14.40, 14.42, 14.49, 14.58, 14.59, 15.27 s 79(4)(a) …. 13.14, 14.9, 14.11, 14.24, 14.41 s 79(4)(a)–(b) …. 14.7, 14.9, 14.13 s 79(4)(a)–(c) …. 13.13, 13.39, 14.7, 14.24, 14.34, 14.45, 14.56 s 79(4)(b) …. 13.14, 14.9, 14.12–14.14, 14.41 s 79(4)(c) …. 13.14, 14.9, 14.12–14.14, 14.23, 14.24, 14.38, 14.39, 14.41 s 79(4)(d) …. 13.14, 14.56, 14.57

s 79(4)(d)–(g) …. 13.39, 14.7, 14.56, 14.64 s 79(4)(e) …. 10.25, 10.32, 13.14, 13.39, 14.11, 14.13, 14.34, 14.56, 14.58, 14.67 s 79(4)(e)–(g) …. 13.13 s 79(4)(f) …. 13.14, 14.56, 14.62 s 79(4)(g) …. 13.14, 14.56, 14.63 s 79(5)–(7) …. 13.13, 15.4, 15.27 s 79(7)(b) …. 15.27 s 79(8) …. 4.88, 12.35, 12.36, 14.44 s 79(8)(b) …. 12.36 s 79(9) …. 2.49 s 79(9)(b) …. 2.49 s 79(9)(c) …. 2.49 s 79(11) …. 15.61 s 79(12) …. 15.61 s 79(13) …. 15.61 s 79A …. 2.23, 13.3, 15.10, 15.62, 15.68, 15.70, 15.71, 15.74 s 79A(1) …. 15.69, 15.72 s 79A(1)(a) …. 15.70, 15.71 s 79A(1)(b) …. 15.72 s 79A(1)(c) …. 15.73 s 79A(1)(d) …. 15.74 s 79A(1A) …. 15.75 s 79A(1AA) …. 15.74 s 80 …. 4.87, 13.10, 14.66 s 80(1) …. 10.36, 10.62, 13.12 s 80(1)(a) …. 10.36, 14.66 s 80(1)(b) …. 10.36 s 80(1)(ba) …. 10.36, 14.66 s 80(1)(h) …. 10.19 s 80(1)(j) …. 10.25, 15.37 s 80(2) …. 10.37 s 81 …. 10.3, 10.18, 10.36, 13.2, 13.7, 13.8 s 82 …. 10.38 s 82(4) …. 10.31 s 83 …. 10.36, 10.37, 10.59, 11.15, 15.68 s 83(1) …. 10.37 s 83(2) …. 10.37 s 83(2)(ba) …. 10.37

s 83(2)(c) …. 10.37 s 83(4) …. 10.37 s 83(5) …. 10.37 s 83(7) …. 10.37 s 84(5) …. 15.46 s 85 …. 4.47, 15.23, 15.28–15.32, 15.34 s 85(1) …. 15.34 s 85(3) …. 15.30, 15.32, 15.34 s 85A …. 15.28 s 85A(1) …. 15.27 s 86 …. 15.40 s 86(1A) …. 15.40 s 87 …. 15.40 s 87 …. 4.85, 13.5 s 87(1A) …. 15.40 s 87(4A) …. 10.18, 10.35 s 90 …. 4.46 s 90AA …. 15.18, 15.24 s 90AB …. 15.18 s 90AC …. 15.18, 15.20, 15.22, 15.24 s 90AD …. 15.18 s 90AE …. 15.21, 15.23, 15.24 s 90AE(1) …. 15.19, 15.24 s 90AE(1)(d) …. 15.19, 15.24 s 90AE(2) …. 4.47, 15.19, 15.21, 15.24 s 90AE(2)(a) …. 15.19, 15.24 s 90AE(2)(b) …. 15.19, 15.23, 15.24 s 90AE(3) …. 10.32, 15.20, 15.21, 15.24 s 90AE(3)(a) …. 15.24 s 90AE(3)(c) …. 15.20, 15.24 s 90AE(3)(d) …. 15.24 s 90AE(3)(e) …. 15.24 s 90AE(4) …. 15.20, 15.24 s 90AE(4)(f) …. 15.20 s 90AE(4)(g) …. 15.20 s 90AF …. 15.22–15.24 s 90AF(1) …. 15.22 s 90AF(1)(a) …. 15.22

s 90AF(1)(b) …. 15.22 s 90AF(2) …. 4.47, 15.22, 15.24 s 90AF(2)(a) …. 15.22, 15.24 s 90AF(2)(b) …. 15.22, 15.24 s 90AF(3) …. 15.22 s 90AF(3)(a) …. 15.25 s 90AF(3)(c) …. 15.25 s 90AF(4) …. 15.22 s 90AF(4)(e) …. 15.22 s 90AF(4)(f) …. 15.22 s 90AF(4)(g) …. 15.22 s 90AG …. 15.22 s 90AH …. 15.22 s 90AJ …. 15.22 s 90AK …. 15.21–15.23 ss 90A–90Q …. 15.42 s 90B …. 15.43–15.45, 15.48, 15.56 ss 90B–90D …. 15.42 s 90B(1)(a) …. 15.45 s 90B(1)(aa) …. 15.45 s 90B(2)(a) …. 15.45, 15.48 s 90B(2)(b) …. 15.45 s 90B(3)(a) …. 19.46 s 90B(4) …. 15.45 s 90C …. 15.43–15.45, 15.48, 15.49, 15.54, 15.58 s 90C(1) …. 15.47 s 90C(1)(a) …. 15.45 s 90C(1)(aa) …. 15.45 s 90C(2)(a) …. 15.45, 15.48 s 90C(2)(b) …. 15.45 s 90C(2A) …. 15.43 s 90C(3)(a) …. 15.46 s 90C(4) …. 15.45 s 90D …. 15.43–15.45, 15.48, 15.49, 15.54 s 90D(1) …. 15.47 s 90D(1)(a) …. 15.45 s 90D(1)(aa) …. 15.45 s 90D(2)(a) …. 15.45, 15.48

s 90D(2)(b) …. 15.45 s 90D(3)(a) …. 15.46 s 90D(4) …. 15.45 s 90DA …. 15.47, 15.48 s 90DA(1)–(5) …. 15.48 s 90DA(1A) …. 15.48 s 90DB(1) …. 15.48 s 90DB(2) …. 15.46 s 90E …. 11.15, 15.46, 15.47, 15.60 s 90F …. 11.14, 15.47 s 90G …. 15.42–15.44, 15.51–15.56, 15.58–15.60 s 90G(1) …. 15.55, 15.59, 15.60 s 90G(1)(b) …. 15.56, 15.58 s 90G(1A) …. 15.54–15.56, 15.58, 15.59 s 90G(1A)(c) …. 15.56, 15.58 s 90G(1B) …. 15.54, 15.56 s 90G(5) …. 15.60 s 90GA …. 15.60 s 90GA(2) …. 15.60 s 90GB …. 15.60 s 90H …. 15.47, 15.60 s 90HA …. 15.60 s 90J(2) …. 15.45 s 90K …. 13.5, 15.50 s 90K(1) …. 15.50 s 90K(1)(a) …. 15.50 s 90K(1)(aa) …. 15.50, 15.66 s 90K(1)(b) …. 15.50 s 90K(1)(c) …. 15.50 s 90K(1)(d) …. 15.50 s 90K(1)(e) …. 15.50 s 90K(1)(f) …. 15.50 s 90K(1)(g) …. 15.50 s 90K(1A) …. 15.50 s 90K(2) …. 15.50 s 90K(3) …. 15.50 s 90KA …. 13.5, 15.44, 15.49, 15.50 s 90MA …. 12.22

s 90MC …. 15.10 s 90MD …. 15.6 s 90MH …. 15.12 s 90MH(1) …. 15.46 s 90MH(2)–(5) …. 15.46 s 90MHA …. 15.12 s 90MJ …. 15.12 s 90ML …. 15.12 s 90MN …. 15.12, 15.46 s 90MO …. 15.12 s 90MP …. 15.48 s 90MR …. 15.8 s 90MS …. 15.7 s 90MS(1) …. 15.10 s 90MT …. 12.22, 15.7 s 90MT(1) …. 15.8 s 90MT(1)(a) …. 15.8 s 90MT(1)(b) …. 15.8 s 90MU …. 15.7, 15.9 s 90MU(1) …. 15.9 s 90MU(2) …. 15.9 s 90MZD …. 15.8 s 90RA …. 5.92, 10.55 s 90RA(2)(a) …. 6.124 s 90RC …. 5.93, 10.55, 12.21 s 90RC(2) …. 6.113 s 90RD …. 5.98, 5.101, 5.115 s 90RD(1) …. 5.115 s 90RD(2) …. 5.115 s 90RD(2)(a) …. 5.97, 6.122 s 90RE(1) …. 5.115 s 90RG …. 5.115, 12.45 s 90RH(1) …. 5.115 s 90RH(2) …. 5.115 s 90SA(1) …. 15.51 s 90SB …. 5.114, 5.117, 6.116, 10.52, 12.44 s 90SB(a) …. 5.97, 5.106, 5.115, 6.122, 12.44 s 90SD …. 4.112, 10.55, 12.45

s 90SD(1A) …. 12.45 s 90SE …. 5.93, 5.115, 5.117, 10.56, 10.58, 10.62, 12.22, 13.6, 14.67 s 90SE(1) …. 10.52, 10.56 s 90SF …. 10.47, 10.62, 14.66 s 90SF(1) …. 10.53, 14.67 s 90SF(2) …. 10.56 s 90SF(3) …. 10.56, 10.59, 12.28, 13.12, 13.13, 13.21, 13.29, 13.39, 14.34, 14.50, 14.58, 14.60, 14.64, 14.66, 14.67, 15.63 s 90SF(3)(b) …. 13.22 s 90SF(3)(g) …. 10.52, 14.61 s 90SF(3)(i) …. 15.63 s 90SF(3)(k) …. 14.59 s 90SF(3)(l) …. 10.26 s 90SF(3)(o) …. 10.57 s 90SF(3)(p) …. 10.57 s 90SF(3)(r) …. 13.13, 13.28, 13.29, 14.13, 14.34, 14.36, 14.65 s 90SF(3)(s) …. 10.57 s 90SF(3)(t) …. 10.57 s 90SF(4) …. 10.58 s 90SG …. 5.93, 5.115, 5.117, 10.58, 12.22, 13.6 s 90SH …. 10.58, 14.66 s 90SI …. 10.59 s 90SI(3) …. 10.59 s 90SI(3)(c) …. 10.59 s 90SI(3)(d) …. 10.59 s 90SI(10) …. 10.59 s 90SJ(1) …. 10.60 s 90SJ(2) …. 10.60 s 90SK …. 12.45 s 90SK(1) …. 12.45 s 90SK(1)(b) …. 12.45 s 90SK(1A) …. 12.45 s 90SK(2) …. 12.45 s 90SL …. 5.115, 5.117, 13.6, 13.9–13.11, 15.50 s 90SM …. 5.93, 5.115, 5.117, 12.22, 12.23, 12.28, 13.1, 13.6, 13.9, 13.10, 13.12, 13.19, 13.21, 13.22, 14.1, 14.34, 14.67, 15.7, 15.8, 15.10, 15.16, 15.19, 15.24, 15.50, 15.62, 15.69 s 90SM(1) …. 13.1, 13.12, 13.19, 14.66 s 90SM(1)(b) …. 14.66, 15.63

s 90SM(1)(d) …. 14.66 s 90SM(3) …. 5.102, 13.1, 13.35, 14.44, 14.65, 15.59 s 90SM(4) …. 6.116, 12.4, 12.27, 13.29, 14.1, 14.58 s 90SM(4)(a) …. 5.115, 12.44, 12.45, 14.11, 14.24 s 90SM(4)(a)–(b) …. 14.7, 14.9, 14.13 s 90SM(4)(a)–(c) …. 13.13, 13.39, 14.7, 14.24, 14.34, 14.45, 14.56 s 90SM(4)(b) …. 5.115, 12.44, 12.45, 14.12–14.14 s 90SM(4)(c) …. 5.115, 12.44, 12.45, 14.9, 14.12–14.14, 14.23, 14.24 s 90SM(4)(d) …. 14.57 s 90SM(4)(d)–(g) …. 13.39, 14.7, 14.56 s 90SM(4)(e) …. 13.39, 14.13, 14.34, 14.58 s 90SM(4)(e)–(g) …. 13.13 s 90SM(4)(f) …. 14.62 s 90SM(4)(g) …. 14.63 s 90SM(5)–(7) …. 13.13, 15.4, 15.27 s 90SM(7)(b) …. 15.27 s 90SM(8) …. 12.36 s 90SM(10)(a) …. 14.66 s 90SM(10)(c) …. 14.66 s 90SN …. 15.10, 15.62, 15.68, 15.69 s 90SN(1)(a) …. 15.71 s 90SN(1)(b) …. 15.72 s 90SN(1)(c) …. 15.73 s 90SN(1)(d) …. 15.74 s 90SN(2) …. 15.75 s 90SN(3) …. 15.74 s 90SS …. 5.93 s 90SS(1) …. 13.12, 14.66 s 90SS(1)(a) …. 14.66 s 90SS(1)(c) …. 14.66 s 90SS(1)(j) …. 15.37 s 90SS(1)(k) …. 3.10, 15.13–15.15 s 90SS(5) …. 3.10 s 90ST …. 13.2, 13.7, 13.8 s 90TA …. 12.22, 15.18 ss 90UA–90UM …. 12.22 ss 90UA–90UN …. 10.57 ss 90UA–90WA …. 15.42

s 90UB …. 15.43, 15.48 s 90UB(1)(a) …. 15.45, 15.48 s 90UB(1)(b) …. 15.45 s 90UB(2)(a) …. 15.45 s 90UB(2)(b) …. 15.45 s 90UB(3) …. 15.46 s 90UB(4) …. 15.45 s 90UC …. 15.43, 15.45, 15.48 s 90UC(1)(a) …. 15.45, 15.48 s 90UC(1)(b) …. 15.45 s 90UC(2)(a) …. 15.45 s 90UC(2)(b) …. 15.45 s 90UC(3) …. 15.46 s 90UC(4) …. 15.45 s 90UD …. 15.43, 15.48 s 90UD(1)(a) …. 15.45, 15.48 s 90UD(1)(b) …. 15.45 s 90UD(2)(a) …. 15.45 s 90UD(2)(b) …. 15.45 s 90UD(3) …. 15.46 s 90UD(4) …. 15.45 s 90UE …. 15.42 s 90UF …. 6.114, 15.47, 15.48 s 90UF(1) …. 15.48 s 90UF(1)–(5) …. 15.48 s 90UFA …. 15.47 s 90UH …. 15.46, 15.47, 15.60 s 90UI …. 15.47 s 90UJ …. 15.42, 15.43, 15.51–15.53, 15.56, 15.58, 15.60 s 90UJ(1) …. 15.60 s 90UJ(1A) …. 15.56, 15.58 s 90UJ(3) …. 15.45 s 90UJA …. 15.60 s 90UJA(2) …. 15.60 s 90UJA(5) …. 15.60 s 90UJB …. 15.30 s 90UK …. 15.47, 15.60 s 90UKA …. 15.60

s 90UL(2) …. 15.45 s 90UM …. 15.50 s 90UM(1) …. 15.50 s 90UM(1)(a) …. 15.50 s 90UM(1)(b) …. 15.50, 15.66 s 90UM(1)(d) …. 15.50 s 90UM(1)(e) …. 15.50 s 90UM(1)(f) …. 15.50 s 90UM(1)(g) …. 15.50 s 90UM(1)(h) …. 15.50 s 90UM(1)(i) …. 15.50 s 90UM(1)(k) …. 15.50 s 90UM(2) …. 15.50 s 90UM(4) …. 15.50 s 90UN …. 15.49 s 91(1) …. 15.24 s 91B …. 3.42, 3.47, 3.48 s 91B(2)(b) …. 3.47 s 92 …. 15.16 s 92A …. 3.41 s 92A(2)(d) …. 3.41 s 92A(3) …. 3.41 s 93 …. 6.93, 6.94, 6.96 s 93A …. 4.120 s 94 …. 4.127, 4.128, 6.18, 6.96, 6.103 s 94(3) …. 6.18 s 94(4) …. 6.18 s 94AAA …. 4.127, 4.128 s 94AAA(3) …. 4.127 s 94AAA(6) …. 4.127 s 94AAA(12) …. 4.127 s 94AA …. 4.128 s 94A(1) …. 4.128 s 94A(3) …. 4.128 s 95 …. 4.129 s 96 …. 4.127 s 96(4)(a) …. 4.127 s 96(4)(b) …. 4.127

s 97 …. 4.32, 4.33 s 97(1) …. 4.32 s 97(3) …. 1.46 s 97(4) …. 4.32 s 98A …. 6.8 s 98A(1) …. 6.8 s 98A(2) …. 6.8 s 98A(2A) …. 6.8 s 98A(3) …. 6.8 s 100A …. 8.69 s 102A …. 8.89, 9.114, 9.115 s 102A(3) …. 9.114, 9.115 s 102A(4) …. 9.114 s 102A(5) …. 9.114 s 104 …. 4.108, 6.104, 12.30, 12.38, 13.5 s 104(3) …. 5.71, 12.38 s 104(4) …. 12.38 s 104(5) …. 5.71, 12.38 s 104(8) …. 12.38 s 105 …. 10.39 s 106A …. 2.23, 3.44 s 106B …. 4.47, 4.87, 15.15, 15.23, 15.24, 15.28–15.32, 15.34 s 106B(1) …. 15.31 s 106B(3) …. 15.30, 15.32 s 111B …. 8.149, 8.153 s 111B(1B) …. 8.158 s 111B(4) …. 8.153 s 111B(4)(a) …. 8.153 s 112AD …. 3.20, 8.141 s 112AP …. 3.20, 8.141 s 112AP(1) …. 8.141 s 112AP(1)(b) …. 8.141 s 112AP(4) …. 8.141 s 112AP(6) …. 8.141 s 113 …. 5.115, 6.4, 6.12, 6.15, 6.20, 6.43, 6.93, 6.95, 6.96, 6.107, 6.108 s 114 …. 3.8, 3.14, 3.17, 3.23, 15.13, 15.14, 15.18, 15.22–15.25, 15.29 s 114(1) …. 3.8, 3.9, 3.14, 3.15, 15.13, 15.14, 15.22, 15.25 s 114(1)(a) …. 3.8, 3.14

s 114(1)(b) …. 3.15 s 114(1)(c) …. 3.15 s 114(1)(e) …. 15.14, 15.18 s 114(1)(f) …. 15.14 s 114(2A) …. 3.8, 3.10, 5.93, 3.15, 15.13–15.15 s 114(2A)(b) …. 3.15 s 114(3) …. 3.10, 5.93, 15.13–15.15, 15.22 s 114AA …. 3.17, 3.19 s 114AA(1) …. 3.19 s 114AB …. 3.23 s 114AB(1) …. 3.23 s 114AB(2) …. 3.23 s 117 …. 8.76, 8.132 s 117(3) …. 8.76 s 117(4A) …. 3.47 s 117(5) …. 8.76 s 117AB …. 1.77 s 119 …. 4.69, 11.67 s 120 …. 4.69, 11.67 s 140 …. 5.99 ss 188–193 …. 7.6 Family Law Amendment Act 1976 …. 4.40, 4.76 Family Law Amendment Act 1983 …. 4.43, 4.87, 6.7, 12.32 s 37 …. 10.38 Family Law Amendment Act 1987 …. 4.51, 4.90, 10.18, 10.30, 10.35, 10.36, 11.2–11.4, 11.39, 15.40 s 39(4) …. 4.108 Family Law Amendment Act 1989 …. 3.11, 8.128 Family Law Amendment Act 2000 …. 8.128, 8.137, 15.42 s 3 …. 15.40 Sch 1, s 80 …. 15.28 Sch 2 …. 15.40 Sch 2, s 5 …. 10.25 Sch 2, s 6 …. 15.71 Sch 3, s 74 …. 15.28 Family Law Amendment Act 2003 …. 3.39, 15.16, 15.53, 15.60 s 3 …. 12.41, 13.11, 15.18, 15.43, 15.47 Sch 2 …. 15.43

Sch 5(1) …. 15.47 Sch 6(1) …. 12.41, 13.11, 15.18 Family Law Amendment Act 2004 …. 8.151 Pt VIIIAA …. 4.87 Family Law Amendment Act 2005 …. 6.90 s 3 …. 4.129 Family Law Amendment (Arbitration and Other Measures) Rules 2015 …. 2.25 Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 …. 1.57, 4.92, 4.103, 5.91, 5.97, 10.30, 10.31, 10.47, 10.51, 12.21, 12.22 s 2 …. 5.93 s 3 …. 5.91 s 86A …. 6.115 Sch 1 …. 6.115, 6.117, 10.26 Sch 1, Pt 1, cl 3 …. 5.91 Sch 1, Pt 2, item 86 …. 10.52 Sch 1, Pt 2, item 86A …. 5.93, 10.52 Sch 3A …. 7.17, 7.45 Family Law Amendment (Shared Parental Responsibility) Act 2006 …. 1.76, 2.3, 2.14, 2.28, 2.64, 3.2, 8.11, 8.68–8.100, 9.30 Family Law (Child Abduction Convention) Regulations 1986 …. 8.149 Pt 3 …. 8.151 reg 2(1) …. 8.151 reg 2(2) …. 8.153 reg 4(1)(b) …. 8.153 reg 4(2) …. 8.153 reg 6 …. 8.151 reg 10 …. 8.150 reg 11(1) …. 8.150 reg 13(1) …. 8.151 reg 13(4) …. 8.151 reg 14 …. 8.152 reg 14(1) …. 8.152 reg 14(1)(b) …. 8.151 reg 14(2) …. 8.152 reg 15(1) …. 8.155 reg 16(1) …. 8.155 reg 16(2) …. 8.155 reg 16(3) …. 8.155, 8.156 reg 16(3)(a)(i) …. 8.156

reg 16(3)(a)(ii) …. 8.156 reg 16(3)(b) …. 8.157 reg 16(3)(c) …. 8.158 reg 16(3)(c)(ii) …. 8.158 reg 16(3)(d) …. 8.159 Sch 2 …. 8.150 Family Law (Family Dispute Resolution Practitioners) Regulations 2008 …. 2.9, 2.10 Pt 2 …. 2.11 reg 25 …. 2.64 reg 25(2) …. 2.30 reg 28 …. 2.12 reg 29 …. 2.12 reg 30 …. 2.12 Sch 1 …. 2.30 Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 …. 2.53, 2.62, 3.6, 3.11, 3.13, 3.27, 3.39, 8.1, 8.4, 8.13, 8.45, 8.90, 9.30 Family Law Legislation Amendment (Superannuation) Act 2001 …. 14.11, 15.3, 15.6 Family Law Reform Act 1995 …. 1.74, 1.75, 2.2, 3.1, 3.11, 3.17, 4.66, 5.42, 8.8, 8.36, 8.64, 8.75, 8.128, 9.29, 9.32, 9.37, 9.90 s 43 …. 3.13 Family Law Regulations 1984 …. 2.23, 5.117, 7.45 Pt IIA …. 7.10 Pt 5 …. 2.23, 2.25 Pt 5, Div 2 …. 2.24 reg 10A …. 6.5 reg 12BC …. 5.117 reg 12C …. 7.17, 7.23 reg 12CA …. 7.17 reg 12CAA …. 7.45 reg 15A …. 4.128 reg 15AB …. 5.117 reg 39B(4) …. 7.8 reg 39BA …. 7.8 regs 67P–67S …. 2.23 Sch 4 …. 7.8 Sch 4A …. 7.8 Family Law Rules 1984 O 33, r 3 …. 11.55

r 2.01 …. 6.4 Family Law Rules 2004 …. 2.13, 2.26, 2.28, 2.34, 6.71, 6.88, 8.90, 10.39, 10.61, 11.54, 13.30 Ch 16A …. 8.70 Ch 20 …. 10.39 Ch 26B …. 2.25 Pt 1, Sch 1, item 1(1)(a) …. 2.13, 2.26, 2.34 Pt 2, Sch 1 …. 2.26 Pt 4.2, Div 4.2.3 …. 8.123, 8.124 Pt 13.1, Div 13.1.2 …. 13.33 Pt 15.5 …. 8.89 Pt 15.5, Div 15.5.2 …. 8.89 Pt 15.5, Div 15.5.5 …. 8.89 r 1.05 …. 2.26, 2.31, 2.34, 2.35 r 1.05(1) …. 2.26 r 1.05(1)(b) …. 2.27 r 1.05(2) …. 2.34 r 1.10(2)(d) …. 2.26, 2.31, 2.35 r 2.04E …. 3.54 r 4.09(2) …. 8.123 r 8.02 …. 8.73 r 8.02(2) …. 8.76 rr 10.15–10.18 …. 15.37 r 12.02 …. 13.30 r 12.03 …. 2.48 r 12.03(4) …. 2.48 r 12.03(5) …. 2.48 r 12.05 …. 2.49, 13.30 r 12.06 …. 2.49 r 12.07 …. 2.49 r 15.03 …. 8.90 r 15.04(c) …. 8.90 r 15.42 …. 8.89 r 15.45(1) …. 8.89 r 15.49 …. 8.89 r 15.51(1) …. 8.89 r 15.51(2) …. 8.89 r 20.30 …. 10.39

Sch 1 …. 2.27, 2.31, 2.36 Sch 1, reg 1(5) …. 2.34 Sch 1, reg 3(1) …. 2.35 Sch 1, reg 3(2) …. 2.35 Sch 1, reg 3(4) …. 2.35 Sch 1, reg 3(5) …. 2.35 Sch 1, reg 3(6) …. 2.35 Dictionary …. 8.124 Family Law (Superannuation) Regulations 2001 …. 15.6 reg 3 …. 15.5 reg 8 …. 15.5 Federal Circuit Court Act 1999 …. 4.114 s 18 …. 4.83 Federal Circuit Court of Australia (Consequential Amendments) Act 2013 …. 4.111, 4.114 Federal Circuit Court of Australia Legislation Amendment Act 2012 …. 4.111, 4.114 Federal Circuit Court Rules 2001 …. 2.26, 2.27 Div 4.2 …. 2.27 r 10.05 …. 2.49 rr 13.04–13.05 …. 15.37 Federal Court of Australia Act 1976 s 32 …. 4.83 Federal Courts (State Jurisdiction) Act 1999 …. 4.104 Federal Justice System Amendment (Efficiency Measures) Act (No 1) 2009 …. 15.53, 15.60 Federal Magistrates Act 1999 Pt 6, Div 2 …. 4.114 Pt 7, Div 1 …. 4.114 s 4 …. 4.114 s 19 …. 4.115 ss 39–41 …. 4.115 Human Rights and Equal Opportunity Commission Act 1986 …. 1.49 Judiciary Act 1903 s 2 …. 4.23 Judiciary Act 1983 s 79 …. 7.23 s 80 …. 7.23 Jurisdiction of Courts (Cross-vesting) Act 1987 …. 4.93, 4.94, 4.101 s 3 …. 4.96

s 5 …. 4.96 s 9 …. 4.96 Law and Justice Legislation (Amendment) Act 1988 …. 13.11 Marriage Act 1961 …. 1.37, 1.45, 1.52, 1.61, 1.62, 4.1, 4.3, 4.9, 4.109, 4.113, 5.13, 5.21, 5.24–5.26, 5.30, 5.43, 5.54, 5.56, 5.57, 6.15, 6.24, 6.35, 6.110 Pt III …. 5.45, 5.119 Pt IV, Div 1, Subdiv A …. 5.54 Pt IV, Div 1, Subdiv B, s 39(1) …. 5.55 Pt IV, Div 1, Subdiv C …. 5.54 Pt IV, Div 2 …. 6.23 Pt IV, Div 3 …. 6.13 Pt V …. 5.58 Pt V, Divs 1–2 …. 5.25 Pt V, Div 3 …. 5.59 Pt V, Divs 3–4, ss 71–88 …. 5.25 Pt VA …. 5.25, 5.59, 5.61, 5.63, 5.68, 5.73 Pt VI …. 4.12 s 5 …. 1.52, 1.61, 4.3, 4.30, 5.47 s 5(1) …. 5.4, 5.13, 5.45, 5.47, 5.54, 6.15, 6.23, 6.43, 6.108 s 5(2) …. 5.119 s 9 …. 5.47 s 9A(1) …. 5.47 s 10(2)(b) …. 5.69 s 11 …. 5.35, 5.69, 6.13, 6.52, 6.53 s 12 …. 5.35–5.38, 5.41, 5.43, 5.44, 5.51, 6.53 s 12(1) …. 5.36 s 12(2) …. 5.37, 5.41, 6.53 s 12(2)(b) …. 5.37, 5.41 s 12(3) …. 5.44 s 12(4) …. 5.37 s 12(5) …. 5.44 s 13(1) …. 5.45 s 14 …. 5.45 ss 14–21 …. 5.45 s 15 …. 5.47, 5.48 s 15(1) …. 5.47 s 15(4) …. 5.47 s 16 …. 5.42, 5.48–5.51

s 16(1) …. 5.47 s 16(2) …. 5.49 s 16(5)–(6) …. 5.49 s 17 …. 5.49 s 18 …. 5.51 s 19(1) …. 5.43 s 19(2) …. 5.43 s 22 …. 5.27, 5.60, 6.13 s 23 …. 1.43, 5.26, 5.27, 6.13, 6.108 s 23(1) …. 6.110 s 23(1)(a) …. 5.5, 5.29, 5.81 s 23(1)(b) …. 5.30 s 23(1)(d)(i) …. 6.33 s 23(1)(d)(ii) …. 6.33 s 23(1)(e) …. 5.44, 5.81 s 23(2) …. 5.30, 5.70, 5.81 s 23A …. 5.27, 5.33, 5.61, 6.13 s 23B …. 1.43, 5.14, 5.26, 5.27, 5.33, 5.61, 5.80, 6.13, 6.14, 6.108 s 23B(1) …. 5.26, 6.25, 6.108, 6.110 s 23B(1)(a) …. 5.5, 5.29, 5.81, 6.13, 6.108 s 23B(1)(b) …. 5.30, 6.13, 6.108 s 23B(1)(c) …. 6.13, 6.24, 6.108 s 23B(1)(d) …. 6.13, 6.108 s 23B(1)(d)(ii) …. 6.33, 6.40, 6.43, 6.44 s 23B(1)(d)(iii) …. 6.45, 6.49 s 23B(1)(e) …. 5.44, 5.81, 6.13, 6.54, 6.108 s 23B(2) …. 5.30, 5.70, 5.81, 6.13, 6.14, 6.21 s 23B(3) …. 6.13, 6.14, 6.21, 6.22 s 23B(5) …. 6.14, 6.21, 6.22 ss 25–38 …. 5.54, 6.24 s 26 …. 5.54 s 27 …. 5.54 s 29 …. 5.54 s 30 …. 5.54 s 31 …. 5.54 s 39(2) …. 5.55, 5.56 s 39A …. 5.54 ss 39A–39M …. 5.54

s 39B …. 5.54 s 39C …. 5.54 s 39C(1)(a)–(c) …. 5.54 s 39C(2)(a)–(h) …. 5.54 s 39G …. 5.54 ss 40–47 …. 6.23 s 41 …. 5.53, 5.56, 6.24 ss 41–46 …. 5.56 s 42 …. 5.81 s 42(1)(a) …. 5.56 s 42(1)(b) …. 5.56 s 42(1)(b)(i) …. 5.29 s 42(1)(c) …. 5.56 s 42(1)(c)(i) …. 5.29 s 42(10) …. 5.56 s 43 …. 5.56 s 44 …. 5.56 s 45 …. 6.24 s 45(1) …. 5.56 s 45(2) …. 5.56 s 46 …. 5.4, 5.10 s 46(1) …. 1.52, 5.56 s 48 …. 5.81, 6.14, 6.24 s 48(1) …. 6.23, 6.24 s 48(2) …. 5.52, 5.81, 6.24 s 48(2)(e) …. 5.56 s 48(2)(f) …. 5.46 s 48(3) …. 5.52, 5.77, 5.82, 6.24 s 50 …. 5.56 s 51 …. 5.80 s 53 …. 5.57 s 54 …. 5.57 s 55(a) …. 5.57 s 55(b) …. 5.57 s 57 …. 5.57 s 58 …. 5.57 s 71 …. 5.59 s 72 …. 5.59

s 83 …. 5.81 s 83(2) …. 5.82 ss 88A–88G …. 5.63 s 88B(3) …. 5.59 s 88B(4) …. 5.73 s 88B(5)(1) …. 5.73 s 88C …. 5.71, 5.72 s 88C(1) …. 5.61, 5.67 s 88C(2) …. 5.67 s 88D …. 5.70–5.72 s 88D(1) …. 5.67 s 88D(2) …. 5.68 s 88D(2)(a) …. 5.8 s 88D(2)(b) …. 5.69 s 88D(2)(c) …. 5.70 s 88D(2)(d) …. 5.70 s 88D(3) …. 5.69 s 88D(4) …. 5.70 s 88D(5) …. 5.70 s 88E …. 5.8, 5.70, 5.73 s 88E(3) …. 5.9 s 88E(4) …. 5.8, 5.9, 5.68 s 88EA …. 1.61, 5.10, 5.73 s 89 …. 1.37, 4.12, 4.14, 4.17, 4.24, 5.39, 5.85, 7.3 ss 89–91 …. 4.12 s 89(1) …. 5.84 s 90 …. 4.12, 4.14 s 91 …. 4.12, 4.17–4.19, 5.82 s 94 …. 4.12 ss 94–106 …. 5.83 s 94(1) …. 5.81 s 94(2) …. 5.29 s 95 …. 5.81 s 95(1) …. 5.81 s 95(2) …. 5.46 s 95(4) …. 5.46, 5.81 s 99(6) …. 5.78 s 100 …. 6.22, 6.24

s 101 …. 5.82 s 103 …. 5.82 s 104 …. 6.22, 6.24 s 111A …. 5.19 s 111A(2) …. 5.20 s 113 …. 5.26, 5.29, 5.78, 5.80, 6.108 s 113(1)(a) …. 5.78 s 113(2) …. 5.79 s 113(3) …. 5.79 s 113(5) …. 5.78 s 113(6) …. 5.78, 5.79 s 113(7) …. 5.78 Sch …. 5.45 Sch, Pt I …. 5.45 Sch, Pt II …. 5.45 Marriage Amendment Act 1973 …. 5.4 Marriage Amendment Act 1976 …. 5.19, 5.42, 5.47, 6.13 s 12 …. 5.30 Marriage Amendment Act 1985 …. 5.8, 5.27, 5.52, 5.61, 6.13 s 13 …. 6.14 s 71 …. 5.27 Marriage Amendment Act 2002 …. 5.25, 5.47, 5.52, 5.58 Marriage Amendment Act 2004 …. 1.52, 1.61, 4.3, 5.4, 5.10 s 3 …. 5.73 Sch 1 …. 5.73 Marriage Regulations 1963 …. 5.83 reg 37G …. 5.54 reg 37L …. 5.54 reg 42 …. 5.56 Sch 1A …. 5.54 Matrimonial Causes Act 1899 …. 6.95 Matrimonial Causes Act 1945 …. 4.10 s 6 …. 4.10 s 11 …. 4.10 s 12A …. 4.10 s 18 …. 4.19 Matrimonial Causes Act 1955 s 5 …. 4.10

Matrimonial Causes Act 1959 …. 1.29, 1.36–1.39, 1.41, 1.42, 4.9, 4.10, 4.25, 4.26, 4.29, 4.34, 4.71, 4.81, 4.82, 4.107, 4.109, 5.6, 5.7, 5.31, 6.9–6.11, 6.55, 6.84, 10.11, 10.12, 10.14, 12.15, 12.16, 12.37 s 5 …. 4.30 s 5(1) …. 4.24, 4.36 s 5(1)(a) …. 4.24 s 5(1)(c) …. 4.26, 4.29, 4.30 s 6A …. 5.7, 6.111 s 18 …. 6.14 s 21 …. 6.10 s 23 …. 4.32 s 23(4)–(5) …. 4.107 s 24(1) …. 4.107 s 24(2) …. 4.107 s 28(m) …. 6.62 s 28(n) …. 6.19 s 41A …. 6.86 s 41A(4) …. 6.87 s 84(1) …. 10.14 s 84(2) …. 10.14 s 86 …. 4.37, 12.15, 12.16 s 86(1) …. 4.26 s 86(2) …. 4.26 s 89(2) …. 4.24 s 89(4) …. 4.24 Sch 2 …. 1.43, 5.31 Matrimonial Causes Act 1965 …. 6.86 s 3 …. 5.7 Matrimonial Causes (Expeditionary Forces) Act 1919 …. 4.10 Matrimonial Causes Rules r 195 …. 4.24 Migration Act 1958 …. 8.4 Prohibition of Human Cloning for Reproduction Act 2002 …. 7.32 Research Involving Human Embryos Act 2002 …. 7.32 Same-Sex Relationships (Equal Treatment in Commonwealth Laws — General Law Reform) Act 2008 …. 5.87 Sex Discrimination Act 1984 …. 5.35, 6.52, 7.33 s 22 …. 7.33 Sex Discrimination Amendment Act 1991 …. 5.35

Social Security Act 1991 …. 5.105, 5.113, 11.60 Social Security and Veterans Entitlements (Maintenance Income Test) Amendment Act 1988 …. 11.60 ss 67–69 …. 11.58 ss 72K–72P …. 11.56 Superannuation Industry (Supervision) Regulations 1994 reg 1.03AB …. 15.5 reg 6.01(2) …. 15.5 reg 6.01(5)(a) …. 15.5 reg 6.01(5A) …. 15.5 Sch 1 …. 15.5 Tribunals Amalgamation Act 2015 …. 11.74

Australian Capital Territory Artificial Conception Act 1985 …. 7.20, 7.39 Children and Young People Act 2008 …. 3.34 Chs 10–19 …. 3.43 s 356 …. 3.37 Civil Partnerships Act 2008 …. 1.62, 5.117, 5.119, 6.126 s 6 …. 5.119 s 7 …. 5.116 s 8 …. 5.116 s 9(1) …. 6.126 s 9(2) …. 6.125 s 10 …. 6.125, 6.126 s 11 …. 6.125 s 19 …. 5.116 Crimes Act 1900 Pt 4 …. 3.29 Domestic Relationships Act 1994 …. 1.59, 5.119, 10.49, 10.54, 12.20 s 3 …. 5.94, 5.118 s 18 …. 10.49 s 19 …. 10.48 s 19(1) …. 10.49 s 19(2) …. 10.49 s 19(3) …. 10.50 s 22 …. 10.49 Domestic Violence and Protection Orders Act 2008 …. 3.22

Federal Courts (State Jurisdiction) Act 1999 …. 4.104 Human Cloning and Embryo Research Act 2004 …. 7.32 Jurisdiction of Courts (Cross-vesting) Act 1993 …. 4.93, 4.101 s 3 …. 4.96 s 5 …. 4.96 s 9 …. 4.96 Legislation Act 2001 s 169 …. 7.17 Marriage Equality (Same Sex) Act 2013 …. 4.3 Parentage Act 2004 …. 7.5, 7.20, 7.42, 7.43 s 11 …. 7.20 s 11(2) …. 7.20 s 11(3) …. 7.20 s 11(4) …. 7.17 s 11(5) …. 7.20 s 24(d) …. 7.43 s 26(1) …. 7.43 s 26(3) …. 7.43 s 45 …. 7.42

New South Wales Assisted Reproductive Technology Act 2007 …. 7.31, 7.33, 7.35 s 3(b)(i) …. 7.35 s 17 …. 7.29 ss 19–26 …. 7.29 s 23 …. 7.29, 7.30 Children and Young Persons (Care and Protection) Act 1998 …. 3.30, 3.34 Ch 4 …. 3.43 Ch 5 …. 3.43 s 23 …. 3.37 s 27 …. 3.37 s 36(1)(c) …. 3.43 Commonwealth Powers (De Facto Relationships) Act 2003 …. 1.57, 4.92 Commonwealth Powers (Family Law — Children) Act 1986 …. 4.51, 4.90 s 3 …. 10.62 s 3(1)(a) …. 4.91 s 3(1)(b) …. 4.91 s 3(2) …. 4.91

s 4 …. 4.91 Corporations (New South Wales) Act 1990 …. 4.101 Crimes Act 1900 s 45 …. 3.29 s 61AA …. 3.28 s 92 …. 4.12 Crimes (Domestic and Personal Violence) Act 2007 …. 3.22 s 42(3)(b) …. 3.24, 3.25 De Facto Relationships Act 1984 …. 1.57, 6.118 Deserted Wives and Children Act 1840 …. 10.10 Family Provision Act 1982 …. 4.85 Federal Courts (State Jurisdiction) Act 1999 …. 4.104 Guardianship Act 1987 …. 4.60, 4.63, 4.64, 8.121 Pt 5 …. 4.59, 4.61 s 35(1) …. 4.60 Human Cloning for Reproduction and Other Prohibited Practices Act 2003 …. 7.32 Jurisdiction of Courts (Cross-vesting) Act 1987 …. 4.93, 4.101 s 3 …. 4.96 s 5 …. 4.96 s 9 …. 4.96 Married Persons (Equality of Status) Act 1996 s 5 …. 4.69 Miscellaneous Acts Amendment (Same Sex Relationships) Act 2008 …. 1.57 Property (Relationships) Act 1984 …. 1.57, 5.89, 7.28, 10.47, 10.49, 10.54, 12.20 s 4 …. 5.100, 6.117 s 4(2) …. 5.95 s 4(2)(h) …. 5.100 s 5 …. 5.118 s 26 …. 10.49 s 27 …. 10.48 s 27(1) …. 10.49 s 27(1)(a) …. 10.49 s 27(1)(b) …. 10.49 s 27(2) …. 10.49 s 27(3) …. 10.50 s 30 …. 10.49 s 53 …. 3.8 Property (Relationships) Legislation Amendment Act 1999 …. 5.94

Relationships Register Act 2010 …. 12.20 Pt 2 …. 5.116 Pt 3 …. 6.126 s 10 …. 6.126 Research Involving Human Embryos (New South Wales) Act 2003 …. 7.32 Status of Children Act 1996 …. 7.5, 7.22, 7.28 s 14 …. 7.20 s 14(1) …. 7.20 s 14(1A) …. 7.17, 7.20 s 14(2) …. 7.20 s 14(3) …. 7.20 Succession Act 2006 …. 13.21 s 95 …. 4.85 Surrogacy Act 2010 …. 7.42, 7.43 s 4 …. 7.44 s 8 …. 7.54 s 11 …. 7.42 s 22 …. 7.43 s 27(1) …. 7.43

Northern Territory Care and Protection of Children Act 2007 …. 3.34, 3.52 Ch 2 …. 3.43 s 15 …. 3.37 s 16 …. 3.37 s 26 …. 3.37 s 67 …. 3.44 s 308 …. 3.52 Community Welfare Act 1983 …. 8.66 Criminal Code Act 1983 Pt VI, Div 4A …. 3.29 De Facto Relationships Act 1991 …. 12.20 s 3A …. 5.94 s 3A(2) …. 5.95 s 24 …. 10.49 s 26 …. 10.48 s 26(1) …. 10.49 s 26(2) …. 10.49

s 26(3) …. 10.50 s 32 …. 10.49 Domestic and Family Violence Act 2007 …. 3.22 s 19(2)(a) …. 3.24 s 90 …. 3.24 s 124A …. 3.22 Federal Courts (State Jurisdiction) Act 1999 …. 4.104 Jurisdiction of Courts (Cross-vesting) Act 1987 …. 4.93, 4.101 s 3 …. 4.96 s 5 …. 4.96 s 9 …. 4.96 Law Reform (Gender Sexuality and De Facto Relationships) Act 2003 …. 5.94 Property (Relationships) Act 1984 ss 4–5 …. 5.94 Status of Children Act 1978 …. 7.5 Pt IIIA …. 7.20 s 5C …. 7.20 s 5DA …. 7.17 s 5F …. 7.20

Queensland Acts Interpretation Act 1954 s 32DA(1) …. 5.94 s 32DA(2) …. 5.95 Child Protection Act 1999 …. 3.34 Ch 2 …. 3.43 Ch 2, Pt 1AA …. 3.37 Civil Partnerships Act 2011 …. 1.58, 5.117, 5.119 Civil Partnerships and Other Legislation Amendment Act 2012 …. 5.119 Commonwealth Powers (De Facto Relationships) Act 2003 …. 4.92 Commonwealth Powers (Family Law — Children) Act 1990 …. 4.51, 4.90, 10.62 s 3(1)(a) …. 4.91 s 3(1)(b) …. 4.91 s 3(2) …. 4.91 s 4 …. 4.91 Criminal Code Act 1899 s 323A …. 3.29 s 323B …. 3.29

s 360 …. 4.12 Domestic and Family Violence Protection Act 2012 …. 3.22 s 76 …. 3.24 s 78 …. 3.24 Education (General Provisions) Act 2006 s 364 …. 3.37 s 365 …. 3.37 s 365A …. 3.37 s 366 …. 3.37 s 366A …. 3.37 Federal Courts (State Jurisdiction) Act 1999 …. 4.104 Jurisdiction of Courts (Cross-vesting) Act 1987 …. 4.93, 4.101 s 3 …. 4.96 s 5 …. 4.96 s 9 …. 4.96 Property Law Act 1974 …. 12.20 Pt 19 …. 10.52 ss 260–261 …. 5.94 Property Law Amendment Act 1999 …. 5.94, 12.20 Relationships Act 2011 …. 5.116, 5.119, 12.20 Relationships Act 2012 Pt 6 …. 5.119 Relationships (Civil Partnerships) and Other Acts Amendment Bill 2015 …. 12.20 Research Involving Human Embryos and Prohibition of Human Cloning for Reproduction Act 2003 …. 7.32 Status of Children Act 1978 …. 7.5 Pt 3 Div 2 …. 7.20 s 17(2)(b) …. 7.20 s 18(2)(b) …. 7.20 s 19(2)(a) …. 7.20 s 19(2)(d)(ii) …. 7.20 ss 19B–19E …. 7.17 s 19C …. 7.20 s 19D(2) …. 7.20 s 19E(2)(a) …. 7.20 s 19E(4) …. 7.20 s 21(1) …. 7.20 s 22(2) …. 7.20

s 23(2)(a) …. 7.20 s 23(4) …. 7.20 Surrogacy Act 2010 …. 7.42, 7.43, 7.44 s 13 …. 7.44 s 15(2)(b) …. 7.44 s 22(2)(a) …. 7.43 s 22(2)(f) …. 7.43 s 54 …. 7.42

South Australia Action for Breach of Promise (Abolition) Act 1971 …. 5.19 Assisted Reproductive Treatment Act 1988 …. 7.31, 7.33, 7.35, 7.42, 7.43 s 4A …. 7.35 s 9(1)(c) …. 7.33 s 9(1)(c)(iv) …. 7.29, 7.30 Births Deaths and Marriages Registration Act 1996 …. 7.42, 7.43 Children’s Protection Act 1993 …. 3.34 Ch 2, Pt 1AA …. 3.37 Pt 5 …. 3.43 s 43 …. 3.44 Commonwealth Powers (De Facto Relationships Act) 2009 …. 4.92, 10.55 s 2 …. 5.93 s 4(1)(b) …. 10.55 Commonwealth Powers (Family Law — Children) Act 1986 …. 4.51, 4.90 s 3 …. 10.62 s 3(1)(a) …. 4.91 s 3(1)(b) …. 4.91 s 3(2) …. 4.91 s 4 …. 4.91 Criminal Law Consolidation Act 1935 Pt 3, Div 8 …. 3.29 s 78 …. 4.12 Domestic Partners Property Act 1996 …. 10.54, 12.20 s 3 …. 5.94 s 3(1) …. 5.118 Family Relationships Act 1975 …. 1.56, 7.5, 7.42, 7.43 Pt 2A …. 7.20 s 10C(1) …. 7.20

s 10C(2) …. 7.20 s 10C(3) …. 7.17 s 10C(4) …. 7.20 s 10HA(2)(b)(iii) …. 7.43 s 10HA(2)(b)(viii) …. 7.43 s 10HB …. 7.44 s 10HB(6) …. 7.43 Federal Courts (State Jurisdiction) Act 1999 …. 4.104 Guardianship of Infants Act 1940 …. 4.34 Intervention Orders (Prevention of Abuse) Act 2009 …. 3.22 s 7(1)(b) …. 3.18 s 10(2) …. 3.24 s 10(2)(a) …. 3.25 s 10(2)(b) …. 3.25 s 16(1) …. 3.24 Jurisdiction of Courts (Cross-vesting) Act 1987 …. 4.93, 4.101 s 3 …. 4.96 s 5 …. 4.96 s 9 …. 4.96 Law of Property Act 1936 s 105 …. 12.12 Prohibition of Human Cloning for Reproduction Act 2003 …. 7.31, 7.32 Reproductive Technology Act 1988 …. 7.33 Research Involving Human Embryos Act 2003 …. 7.32 Statutes Amendment (Domestic Partners) Act 2006 …. 5.94 Statutes Amendment (Surrogacy) Act 2009 …. 7.42, 7.43

Tasmania Children, Young Persons and Their Families Act 1997 …. 3.34, 4.68 Pt 5 …. 3.43 s 3 …. 3.37 s 4 …. 3.37 s 14 …. 3.37 Commonwealth Powers (De Facto Relationships) Act 2006 …. 4.92 Commonwealth Powers (Family Law) Act 1987 …. 4.51, 4.90, 10.62 s 3(1)(a) …. 4.91 s 3(1)(b) …. 4.91 s 3(2) …. 4.91

s 3(4) …. 4.91 s 4 …. 4.91 Criminal Code Act 1924 s 50 …. 3.28 s 178A …. 3.29 s 178B …. 3.29 Family Violence Act 2004 …. 3.22 s 18 …. 3.24, 3.25 s 33 …. 3.24 Federal Courts (State Jurisdiction) Act 1999 …. 4.104 Human Cloning for Reproduction and Other Prohibited Practices Act 2003 …. 7.32 Human Embryonic Research Regulation Act 2003 …. 7.32 Jurisdiction of Courts (Cross-vesting) Act 1987 …. 4.93, 4.101 s 3 …. 4.96 s 5 …. 4.96 s 9 …. 4.96 Maintenance Act 1967 …. 1.55 s 16(1) …. 1.55 Relationships Act 2003 …. 5.117, 10.54, 12.20 Pt 2 …. 5.116 Pt 3 …. 5.116 ss 4–5 …. 5.94 s 4(3) …. 5.95 ss 5–6 …. 5.118 s 11 …. 5.116 ss 11–18 …. 5.116 s 15(1) …. 6.126 ss 16–17 …. 6.125, 6.126 s 18 …. 6.126 ss 19–30 …. 5.116 ss 36–38 …. 1.55 s 38(2) …. 10.49 s 46 …. 10.49 ss 46–53 …. 1.55 s 47 …. 10.48 s 47(1) …. 10.49 s 47(2) …. 10.49 s 47(3) …. 10.50

Relationships Act 2008 …. 5.118 Status of Children Act 1974 …. 7.5 Pt III …. 7.20 s 10C …. 7.17 s 10C(2) …. 7.20 s 10C(3) …. 7.20 s 10C(4) …. 7.20 s 15 …. 7.23 Surrogacy Act 2012 …. 7.43 s 4 …. 7.44 s 13 …. 7.44

Victoria Adoption Act 1984 s 11(l)(b) …. 5.9 Assisted Reproductive Treatment Act 2008 …. 7.30, 7.31, 7.33, 7.35, 7.42, 7.43 s 5(a) …. 7.35 s 10 …. 7.33 s 11 …. 7.35 s 12 …. 7.35 s 14 …. 7.35 s 14(1)(b) …. 7.36 s 14(2) …. 7.36 s 14(3) …. 7.36 s 15 …. 7.35 s 16 …. 7.29 s 17 …. 7.29 ss 20–22 …. 7.29 s 22(1) …. 7.43 s 30 …. 7.29 ss 32–34 …. 7.29 s 36 …. 7.29 s 40(1)(b) …. 7.43 s 44 …. 7.42 s 44(1) …. 7.54 s 46 …. 7.29, 7.30 s 47 …. 7.30 s 85 …. 7.35

Children, Youth and Families Act 2005 …. 3.34 Ch 4 …. 3.43 s 162(c)–(d) …. 3.37 s 182(1)(a)–(e) …. 3.37 s 184 …. 3.37 Children, Youth and Families Amendment (Permanent Care and Other Matters) Act 2014 …. 3.44 Commonwealth Powers (De Facto Relationships) Act 2004 …. 4.92 Commonwealth Powers (Family Law — Children) Act 1986 …. 4.51, 4.90 s 3 …. 10.62 s 3(1)(a) …. 4.91 s 3(1)(b) …. 4.91 s 3(2) …. 4.91 s 4 …. 4.91 Crimes Act 1958 ss 32–34A …. 3.29 s 64 …. 4.12 Crimes (Family Violence) Act 1987 …. 3.23 Family Violence Protection Act 2008 …. 3.22 s 5(1)(b) …. 3.18 s 8(1)(d)–(e) …. 3.18 s 80 …. 3.25 s 89 …. 3.24 s 90 …. 3.24 Federal Courts (State Jurisdiction) Act 1999 …. 4.104 Infertility (Medical Procedures) Act 1984 …. 7.31 Infertility Treatment Act 1995 …. 7.30, 7.31, 7.33 s 12(3) …. 7.30 s 43(a) …. 7.30 Jurisdiction of Courts (Cross-vesting) Act 1987 …. 4.93, 4.101 s 3 …. 4.96 s 5 …. 4.96 s 9 …. 4.96 Maintenance Act 1965 s 3(1) …. 4.30 Marriage Act 1928 …. 4.26 Marriage Act 1958 …. 12.15 s 160 …. 4.69

s 161(4)(b) …. 12.15 Prohibition of Human Cloning for Reproduction Act 2008 …. 7.32 Relationships Act 2008 …. 5.117, 10.54, 12.20 Pt 2.2 …. 5.116 Pt 2.3 …. 5.116 ss 6–16 …. 5.116 s 11(1) …. 6.126 ss 12–15 …. 6.126 ss 12–16 …. 6.125 s 16 …. 6.126 ss 17–27 …. 5.116 s 35(2) …. 5.95 s 39 …. 5.94 s 51 …. 10.48, 10.49 s 51(2) …. 10.49 s 51(3) …. 10.50 Relationships Amendment (Caring Relationships) Act 2009 …. 5.118, 10.54 Research Involving Human Embryos Act 2008 …. 7.32 Status of Children Act 1974 …. 7.5, 7.42 Pt II …. 7.20 Pt III …. 7.20 s 3(1) …. 7.5 s 10C(2) …. 7.20 s 10D(2) …. 7.20 ss 13–14 …. 7.17 s 13(1) …. 7.20 s 14(1) …. 7.20 s 15(1) …. 7.20 s 16(1) …. 7.20 s 18 …. 7.43 s 23(2)(a) …. 7.43

Western Australia Administration Act 1903 s 12A …. 7.5 Artificial Conception Act 1985 …. 7.20 s 5 …. 7.20 s 6A …. 7.17

s 7(2) …. 7.20 Child Support (Adoption of Laws) Act 1990 …. 11.39, 11.50 Children and Community Services Act 2004 …. 3.34 Pt 4 …. 3.43 s 9(a) …. 3.43 s 9(b) …. 3.43 s 9(f) …. 3.43 s 30 …. 3.44 s 124A …. 3.37 s 124B …. 3.37 Commonwealth Powers (De Facto Relationships) Act 2006 …. 4.92, 12.21 Criminal Code Act Compilation Act 1913 s 257 …. 3.28 s 306 …. 3.29 Family Court Act 1975 …. 4.76, 4.78, 4.79 s 9 …. 4.116 s 11 …. 4.118 s 12(1) …. 4.116 s 15 …. 4.116 s 16 …. 4.116 s 20 …. 4.117 s 27(1)–(2) …. 4.79 s 28 …. 4.116 Family Court Act 1997 …. 1.48, 1.57, 4.76, 4.78, 4.79, 4.116, 5.92, 5.114, 7.6, 8.16, 10.47, 11.2, 12.20 Pt 2 …. 4.79 Pt 5, Div 7 …. 11.2 Pt 5, Div 8, ss 133–141 …. 10.62 Pt 5A …. 5.91, 12.21 Pt 5A, Div 2 …. 4.72, 12.21 Pt 11 …. 3.8 s 4(1) …. 7.45 s 5 …. 3.37 s 5(1) …. 4.72 s 9 …. 4.79 s 11 …. 4.116 s 15 …. 4.116 s 18(1) …. 4.116

s 22 …. 4.118 s 24 …. 4.117 ss 30–31 …. 4.79 s 36(2) …. 7.44 s 37 …. 4.116 s 66(2) …. 7.5 s 69(1) …. 7.5 s 160 …. 3.37 s 162 …. 8.116 s 205V …. 12.21 s 205ZB …. 6.122 s 205ZC …. 10.49 ss 205ZC–205ZD …. 10.48 s 205ZD(3) …. 10.49 s 205ZD(4) …. 10.50 Family Court Amendment Act 2002 …. 1.57, 20.21 Pt 5A …. 4.78 Family Law Amendment Act 1976 …. 4.117 Family Provision Act 1972 s 4 …. 7.5 Federal Courts (State Jurisdiction) Act 1999 …. 4.104 Gender Reassignment Act 2000 …. 5.13 s 14(1) …. 5.13 Human Reproductive Technology Act 1991 …. 7.31–7.33, 7.35 s 18(1)(f) …. 7.30 s 20 …. 7.29 s 23 …. 7.33 s 23(1)(d) …. 7.34 s 23(1)(e)(ii) …. 7.35 s 24 …. 7.29 s 26 …. 7.29 Inheritance (Family and Dependants Provision) Act 1972 …. 7.5 Interpretation Act 1984 s 13A …. 5.104, 7.33 s 13A(1) …. 5.94, 12.22 s 13A(2) …. 5.95, 12.22 s 13A(3)(b) …. 5.104 Jurisdiction of Courts (Cross-vesting) Act 1987 …. 4.93, 4.101

s 3 …. 4.96 s 5 …. 4.96 s 9 …. 4.96 Restraining Orders Act 1997 …. 3.22 s 5 …. 3.24 s 12 …. 3.25 s 13 …. 3.24 s 65 …. 3.24 s 66 …. 3.24 Surrogacy Act 2008 …. 7.42, 7.43 s 13 …. 7.43 s 17(a)(i) …. 7.43 s 19 …. 7.43 s 21 …. 7.43 s 21(4)(b) …. 7.43 Wills Act 1970 Pt IX …. 7.5

Canada Divorce Act 1985 s 17 …. 8.108

International Convention on the Elimination of All Forms of Discrimination Against Women …. 1.68 Hague Convention on the Civil Aspects of International Child Abduction 1980 …. 6.13, 8.144, 8.149–8.153, 8.157, 8.160, 9.52, 9.93 Art 1 …. 8.149 Art 3 …. 8.153 Art 7 …. 8.157 Art 9 …. 5.67 Art 11 …. 5.63, 5.68 Art 13 …. 5.71 Art 14 …. 5.63 International Covenant on Civil and Political Rights Art 2 …. 1.68 Art 3(3) …. 3.6 Art 9 …. 3.6 Art 17 …. 3.6

Art 19 …. 3.6 Art 23 …. 3.6 Art 24 …. 3.6 Art 26 …. 1.68 Art 34 …. 3.6 Art 39 …. 3.6 United Nations Convention on the Rights of the Child 1989 …. 8.1–8.4, 8.18, 8.22, 8.34, 8.55, 8.78, 9.43, 9.110 Art 2 …. 8.18 Art 3(1) …. 8.55, 8.60 Art 5 …. 8.4, 8.22 Art 7 …. 8.18 Art 9 …. 8.75 Art 9(3) …. 8.18, 9.89, 9.96, 9.110 Art 12 …. 2.18, 8.4, 8.72, 8.75, 9.45 Art 12(1) …. 9.41 Art 14 …. 9.76 Art 30 …. 9.78, 9.79, 9.81 Art 18 …. 8.18 Art 37 …. 8.4

New Zealand Care of Children Act 2004 s 139A …. 8.108 Family Proceedings Act 1980 s 2 …. 5.7 Matrimonial Property Act 1976 …. 12.2 Property (Relationships) Act 1976 …. 12.2 Status of Children Act 1969 …. 1.56, 7.5 United Kingdom Legitimacy Act 1926 …. 7.3

United Kingdom Children Act 1989 …. 8.7, 8.8, 8.36 Children (Scotland) Act 1995 …. 8.20, 8.22 s 1 …. 8.20 s 2 …. 8.20 Civil Partnership Act 2004 …. 5.11 Clandestine Marriages Act of 1753 …. 1.4, 5.23, 5.65

s 18 …. 5.23 Divorce and Matrimonial Causes Act 1857 …. 1.11, 1.19, 1.21, 1.24, 1.35, 4.22, 4.69, 6.92, 12.12 s 26 …. 4.69 Judicature Act 1873 …. 1.21 Law Reform (Married Women and Tortfeasors) Act 1935 …. 4.69 Law Reform (Miscellaneous Provisions) Act 1970 …. 5.19 s 3(2) …. 5.20 Legitimacy Act 1926 …. 5.84 Marriage and Registration Act 1856 …. 5.23 Married Women’s Property Act 1870 …. 4.69, 5.16 Married Women’s Property Act 1882 …. 4.69, 5.16, 12.12 s 17 …. 12.13, 12.14 Matrimonial Causes Act 1857 …. 5.15, 10.12 Matrimonial Causes Act 1937 …. 1.29 Matrimonial Causes Act 1963 …. 6.86 Matrimonial Causes Act 1973 s 1 …. 1.40 s 25 …. 10.13 s 47 …. 5.7 Matrimonial Proceedings and Property Act 1970 …. 12.14 s 27(1)(b) …. 4.30 Registration Act 1837 …. 1.4

TABLE OF CONTENTS ___________________________

Table of Detailed Contents Preface Acknowledgments Table of Cases Table of Statutes Chapter 1

Law, Society and the Family

Chapter 2

Dispute Resolution in Family Law

Chapter 3

Violence and Abuse

Chapter 4

Constitutional Powers and the Family Courts

Chapter 5

Marriage and De Facto Relationships

Chapter 6

Nullity, Divorce and Termination of De Facto Relationships

Chapter 7

Parentage

Chapter 8

Child-Related Disputes: The Legislative Framework

Chapter 9

Children and Parents: The Exercise of Discretion in Reallocating Parental Responsibility

Chapter 10

Financial Support of Married and De Facto Partners

Chapter 11

Financial Support of Children

Chapter 12

Property Proceedings: Preliminary Issues

Chapter 13

Property Proceedings: The Legislative Framework

Chapter 14

Property Proceedings: The Exercise of the Discretion

Chapter 15

Property Proceedings: Specific Issues

Index

TABLE OF DETAILED CONTENTS ___________________________

Table of Detailed Contents Preface Acknowledgments Table of Cases Table of Statutes Chapter 1

Law, Society and the Family Introduction A short history of English marriage and divorce law Marriage Marriage breakdown and its early remedies Annulment Parliamentary divorce Divorce for the common man (and woman?) The coming of divorce From fault to irretrievable breakdown Adultery Cruelty, desertion and incurable insanity Irretrievable breakdown Developing an Australian family law

Introduction Matrimonial Causes Act 1959 (Cth) Family Law Act 1975 (Cth) The creation of the Family Court of Australia Families in Australia: The modern social context The modern family Families based on marriage Families based on cohabitation — ‘de facto’ marriage Same-sex couples Children as the basis of family law regulation Family violence and family law The psychological impacts of relationship breakdown Infants and toddlers Preschoolers School age Helping younger children transition Early adolescence Reading the signs Chapter 2

Dispute Resolution in Family Law Introduction Out-of-court FDR Family Relationship Centres What is FDR and who are FDR practitioners? Family Law (Family Dispute Resolution Practitioners) Regulations 2008 (Cth)

Dispute resolution processes Negotiation Mediation Child-inclusive mediation Further FDR processes outside the court system Collaborative law Legal aid conference/dispute management Arbitration Pre-action procedures Parenting disputes and s 60I certificates Property settlement and maintenance When is FDR unsuitable? FDR processes within the court system Family consultants Conciliation and case assessment conferences Obligations on advisers Family counselling in respect of children Confidentiality and admissibility of communications in family counselling and FDR Chapter 3

Violence and Abuse Introduction Government inquiries following the 2006 reforms New definitions of ‘family violence’ and ‘child abuse’ in the FLA Recent developments Family violence Child abuse

International instruments Injunctions Introduction The injunction as protection from violence and harassment Injunctions excluding a party from the home Injunctions for the protection of a child (and others) Enforcement Protection orders under state and territory legislation Relationship between Commonwealth and state or territory laws What constitutes child abuse? Incidence, causes and effects of child abuse Protecting children from abuse under state and territory legislation Mandatory reporting under state and territory laws Mandatory reporting under the FLA State intervention for the protection of a child Child protection: the relationship between the Commonwealth and state and territory laws Other strategies Chapter 4

Constitutional Powers and the Family Courts Introduction Constitutional powers The marriage power

The matrimonial causes power The FLA The first challenge to the FLA: Russell v Russell The effects of Russell v Russell The limits of federal jurisdiction Introduction Federal law and the adoption of children Third parties and the ‘child of the marriage’ Wardship and the welfare jurisdiction of the Family Court Testing the limits of the welfare jurisdiction Other proceedings between the parties Overcoming the limitations: first steps Involvement of the state courts State family courts The Family Court of Western Australia Overcoming the limitations: bold steps Associated and accrued jurisdiction Referral of power Cross-vesting of jurisdiction Domicile and the basis of jurisdiction The Family Courts The Family Court of Australia The Federal Circuit Court of Australia The Family Court of Western Australia Appeals The nature of appeals

Full Court of the Family Court of Australia Appeals from the Federal Circuit Court of Australia (and the Magistrates Court of Western Australia) Appeals from the Family Court of Australia and the Family Court of Western Australia (or a state and territory Supreme Court) Appeals to the High Court Chapter 5

Marriage and De Facto Relationships Introduction Marriage Essential characteristics Monogamy Polygamy Indigenous Australians — Aboriginal customary marriages A man and a woman A voluntary union For life Engagements and breach of promise Codifying marriage Introduction Marriage Act Marriage Amendment Act 1985 (Cth) and the marriage of foreign nationals in Australia Capacity to marry Freedom to marry Prohibited relationships

Marriageable age Consent to the marriage of minors Formalities Marriages in Australia by authorised celebrants Consular marriages in Australia Australian marriages overseas Recognition of foreign marriages Introduction The ‘new’ statutory recognition rule: local law Recognition at common law No recognition of ‘foreign’ same-sex marriages Presumed validity of marriage Second marriage ceremonies Consequences of non-compliance with the Marriage Act Legitimation De facto relationships Introduction De facto relationships and the FLA The FLA definition The nature of the s 4AA inquiry The key concepts — ‘a couple living together on a genuine domestic basis’ Multiple relationships The circumstances of the relationship Existence of the relationship over time De facto relationship declarations

Relationship registration schemes Close and caring personal relationships Civil partnership laws Chapter 6

Nullity, Divorce and Termination of De Facto Relationships Introduction Jurisdiction — divorce and nullity Institution of proceedings Nullity Introduction Subsisting prior marriage Prohibited relationships Invalidity under s 48 of the Marriage Act 1961 (Cth) Absence of real consent Duress or fraud Mistake Mistake of identity Mistake as to the nature of the ceremony Mental incapacity Party below marriageable age Divorce Introduction Irretrievable breakdown of marriage Separation Separation under the same roof Reasonable likelihood of cohabitation being

resumed Duration of separation The two-year marriage — s 44(1B) and (1C) of the FLA Divorce orders When divorce order takes effect Arrangements for children Rescission of divorce orders Foreign divorces, annulments and legal separations Void and invalid marriages Divorce and nullity Declarations of validity Ancillary proceedings Termination of de facto relationships Introduction Meaning of breakdown What constitutes breakdown of a de facto relationship Registered relationships and civil partnerships Chapter 7

Parentage Introduction Status of children Historical background Status of children legislation Establishing parenthood Presumptions of parentage under the FLA Parentage evidence

Assisted conception Legislative solutions Known donors under the FLA Assisted conception and child support Regulation of artificial/assisted conception and related research procedures Status of frozen embryos Posthumous sperm Legislative developments Access to assisted conception procedures Surrogacy The status of surrogacy arrangements Legislative developments Surrogacy arrangements and the FLA Conflicting decisions in the Family Court Parental responsibility v orders for legal parentage Conclusion Chapter 8

Child-Related Disputes: The Legislative Framework Introduction The United Nations Convention on the Rights of the Child 1989 Proceedings in respect of children under the FLA Background to the current legislative regime Scope of operation of Pt VII of the FLA Key features of Pt VII Parental responsibility

Content of parental responsibility Who has parental responsibility? Joint or several responsibility? Scope of parental responsibility Reallocation of parental responsibility Parenting agreements Institution of proceedings and procedure Who may institute proceedings? Required jurisdictional connection Parenting orders Orders dealing with where a child lives Orders dealing with children spending time, or communicating, with another person Proceedings in respect of parenting orders Exercise of the court’s jurisdiction: the best interests of the child as the paramount consideration The mandatory process for determining best interests Scope of operation of the best interests of the child principle under the FLA The less adversarial trial Representation of children’s interests: the independent children’s lawyer Circumstances in which the court may appoint an ICL Role of an ICL Discharging an ICL

Expert evidence Family reports by family consultants Orders that can be made General Orders least likely to lead to further proceedings Interim orders Variation of orders in respect of children Interrelationship between parenting orders and family violence orders The Family Court’s welfare jurisdiction Enforcement of orders in relation to children Background The current legislative scheme Specific legal mechanisms dealing with noncompliance Legislative restrictions regarding the removal of children from Australia Location orders Recovery orders International child abduction Chapter 9

Children and Parents: The Exercise of Discretion in Reallocating Parental Responsibility Introduction The statutory framework for applying the best interests principle Applying the presumption of equal shared parental responsibility The operation of s 65DAA and shared parenting

The historical preference for mothers as custodians Attachment theory Research on the benefits to children of shared parenting The use of social science research as an aid to the exercise of discretion Section 65DAA and shared parenting Relevant considerations in the exercise of the court’s discretion Introduction Findings of credit Primary versus additional considerations The two primary considerations The benefit to a child of a meaningful relationship with both parents Protection from harm and family violence Additional considerations Views of the child Disturbing the status quo Separation of siblings Parents, third parties and the role of biology in decision-making The general conduct of the parties Matrimonial conduct of the parties Kidnapping Unconventional lifestyle Homosexuality

Religion Children of Aboriginal or Torres Strait Islander descent ‘Spend time with’ orders Orders not permitting children to spend time with parents Orders for children to spend time with nonparents The impact of a child not wanting to spend time with a parent The intractable nature of ‘spend time with’ orders Allegations of child sexual abuse in contested child proceedings Relocation cases Change of name Chapter 10

Financial Support of Married and De Facto Partners Introduction Support of married partners Introduction The history of spousal maintenance Policy issues in the current law Jurisdiction and types of maintenance orders Entitlement to spousal maintenance The threshold: s 72 The court’s power under s 74 and the s 75(2) factors The parties’ needs and means

Financial relationships with third parties Section 75(2)(o) and considerations of conduct Private and public purses: the relationship between spousal maintenance and social security Spousal maintenance orders Form Modification Duration Enforcement The future of spousal maintenance Support of de facto partners Introduction Statutory maintenance entitlements prior to the commencement of Pt VIIIAB in 2009 Statutory maintenance entitlements after the commencement of Pt VIIIAB Threshold issues and time limits Geographical requirements The court’s power under s 90SE and the s 90SF(3) factors Modification and cessation of de facto relationship maintenance order Enforcement Child-bearing expenses Chapter 11

Financial Support of Children Introduction

Child maintenance principles under the FLA Maintenance for adult children Applications on the basis of an adult child’s disability Applications to enable an adult child to complete his or her education Liability of step-parents for child maintenance The CSS Introduction Background to the introduction of the CSS Reform of the CSS Registration and collection of child support Introduction Objects Collection, payment and enforcement of child support Associated changes to social security Administrative assessment of child support Introduction Children to whom administrative assessment applies Persons who may apply for administrative assessment Persons who may be liable for administrative assessment Recovering money wrongly paid under an administrative assessment Processing applications for administrative

assessment Child support period Statutory formula for administrative assessment of child support Departure from administrative assessment Introduction Significantly reduced capacity of either parent to provide financial support High costs of the child Child or parents’ financial situation and payments in lieu of child support Changes to an assessment under Pt 6A Varying a departure from assessment Orders for child support other than in periodic form Private arrangements for child support Cessation of child support Chapter 12

Property Proceedings: Preliminary Issues Introduction Achieving economic justice? The economic consequences of relationship breakdown Extraneous factors resulting in financial disadvantage for women Historical background The Commonwealth and married couples Parties to a de facto relationship Policy and reform issues in relation to financial

matters Jurisdiction Married couples Arising out of the marital relationship Proceedings following the death of a party Principal relief, including overseas divorce and nullity Parties to former de facto relationships De facto couples: threshold conditions Conclusion Chapter 13

Property Proceedings: The Legislative Framework Introduction The time limits for bringing an application for property settlement Married couples Parties to former de facto relationships The finality principle Declaration of property interests An overview of the relevant legislative provisions for dividing property Dividing property under the FLA The four-step approach post-Stanford The first ‘fundamental principle’: identifying legal and equitable interests in property Defining property Financial resources Companies and discretionary family trusts

Notional property and add backs? Notional property post-Stanford Valuing property Liabilities Full and frank disclosure The second and third ‘fundamental principles’ and the just and equitable requirement A structured approach: four or five steps? The nature of the inquiry The content of the inquiry A summary of the property pathway post-Stanford Conclusion Chapter 14

Property Proceedings: The Exercise of the Discretion Introduction The exercise of the discretion The alteration of property interests Identification of contributions Financial contributions Non-financial contributions Contributions to the welfare of the family Assessing contributions Global or asset-by-asset approach? The rise of the partnership approach and the fall of ‘special contributions’ Equality as a starting point rejected Greater value (in theory) placed on ‘women’s

work’ The rise and fall of ‘special’ contributions The rise and rise of special contributions The fall and fall of special contributions Financial misconduct Family violence The Kennon decision After Kennon Contributions Initial contributions Post-separation contributions Gifts Inheritances Windfalls Compensation awards Additional factors Section 79(4)(d)/90SM(4)(d): effect on earning capacity Section 79(4)(e)/90SM(4)(e): other factors Increased emphasis on ‘other factors’ Section 79(4)(f)/90SM4(f): order affecting a party or child Section 79(4)(g)/90SM(4)(g): child support The contemporary approach to additional factors A ‘just and equitable’ order Forms of order for property adjustment

Relationship between spousal maintenance and property adjustment Conclusion Chapter 15

Property Proceedings: Specific Issues Introduction Superannuation Superannuation before the 2002 amendments Background information on superannuation Superannuation after the 2002 amendments Splitting orders and flagging orders Is superannuation property? Superannuation agreements Injunctions Introduction Injunctions restraining the disposition of property Orders and injunctions against third parties Situation after the commencement of Pt VIIIAA Practical implications of Pt VIIIAA Section 85A Setting aside transactions Position of the bona fide purchaser Conclusion Financial agreements and consent orders Orders made with the consent of the parties Maintenance agreements under the FLA (1976– 2000)

Financial agreements under the FLA (2000– present) Requirements of financial agreements that are enforceable between the parties What may be included in a financial agreement Spousal maintenance Other matters relating to financial agreements Setting aside a financial agreement A binding financial agreement that ousts the jurisdiction of the courts Family Law Amendment (Financial Agreements and Other Measures) Bill 2015 (Cth) Bankruptcy and the FLA Introduction: Becoming bankrupt in the context of family law proceedings Bankruptcy and Family Law Legislation Amendment Act 2005 (Cth) Setting aside property orders Introduction Miscarriage of justice Impracticability Default Exceptional circumstances relating to the care, welfare and development of a child Consent to vary Varying orders made with the consent of the parties Conclusion

Index

[page 1]

1 LAW, SOCIETY AND THE FAMILY ___________________________

Introduction 1.1 As with many areas of law, what is called ‘family law’ in Australia is somewhat arbitrary. The categorisation of law into discrete topics has its uses, though it must be remembered that, in practice, the boundaries of law are not quite so neat. Although there are many important and interesting laws that regulate families and interact with ‘family law’, in this book we concern ourselves predominantly with those laws that have grown out of the laws on marriage, and later, divorce. Given the dramatic changes in social attitudes to marriage, divorce, parenting etc. in the last century, it is unsurprising that this area of law has seen very regular and radical reform; indeed, so much so that it is impossible in a book such as this to chart in detail the history of family law legislation in Australia. However, it is important to understand the historical context of Australia’s current family law and so we will consider (in this chapter and elsewhere where relevant) the more distant historical origins of Australian family law, as well as the key developments that have led us to our present legislative position. Many would consider families as a foundational unit within society and thus would consider family law — which regulates

that unit to some extent — as pivotal in influencing the way society develops. While there is an inevitable ‘chicken and egg’ aspect to such an argument, it is nonetheless important to consider the social context of family law. In this chapter we will look at recent data on Australian families to consider how this ‘foundational unit’ has changed over time and provide some background to the rise, and increased acceptance, of less traditional family forms. We will also introduce the topic of family violence as, unfortunately, addressing issues of family violence is ‘core business’ for Australia’s family courts. Naturally, for many people, their interaction with family law will occur when their own interpersonal relationship breaks down. For those working in family law, it is important to keep in mind the very particular psychological setting in which many family law disputes are negotiated. In this chapter we therefore also consider the psychological context for parents and children of family breakdown. In Chapter 9 we consider in more detail the psychological impacts for children of different post-separation parenting arrangements, in the context of discussing how judges exercise their discretion when resolving parenting disputes. [page 2]

A short history of English marriage and divorce law Marriage 1.2 As with other areas of law, Australian family law owes much to its English heritage. Since the English family was traditionally based on marriage, that ‘institution’ has been central to the development of family law, with the state purporting to give it full

protection (though historical notions of how best to protect families formed by marriage may not equate with modern ideas on the subject). In early Christianity, marriage was a private affair, transacted between the parties and regarded as of little interest to others. Marriage was simply constituted by the parties saying to each other that they were regarding themselves as married to each other (per verba de praesenti) or that they intended taking each other as husband and wife (per verba de futuro). There was no need for witnesses or parental consent, nor was there any system of registration. In a simple village society where everyone knew everyone else, there was no need for any greater formality. It seems that dissolution was similarly simple, though there were some economic sanctions. The community always had an interest in ensuring that all its members were suitably provided for. This meant, typically, that the husband had to provide for his wife and his offspring even if he abandoned them, unless the wife went with another man who then became economically responsible for her. 1.3 It was not until about the seventh century CE that the church (meaning the Roman Catholic Church) began to take an interest in marriage, as part of its warfare against the ‘sins of the flesh’. By the twelfth century, marriage law had become a matter of church jurisdiction. However, even then no need for special formalities existed. It was only in 1545 that the church, at the Council of Trent, formulated rules that were to govern the formation of marriage from then on. These rules, among other things, required the presence of an ordained priest. 1.4 In England, however, the Roman Catholic Church had no jurisdiction after the Reformation and consequently the previous pre-Tridentine state of affairs continued to exist until the Clandestine Marriages Act of 1753 (UK) (Lord Hardwicke’s Act). Prior to that Act, although marriage was indissoluble, it was comparatively easy to avoid the consequences of being married. This could happen by one of the parties, usually the husband,

absconding and moving to a different part of the country, or even by outright denial that a marriage had taken place at all. If one of the parties contracted another marriage, it was technically bigamous. However, bigamy did not become a felony until 1603, and in the absence of a registration system it was not easy to prove. No central system of registration existed. The only evidence was the parish registers, but these were fairly haphazard and in any case, marriage did not necessarily have to be celebrated in church. The Registration Act was not enacted until 1837. [page 3] 1.5 The whole set-up was reasonably adequate in a village society based on the parish, with poor transportation and a relatively immobile population. The parish was the powerful organ of local government, including what later became known as social welfare, which included the care of the elderly, the sick and the poor. Concern was primarily economic, ensuring that everyone had the means of supporting themselves. A man was responsible for his wife and children; if he could not look after them, or was not there, or was dead, then they became the responsibility of the parish. It has been well said that the history of English divorce law was conditioned by three factors: wealth, the church and the aristocracy. Marriage was the means for handing on wealth, titles and estates within the families of the gentry and other landowning classes. Among these groups there was a fear, amounting to an obsession, of having ‘spurious offspring’ introduced into the family. For example, if one’s wife were seduced by, say, the stable boy or the gardener, that could introduce ‘spurious offspring’ into one’s family: a child who was not that of the husband. Eventually, the interloper would walk off with one’s name, title, estates and other wealth. The threat of such a situation for the aristocracy and the propertied classes as a whole had to be averted at all costs.

1.6 With the Industrial Revolution came greater mobility, and the opportunity of finding employment in the new towns and factories. A man could disappear and leave his family to be kept by the parish, while the absconder could contract a bigamous marriage elsewhere and start creating new family responsibilities. Before 1857, divorce as we know it did not exist, but there were always cases of one party, usually the husband, growing tired of his wife and wanting to get out of the marriage. Different expedients were resorted to in order to escape marital responsibility. One such method of popular ‘divorce’ was that of ‘selling’ one’s wife. An instance occurs in Thomas Hardy’s novel, The Mayor of Casterbridge.1 Ivy Pinchbeck relates another graphic account in Women Workers and the Industrial Revolution 1750– 1850,2 where the officers of a parish organised such a sale in order to reduce the number of poor persons whom the parish had to look after. The officers provided the intended purchaser with the money (one shilling) with which he would buy the woman, which he duly did. He would then become financially responsible for her, which meant that she would no longer be a liability on the parish. The parish officers were so pleased with the success of their scheme that they put up additional money for a wedding feast for the woman and her new ‘husband’. Unfortunately for the scheme, it ultimately proved unsuccessful. In time, the new husband grew tired of the woman and, having ascertained that his ‘marriage’ was bigamous, and therefore not binding, duly deserted her. The parish was thus once more compelled to take the woman into its care. [page 4] This anecdote, most likely true, is a poignant illustration of the early degraded status of women who were entirely dependent on the support of a man, in the absence of whom they became an unwanted burden on a less-than-willing community. It also

demonstrates the essentially financial character of marriage as an institution. It shows how the indissolubility of marriage drove those who could not afford the expense of obtaining a parliamentary divorce (see 1.11) to expedients not recognised by the law. It further shows how those expedients were (a) widely known, (b) connived at by minor officialdom, and (c) legally ineffective. Finally, it shows how women who were unfortunate enough to have lost, or never to have found, a male ‘protector’ in the form of a husband were regarded as economic liabilities. To expect them to have been treated as persons in their own right, or with anything amounting to personal autonomy, would have been to expect something that was to take more than another century to evolve. One can only imagine how demeaning it must have felt for a woman to be shunted from parish to parish and from man to man, simply in order to balance some local authority’s books.

Marriage breakdown and its early remedies 1.7 Even before divorce in the modern sense became available, there were other methods of ending a marriage. Official attitudes were all against this; indissolubility was believed to uphold the sanctity of marriage and was therefore a non-negotiable part of the general package of national beliefs. Still, subterfuges were used to end marriages. In the circumstances, if a man wanted to be rid of his wife, the following ‘remedies’ were available. These did not favour equally all strata of society.

Annulment 1.8 Perhaps the most popular remedy was annulment — the legal setting aside of a marriage because it was tainted by some flaw. It was certainly not as expensive as divorce by Act of Parliament. By the time of Henry VIII, civil as well as religious annulment of a marriage was available, albeit usually only to a

man. Annulment enabled the parties to remarry, though it rendered any children illegitimate. Today annulment of a marriage is rare, but this was not so in medieval times. If a person could persuade a court that the marriage was tainted by falling within one of the categories of nullity (see below; and see 6.14ff for the modern categories of nullity), it meant that no marriage had ever come into existence — it was void. Once that fact had been recognised, the supposed ‘marriage’ could be set aside by a court order. 1.9 A marriage was void if there was an impediment to its formation. The most obvious impediment arose where one of the parties was already married. Another impediment existed if the parties were too closely related. This could occur if they were related by consanguinity (blood relationship) or by affinity (relationship [page 5] by marriage). Prior to the Reformation, under the Roman Catholic Church the ecclesiastical lawyers developed quite elaborate rules about these impediments to the marriage relationship. These rules were described by that great English legal historian, Frederick Maitland, as a ‘calculus of kinship’ and ‘a maze of flighty fancies and misapplied logic’.3 Joseph Jackson QC has described the rules of affinity specifically as ‘a mixture of mathematics and mysticism’.4 1.10 Under these rules, people who were related by what we would regard as fairly distant family relationships were prohibited from marrying each other. If one of the parties had had sexual intercourse with a near relative of the other, or even, premaritally with that other party, that was enough to raise the impediment. A relationship akin to a blood relationship was then deemed to exist

between the parties, rendering marriage between them incestuous, and therefore unlawful. If such a relationship was not obvious or was unknown at the time, or even if the parties simply chose to ignore it and no one raised any objection at the time of the marriage, the marriage could be celebrated, and possibly never be disturbed during the parties’ lifetime. Then, if for any reason, one of them wanted it set aside, she (or more usually he) needed only to prove the impediment and, on coming before the ecclesiastical court, the marriage was liable to be declared null and void. The 1912 Royal Commission on Divorce and Matrimonial Causes (UK) commented on these rules with a quotation from the prominent ecclesiastical court judge, Sir Lewis Dibdin: These elaborate and highly artificial rules produced a system under which marriages theoretically indissoluble, if originally valid, could practically be got rid of by being declared null ab initio on account of the impediment of relationship. This relationship might consist in some remote or fanciful connection, between the parties or their godparents, unknown to either of them until the desire to find a way out of an irksome union, suggested minute search into pedigrees for obstacles — a search which somehow seems to have been generally successful.

A prominent example of the device of nullity based on affinity was that of Henry VIII, who used it in the course of his marital adventures. Having battled to secure the dubious annulment of his marriage to first wife, Catherine of Aragon, on the basis that she had been married to his older brother, Henry VIII used the device again when he ‘remembered’ that he had had sexual relations with Anne [page 6] Boleyn’s elder sister, Mary, before his marriage to Anne. His marriage to Anne was therefore incestuous; this gave him a valid ground for having it annulled.5

Parliamentary divorce 1.11 Parliamentary divorce seems to have been occurring for about 250 to 300 years before the first Divorce Act in England — the Divorce and Matrimonial Causes Act 1857 (UK) — came into force. Its rationale was expressed by the Earl of Macclesfield in 1697: … it would be a most unreasonable hardship upon him … that for his wife’s fault he should be deprived of the common privilege of every freeman in the world, to have an heir of his own body to inherit what he possessed.6

This quotation illustrates the predominant interest of the wealthy and land-owning classes in England in being able to set aside a marriage on dynastic grounds because of the need for an heir to titles and property. The ‘common privilege of every freeman’ was at stake. The interests of the common man or woman were not something that would have occurred to members of the ruling classes to consider. Nor, of course, was it considered plausible that infertility lay with the husband! 1.12 There was, however, no legal structure at that time for effecting a divorce as we know it. The ecclesiastical courts could not grant a divorce a vinculo: literally, from the chains (of marriage; ie from the marriage relationship). If the marriage was valid and not void, all they could give was a divorce a mensa et thoro (from bed and board). This was later called a ‘judicial separation’ and existed until 1976, when it was abolished by the Family Law Act 1975 (Cth) (FLA).7 It was a court order enabling a wife to live apart from her husband and still be entitled to maintenance from him. If she lived apart from him without such an order, she risked being regarded as a deserting party and, as such, was not entitled to anything. It did not, however, sever the marriage bond; the parties remained married to each other and neither was able to enter into another marriage. 1.13

To get a parliamentary divorce, a threefold procedure had

to be gone through. First, a divorce a mensa et thoro had to be obtained from the ecclesiastical court. To achieve this it was necessary, first, to be able to identify an adulterer (the basis for the divorce). This was not always an easy matter. The next step was to sue that person for damages in the common law courts. The cause of action [page 7] was quaintly called criminal conversation or crim con for short. It was based on the injury caused to the ‘innocent’ spouse, which in reported cases was usually the husband. The loss was both economic, because of loss of services, and to feelings. It was therefore a common practice to exaggerate enormously the virtues and abilities of the wife (as a household manager, child-bearer and carer), for the greater her virtue before her fall, the greater the loss to her husband after that calamitous event and, consequently, the damages he could claim from the adulterer. Again, this was an illustration of the value of a wife as her husband’s chattel. Once these two steps had been completed, the plaintiff could petition the House of Lords for a divorce a vinculo. The petition would be presented to the House of Lords in much the same way as it would later in the Divorce Court, for when divorce became available through the common law courts in 1857, the grounds and procedure were modelled on the procedure in the House of Lords. On proof of the wife’s adultery being made out and after legal argument, the House could grant the divorce (the House of Commons generally followed the House of Lords, without fresh argument being required). As a result, an Act of Parliament was passed to the specific effect of dissolving the particular marriage and enabling the parties to marry again. This latter element was, of course, the most important part of

the Act and the reason why the action was instituted in the first place. 1.14 It is obvious that this was a very male-centric procedure. It was based on the damage caused to a man (of property) who was being deprived of the chance of a legal heir to whom to pass on his estates and titles. He had been deprived of the services of his wife, and of her womb, to which he had a legal claim for the production of his heirs. Not only had his honour and reputation been soiled, but since divorce was unavailable, he was deprived of the chance of marriage to another woman who might be able to produce offspring. In the years during which parliamentary divorce was available, in all something like 300 such divorces were granted by parliament. Of these, all but four were granted to men.

Divorce for the common man (and woman?) 1.15 The remaining ‘remedies’ of ‘wife sale’, ‘disappearance’ and ‘living in sin’ were very much also-rans in this litany of matrimonial remedies. The first has already been described: see 1.6. Both ‘wife sale’ and ‘disappearance’ might also involve one or both parties committing bigamy by remarrying while legally still married. As has been mentioned, however, the question of proof of bigamy was not an easy one, particularly before there was a national system of marriage registration. The alternative was the third popular remedy, that of ‘living in sin’. This was also resorted to by the wealthy where, for example, they had not been able to go through the procedure for parliamentary divorce outlined above. 1.16 Not only then was there a double standard discriminating against women, there was also discrimination against the poor. Each of the steps described [page 8]

(the divorce a mensa et thoro, the suit for damages and, last, the proceedings in the House of Lords for a divorce a vinculo) required the attendance of lawyers and the presentation of legal argument. Such costs were estimated to be in excess of £1000, which obviously put the remedy out of reach of all but the extremely well-off.8 What then were the poor to do? An oft-quoted anecdote of some remarks by Maule J in 1845 draws attention to the incongruity of the existing ‘remedy’ of parliamentary divorce so far as the labouring poor were concerned. Maule J was a well-known and humane English judge, who was obliged to sentence a labourer who had been convicted of bigamy. This was some 12 years before divorce became available through the ordinary courts of law. The judge addressed the prisoner, Thomas Hall, who had bigamously ‘married’ a woman to help him look after his children after his own wife had absconded with another man. In castigating Hall for his unlawful conduct, the judge pointed out what he should have done: The law in its wisdom points out a means by which you might rid yourself from further association with a woman who had dishonoured you; but you did not think proper to adopt it. I will tell you what that process is. You ought first to have brought an action against your wife’s seducer if you could have discovered him; that might have cost you money, and you say you are a poor working man, but that is not the fault of the law. You would then be obliged to prove by evidence your wife’s criminality in a Court of Justice, and thus obtain a verdict with damages against the defendant, who was not unlikely to turn out a pauper … You must then have gone, with your verdict in your hand, to the House of Lords for a divorce. It would cost you perhaps 5 or 600 pounds, and you do not seem to be worth as many pence. But it is the boast of the law that it is impartial, and makes no difference between the rich and the poor. The wealthiest man in the kingdom would have had to pay no less than that sum for the same luxury; so that you would have no reason to complain.9

To show what he thought of the law, his Honour sentenced the prisoner to imprisonment until the ‘rising of the court’ that day, then to be released. 1.17

The law was full of double standards in this area. While in

official pronouncements those in government or the church never failed to remind people of the virtues of family life and to condemn any deviation from the straight and narrow, the authorities themselves did not always follow these worthy precepts. Thus if a man and his family had become paupers — often through no fault of their own — and the parish was obliged to look after them, they would be consigned [page 9] to the workhouse where they lived in conditions barely distinguishable from imprisonment. Husband and wife were rigorously separated from each other — lest they procreated further paupers for the parish to look after. Children were separated from their parents and barely allowed to see them. Dickens describes conditions in one workhouse, known as the Bastille, where on Sunday afternoons children were permitted to visit their mothers in the women’s room for one hour. When this happened, ‘bedlam was let loose for an hour’.10 A similar double standard existed in relation to convicts and their shipment to the colonies. For the most part, a man’s transportation overseas broke up his family, as there was no arrangement for them to be sent out with him or after him. Even if he got his ticket of leave, he was not usually entitled to return to the UK. In any case, he would not have the money for his fare, nor would his family have the money to follow him out to Australia. If he was released and he took up with another woman in the colonies, there seems to have been little impediment to his contracting a de facto or even a ‘legal’ marriage. Technically, he would be committing bigamy, but there seems to have been little or no attempt made to punish him for it, or even to find out about it. Consequently, the English authorities did not carry the lip service they paid to the sanctity of the family to circumstances where paupers or convicts were concerned. It is evidence of the

very different treatment of those who fell outside the confines of accepted conduct, for whatever reason. Indeed, such people were often treated as bordering on subhuman. 1.18 It cannot be overlooked that these stratagems were normally initiated by men. Indeed the first, that of wife sale, was so by nature and it would have been unthinkable for a woman to have sold her husband. Thus, as we now know, until relatively recent times, family life and the laws that regulated it were extremely male-dominated, to the grave disadvantage of women.

The coming of divorce 1.19 The incident of Maule J and Thomas Hall, whether apocryphal or not, shows that by the middle of the nineteenth century enlightened opinion had begun to question the absence of divorce by focusing on aspects where that absence caused hardship to many men and women. It was quite clear what his Honour thought of the state of the law in cases like this. It was just one of many straws in the wind leading up to the institution of legal divorce. In 1850, a Royal Commission was set up under Lord Campbell in England to investigate the whole question and its report led directly to the enactment of the [page 10] Divorce and Matrimonial Causes Act of 1857 (UK). Several strands in establishment thinking had gone against making divorce available. These were: 1.

Economic: this was to ensure that those responsible for the upkeep of dependent persons (women and children) bore those responsibilities and did not let those persons become a

burden on the community. 2.

3.

Social stability: often enough it was said that the family was ‘the pillar of society’ and that the family rested on marriage. Hence, it was thought, facilitating the destruction of marriage was taking the first step towards the destruction of society and towards anarchy. Religious: the mainstream churches all supported indissolubility: ‘whom God has joined together, let no man put asunder.’ This later came to be seen as a facile slogan. When all was said and done, it was people themselves who ‘put themselves together’ — or their parents or families, or economic expediency (as in upholding dynastic considerations), or social pressures (as in the notorious ‘shotgun weddings’, where a couple would marry only to save their expected child from illegitimacy).

1.20 It was the social, economic and demographic upheavals of the Industrial Revolution that led to increasing demands for change in this area. However, it was not going to be possible to effect the revolutionary change of making marriage dissoluble without drastic grounds being provided. To unmake the solemn, life-long contract that had been ‘made in heaven’, something had to occur that went to the very root of that contract if it was to be invalidated. Thus it was that nothing short of adultery — a notional breaking of those solemn marriage vows — would suffice before marriage could be set aside. This thinking had a strong historical attachment to notions of fault. This can be seen, for example, in the denial of a divorce to an applicant because of the notion of ‘recrimination’ or compensatio criminis, where both spouses had been guilty of adultery. It was regarded as ‘a set-off of equal guilt’ or ‘mutual compensation’, and so neither was then entitled to a divorce. As Lord Stowell put it in Beeby v Beeby11 (decided before the new divorce legislation): It is not unfitting if he, who is the guardian of the purity of his own house, has

converted it into a brothel, that he should not be allowed to complain of the pollution which he himself has introduced; if he, who has first violated his marriage vow, should be barred of his remedy: the parties may live together, and find sources of mutual forgiveness in the humiliation of mutual guilt.12

It was something of an irony that where both parties were unhappy, it seemed even less likely they could obtain a divorce, but then again, these early laws were not about the harmonious separation of unhappily married couples. Further, they [page 11] were not designed to improve the quality of such a marriage, or the quality of life of the parties or their children. 1.21 So, when divorce became more widely available, it was still very limited. Divorce was possible only where fault could be established, and that meant adultery. However, the double standard persisted. While a husband could divorce his wife for simple adultery, a wife could only get a divorce if she could prove her husband’s aggravated adultery. That meant adultery coupled with incest, bigamy, cruelty or desertion for two years, or his conviction for sodomy or bestiality. The main reason for this double standard was again the biological one: the danger of ‘spurious offspring’ being conceived. The basis for this philosophy was still the preoccupation of those making the laws with dynastic and inheritance considerations. Right up to this time, and the time of the Industrial Revolution, little concern was felt for the matrimonial arrangements of the poor, who had neither titles nor wealth to pass on to their offspring. Being ‘spurious’ in those circumstances meant nothing. Another consideration entered into official thinking concerning the family about the middle of the nineteenth century — paternalistic concern for those less well-off than ourselves. ‘The poor’, ‘orphans’, ‘fallen women’ and ‘the criminal classes’ became

the objects of societal ‘do-goodism’ and official concern. The ‘Lady Bountiful’ became the spearhead of social reform. At the same time, the Divorce and Matrimonial Causes Act 1857 (UK) took divorce and matrimonial causes out of the hands of the ecclesiastical courts. It created a new Court for Divorce and Matrimonial Causes. This was later to become part of the Probate, Divorce and Admiralty (PDA) Jurisdiction of the High Court of Justice, under the UK Judicature Act 1873. After 1970, it became the Family Division of the High Court of Justice. 1.22 So far, as we have seen, divorce had been purely a faultbased remedy. The official reasoning for this was based on a philosophy mentioned above: the family is the cornerstone of society and marriage is the basis of the family. It was therefore necessary to preserve marriage at all costs, if society was not going to disintegrate. As a result, marriage had to be kept, so far as possible, indissoluble or, to quote that famous ecclesiastical judge Lord Stowell in the case of Evans v Evans:13 For though in particular cases the repugnance of the law to dissolve the obligations of matrimonial cohabitation may operate with great severity upon individuals, yet it must be carefully remembered that the general happiness of the married life is secured by its indissolubility.

[page 12] 1.23 The only exception to that principle was the commission of a basic and heinous transgression against the ‘marriage contract’ by one of the parties to it. It had to be so serious as to go to the very heart of the institution of marriage. In the eyes of the establishment of the day, there was only one thing that to date had answered this description and that was adultery. The Royal Commission into the Law of Divorce, reporting in 1853, confirmed this view: Adultery may be, and in Protestant countries it is, generally, deemed a sufficient

reason for rescinding the union, because it is an offence which destroys altogether the primary objects of the married state, by introducing, in some instances, a confusion of offspring; by cutting off, in others, all hope of succession; and by diverting, in all, the affections and feelings into strange channels, which reason and religion forbid them to flow in. But these evils cannot necessarily be predicated as the certain results of the other cases [ie wilful desertion, cruelty]; for in them at least there is always a possibility of future reconciliation; and if it be possible, it is for the interests, the happiness, the well-being of society — especially that part of it which is most exposed and least protected — the women and children — that in such a matter the door of reconciliation should not be closed. We are, therefore, of opinion that Divorces a vinculo should not be extended beyond cases of adultery.14

Where this happened, the party offended against — the ‘innocent party’ — was given a right as against the ‘guilty party’ to have the marriage dissolved. That right was not given to the guilty party, and the innocent party could assert it only upon strict proof of the facts of the transgression. The consequences flowing from this were that ancillary matters such as custody, property and maintenance were all practically decided in favour of the innocent party, at first as a matter of course. In time, this approach began to cause problems. Guilty parties, who were divorced by their spouses, were free to marry again. However, innocent spouses who had been transgressed against were not always prepared to give their guilty spouses their freedom. Then the guilty party was unable to remarry or enter into a new relationship unless prepared to commit bigamy or ‘live in sin’. This presented society with a real dilemma because unmarried cohabitation was perceived as almost as great an evil as adultery. Moreover, it led to the procreation of ‘illegitimate’ children. Further, should the unmarried cohabitants break up, there was not the same measure of certainty as in a legal marriage of pursuing the man for the financial support of the woman and children. 1.24 While the 1857 Act had made divorce in the full sense possible for the first time, and had secularised it by taking it away from the ecclesiastical courts, it perpetuated and institutionalised gender inequality. We have already noted the double standards embodied in the Act: one law for the man and one law for the

[page 13] woman in the ground for divorce (see 1.21). The rationale was the simple fact of the biological difference between the sexes. As it was expressed by Lord Cranworth LC in the 1857 House of Lords debates on the Divorce Act: A wife might, without any loss of caste, and possibly with reference to the interests of her children, or even of her husband, condone an act of adultery on the part of the husband; but a husband could not possibly condone a similar act on the part of the wife. No one would venture to suggest that a husband could possibly do so, and for this, among other reasons … that the adultery of the wife might be the means of palming spurious offspring upon the husband, while the adultery of the husband could have no such effect with regard to the wife.15

It could be said that the law was only carrying into effect the prevailing view of women’s adultery, but this was in itself a selfperpetuating attitude. Women were the subordinate sex, the ‘weaker vessel’, ‘relative creatures’. The new law simply took over from that prevailing in relation to House of Lords divorces. Again, the rationale was male-centric and related to dynastic and property considerations.

From fault to irretrievable breakdown Adultery 1.25 The law as it was enacted in 1857 remained substantially the same for the next half century, in that only one ground of divorce, adultery, remained available. In cases of desertion or cruelty, for instance, judicial separation was available; however, the marriage relationship was not severed, nor were the parties able to remarry. Lip service was still being paid to the possibility, remote as it usually was, of an eventual reconciliation and reunion between the parties. However, in the long run, the problems arising out of these increasingly numerous broken, but not severed, marriages became too great. People were forming ‘illicit’

unions and ‘illegitimate’ children were born, but it was often difficult or impossible to enforce the obligation of support on a provider, which left the state to pick up the tab. Where the coming of divorce had been facilitated by basing it, at least in part, on its punitive aspect, that was too restricted a view if it was to serve an adjustive function in society. As is often the case when a social reform is put in place, anomalies were beginning to be perceived and it became necessary to think of further extensions. 1.26 The notion of ‘irretrievable breakdown’ of marriage appeared early in the twentieth century. This new approach looked to the substance, rather than the empty form, of a relationship. It was particularly noticeable in the exercise of the discretion. As mentioned in connection with Beeby v Beeby16 (see 1.20), where a petitioner sought a divorce from a spouse on the ground of adultery, the [page 14] commission of adultery by the petitioner, as well, originally negated the right to a divorce on the ground of ‘equal guilt’. However, over the years there were isolated cases where the courts did grant a divorce to an adulterous petitioner. As Shearman J expressed it in Marven v Marven,17 it was finally realised that: If I refuse a decree I should in a way be encouraging the continuance of the adulterous connexion … If the Court exercises its discretion it regularises two courses of adultery, which to laymen appears very wrong. If it refuses to do so it appears to give a general encouragement to marital infidelity.

It was also realised that it was in the best interests of any children involved, and of the community as a whole, if the actual matrimonial or sexual arrangements of members of the community could be regularised. An adulterous petitioner could

thus get a divorce, even though they might be penalised as regards maintenance liabilities and property dispositions. 1.27 The first change of any significance in the laws of divorce occurred in the UK in 1923, when the double standard that had discriminated against wives in the application of the adultery ground was removed. This same double standard, incidentally, remained for longer in other jurisdictions, such as the state of Victoria where it was only swept away by the FLA in 1976.

Cruelty, desertion and incurable insanity 1.28 The next important step forward occurred in 1937. Restricting the availability of divorce solely to the ground of adultery had been attracting a good deal of criticism and there was a movement afoot towards widening the grounds. There had been a UK Royal Commission in 1912 (the Gorell Barnes Commission) which had recommended a widening of the grounds, but its recommendations had been largely ignored at the time. In the 1930s, one of the most effective voices in favour of reform was that of the well-known writer and Member of Parliament, AP (later Sir Alan) Herbert, who introduced a private member’s Bill with a view to extending the grounds of divorce (he later wrote about this in The Ayes Have It (1937)).18 1.29 The Matrimonial Causes Act 1937 (UK) (also referred to as Herbert’s Act) added the divorce grounds of cruelty, desertion for three years and incurable insanity to that of adultery. The third of these new grounds was particularly important. It was the first step away from fault and towards irretrievable breakdown. The significance of this Act was that it looked at the reality of the relationship of the parties, instead of searching for a guilty party. The courts, too, were beginning to look at the question of breakdown in a number of cases in the early part of the twentieth

century, to test the reality of a given marriage relationship. This paved [page 15] the way towards the eventual conceptual acceptance of irretrievable breakdown as the sole determinant in judging a relationship. The concept was given judicial endorsement by the House of Lords in Blunt v Blunt19 in 1943: see 1.30. The two other new grounds, cruelty and desertion for three years, were both clearly fault grounds, but significantly they were not regarded as such serious transgressions against the marriage contract as adultery, which was always a fundamental breach. Unlike adultery, they also required intent: to be cruel, or, in the case of desertion simpliciter, there had to be animus deserendi, an intention to desert.20 Over time, the law even found a way around this excessive artificiality with the ‘invention’ of ‘constructive desertion’.21 This enabled a spouse to use the ground of desertion against the other spouse, even though that other spouse was not the one who had left, but had instead forced the complaining spouse to leave. Further, where in ordinary desertion there was the legal requirement of an ‘intent to desert’, so there had to be in constructive desertion a corresponding ‘expulsive intent’. Both these intents usually had to be inferred from more or less conclusive circumstances. Again, it was an example of where the dominant consideration of breakdown was cast in the form of fault. While society was beginning to recognise irretrievable breakdown, it was still paying lip service to fault as the basis for divorce. 1.30 There were other public policy considerations against such a restrictive approach to the availability of divorce. The very concept and meaning of marriage were being seriously eroded. People who were married to each other were not living together,

but living with new partners to whom they were not married. This state of affairs came at last to be seen as harmful to the continued existence of marriage as an institution. The concern this caused was given official recognition by the House of Lords in the 1943 case of Blunt v Blunt,22 where Lord Simon LC referred to: … the interest of the community at large, to be judged by maintaining a true balance between respect for the binding sanctity of marriage and the social considerations which make it contrary to public policy to insist on the maintenance of a union which has utterly broken down.23

The High Court of Australia affirmed the principle in Henderson & Henderson.24 [page 16]

Irretrievable breakdown 1.31 A further Royal Commission on Marriage and Divorce25 — the Morton Commission — reported in 1956. Nine of its 19 members recommended complete breakdown as an additional ground. Another nine were opposed to it. The 19th member, Lord Walker, recommended irretrievable breakdown as the sole ground. In spite of what might have been regarded as a majority in favour of the recognition of irretrievable breakdown, the proposal was regarded as too controversial, so nothing was done. However, irretrievable breakdown was on the march. The next development was the modification in 1964 of the ground of cruelty. Cruelty had been regarded as a fault ground par excellence. As such, it had included as an essential ingredient an intent to direct cruel conduct at the other party. This meant having to prove an intent to be cruel which was directed at the party offended against, though the law was prepared to allow reliance on the old legal fiction, that everyone is presumed to intend the consequences of their own actions. In other words, intent could be inferred from conduct.

1.32 In two 1964 House of Lords’ decisions, Gollins v Gollins26 and Williams v Williams,27 there was a departure from the requirement to prove intent in cruelty. The emphasis now shifted to the protection of the spouse offended against according to the principle in Russell v Russell28 that ‘there must be danger to life, limb, or health, bodily or mental, or a reasonable apprehension of it’. 1.33 The failure to adopt irretrievable breakdown after the Morton Commission was only a temporary setback. Shortly after Gollins and Williams, the Church of England entered the debate. The Archbishop of Canterbury set up a committee to inquire into irretrievable breakdown. The committee, which comprised various people of talent, including church members, lawyers and judges, reported in 1966 under the title, Putting Asunder.29 This report recommended the adoption of the breakdown principle as the basis for divorce. Thus far, it followed the same line of thinking as that in the Morton Commission. However, it was the suggested method of implementing the proposal that proved controversial. It was proposed that to establish the presence of breakdown, there would in each case be a judicial inquiry that would examine all the relevant circumstances of the particular marriage under review. Only if irretrievable breakdown was held to have been established by such a judicial inquiry would a divorce be granted. [page 17] The impracticability of this solution was obvious. The time and resources required would have been immense, and judges were not trained in the behavioural sciences and were thus not equipped for such an inquiry. 1.34 Putting Asunder was referred by the (UK) government to the newly established Law Commission under Lord Scarman. The Commission’s report, Reform of the Grounds of Divorce: The Field of

Choice,30 was delivered in 1966. The gist of its recommendations was the adoption of the ground of irretrievable breakdown. The trial of breakdown by a court was rejected for two main reasons: one was conceptual, the other logistical. Breakdown was said to be not a ‘justiciable issue’ and not easily triable in a court of law;31 to do so would at least treble the time taken by courts for divorce. Had it been possible to foresee how common divorce would become, this objection would have been even stronger. The Commission’s suggestion instead was to institute a period of separation, on completion of which the marriage would be deemed to have broken down. Preferably, such a period should be reasonably short, such as six months. Here it is that we see the UK considering a basis for divorce recognisable to modern Australians. However, changes were not made to UK divorce law until 1973 and these changes did not go as far as the recommendations of the Law Commission.32

Developing an Australian family law Introduction 1.35 Early colonial and state law followed the UK model discussed above. Indeed, our early family laws adopted the UK approach without departing from it in any material way. This is demonstrated by the relatively quick adoption ‘down under’ of the UK Divorce and Matrimonial Causes Act 1857. When the six Australian colonies federated as states to form the Commonwealth of Australia in 1901, the Commonwealth Constitution conferred on the Commonwealth Parliament a power to make laws with respect to a number of enumerated matters. This was done in s 51, which contained 39 placita, or paragraphs, to which another one was later added by referendum.

Subject matters not conferred on the Commonwealth remained largely within the power of the states. Section 51 gives the Commonwealth legislative power on two relevant topics: (xxi) marriage; (xxii) divorce and matrimonial causes, and in relation thereto, parental rights and the custody and guardianship of infants.

[page 18] This power is expanded by the ‘incidental’ power in placitum (xxxix), which relates to ‘matters incidental to the execution of any power vested by the Constitution’ in the Commonwealth. However, like other powers conferred on the Commonwealth, placita (xxi) and (xxii) are facultative and not mandatory. They enable the Commonwealth to legislate on the subjects conferred on it if it sees fit, but they do not compel it to do so. For the first 60 years of its existence, the Commonwealth did not avail itself of these powers, apart from two or three insubstantial exceptions. As a result, the matters dealt with in placita (xxi) and (xxii) continued to be dealt with under state laws. There were, as a result, six separate legal systems of family law (and two in the two mainland territories). These systems all exhibited a generic similarity to one another. They had a common model in UK law and were administered by courts established in the UK style. 1.36 In spite of their common historical roots, as time went on state laws were to diverge to a considerable extent. For example, by 1959 Queensland had five grounds for divorce, Tasmania nine and there were 13 in South Australia. At that stage, the UK had seven. With three exceptions, these were all fault grounds. Insanity was not a ground in New South Wales; and presumption of death existed as a ground in Queensland, South Australia and Western Australia.

One significant difference existed in South Australia and Western Australia — both jurisdictions had, by this time, a ground of separation without fault. South Australia first introduced this ground in 1938, based on an even earlier provision introduced in New Zealand in 1920; and Western Australia had followed suit in 1945. It was to become the model for the five-year separation ground in the Matrimonial Causes Act 1959 (Cth). Developments in Australia increasingly took a different course from that in the UK. One reason was constitutional. This matter is dealt with in more detail in Chapter 4, but for present purposes we mention some of the basic considerations here.

Matrimonial Causes Act 1959 (Cth) 1.37 From 1959 onwards, the Commonwealth decided to exercise its constitutional powers by enacting first, the Matrimonial Causes Act 1959, and shortly afterwards, the Marriage Act 1961. Both Acts came into full operation in 1961 and 1963 respectively. The effect on the law of marriage was relatively unspectacular, as the changes in substantive law were not great. Moreover, the Commonwealth continued to rely on state officials for dealing with registration of marriage. One change was that children born outside of marriage, ‘ex-nuptially’, were now made legitimate by the subsequent marriage of their parents.33 [page 19] 1.38 In the law of divorce and matrimonial causes, however, the changes were considerable. The Matrimonial Causes Act created an Australian — as distinct from a state — domicile for the purpose of proceedings under the Act; it did not affect domicile for the purposes of any other law. The Act consolidated the laws of nullity and divorce of the states into one legal code which was applicable throughout Australia. To achieve uniformity, the Act aggregated

all the various divorce grounds of the states. As a result, there were now 14 grounds of divorce, where before there had been eight, nine or 12. The Act also covered so-called ‘ancillary’ matters, namely maintenance, property settlements and guardianship, custody and access in relation to the children of a marriage. However, these matters depended, jurisdictionally speaking, on the prior or concurrent existence of proceedings for ‘principal’ relief, namely divorce, nullity of marriage or declarations of validity: see Chapter 6. Where there were or had been no such proceedings for principal relief, the federal jurisdiction was not invoked. So, for example, parents not divorcing could not use the Commonwealth legislation to deal with their parenting or property disputes. Those ancillary matters not falling within federal jurisdiction remained matters of state law. Inconvenient though this jurisdictional dichotomy might have been, that inconvenience was mitigated by the fact that all family matters under federal law continued to be dealt with by state courts. This result was brought about by the investiture of state courts with federal jurisdiction by the Commonwealth — a timehonoured expedient under s 77(iii) of the Constitution that had been frequently followed in other areas. This avoided the need to create a new and concurrent system of federal courts. 1.39 With the advent in late 1972 of a federal Labor government committed to an ambitious and vigorous policy of legal and social reform, the time was ripe for a further review of divorce laws. The changes of 1959, advanced as they had seemed at the time, were now generally accepted. It was becoming evident that in some respects these laws no longer met the social requirements of the times. The 1959 legislation — which was so confidently characterised in 1968 as having reached ‘a peak of legislative excellence unequalled in the countries which have inherited the English tradition as to marriage and divorce’34 — was now considered not to have gone far enough. No doubt the

consolidation of the law, which the Matrimonial Causes Act 1959 brought with it, set the framework within which further and more radical reforms could be attempted. The incompleteness of the powers conferred on the Commonwealth by the Commonwealth Constitution is a shortcoming that became evident in its [page 20] assumption of power in relation to family law. These matters are discussed in detail in Chapter 4, but in summary the limits of federal legislative power have been largely overcome by the states referring powers to the Commonwealth.

Family Law Act 1975 (Cth) 1.40 The Family Law Act 1975 (Cth) (FLA) was largely the result of the initiative of the first Attorney-General in the Whitlam Federal Government, Senator Lionel Murphy QC, later the Hon Justice Murphy of the High Court. The Act is evidence of an attempt at a radical reorganisation of family law in Australia, although this could be done only within the constraints imposed by the Commonwealth Constitution. Even then, the scope of these innovations was at first cut down by the High Court in 1976 in Russell v Russell; Farrelly v Farrelly:35 see the discussion at 4.32–4.34. The Act’s principal achievements were a reform of the substantive law of divorce and ancillary matters, and the creation of a new federal court — the Family Court of Australia — to administer that law. The abolition of matrimonial fault as a basis for divorce was central to the Act. Underlying it was the proposition that ‘an enquiry into the cause of breakdown was not proper’.36

As a result, all previously existing 14 grounds of divorce were swept away and a single new ground of irretrievable breakdown of marriage took their place.37 The only way to establish irretrievable breakdown was by proving that the parties had ‘separated and thereafter lived separately and apart for a continuous period of not less than 12 months’.38 Proof of such separation set up a conclusive presumption that breakdown had occurred. This, and the administration of the ground, is dealt with in detail in Chapter 6. It is interesting to note that in taking this step Australia has gone much further than the UK. While the only ground for divorce in the UK is irretrievable breakdown of the marriage, this can only be established by proving one of five facts, three of which remain fault-based: adultery, desertion and the behaviour of the other party. Where the parties agree, separation of two years will suffice to prove the breakdown; however, where they do not, five years’ separation is still required.39 [page 21] 1.41 The number of divorces granted in 1975 on the grounds available under the Matrimonial Causes Act 1959 (Cth) was as follows: Ground

Number of divorces

Desertion

8888

Adultery

8023

Separation for five years

3390

Cruelty

2615

Drunkenness or drugs

295

Refusal to consummate

43

Frequent convictions

13

Imprisonment

9

Insanity

5

Non-compliance with restitution decree

1

The above figures show that there were 23,282 divorces based on these 10 grounds. The total number of decrees granted was 24,257. Of that figure, a further 17 decrees were based on one of the four remaining grounds under the Matrimonial Causes Act. The remaining 958 divorces were based on a combination of two or more of the available grounds. Not surprisingly, the new ground of divorce saw the number of divorces increase dramatically in 1976 and for the next few years, as the backlog of couples wanting to divorce washed through the system. 1.42 One category of matrimonial causes that was rationalised by the FLA was nullity of marriage. Under the Matrimonial Causes Act, as indeed under any earlier matrimonial causes law, there were always two categories of nullity: void and voidable marriages. A void marriage, as discussed previously (see 1.8), was absolutely void ab initio because of some fundamental flaw, as if it had never existed. An example of this was the purported marriage of a person who was already married, or of parties who were close blood relations. A voidable marriage, on the other hand, was one that was affected by some vitiating factor that was unknown to the complaining party at the time of the marriage. Examples were inability to consummate the marriage and, in a wife, being pregnant to another man. On discovering the existence of such a flaw, the complaining party could have the marriage set aside, though only from the [page 22]

time of the decree.40 Nullity of voidable marriages had many of the attributes of divorce. It was a remedy that presupposed a breakdown of the relationship, requiring proceedings to be taken within a certain time. With the introduction of the FLA, the category of voidable marriages was abandoned. 1.43 The remaining ground for a declaration of nullity, namely a void marriage, continued to rely on the existence of some vitiating factor at the time of the ceremony that prevented a valid marriage from being formed. Such factors related to capacity (age, prior subsisting marriage, prohibited relationship), to essential formalities affecting the ceremony, and to the absence of true consent owing to fraud, duress, mistake or mental incapacity. These categories were retained, except for a modification of the prohibited relationships. The former prohibited relationships of affinity (ie relationship by marriage: see 1.9–1.10) were removed.41 At the same time, the elaborate categories of consanguinity (blood relationship) were simplified.42

The creation of the Family Court of Australia 1.44 The FLA introduced another major reform by creating the Family Court of Australia.43 The earlier expedient of vesting federal jurisdiction in matrimonial causes in state Supreme Courts under s 77(iii) of the Constitution had worked well for many years, as it had in other areas of law. It had been particularly useful at the inception of the Commonwealth in 1901, when a small population of 3.75 million, dispersed over a whole continent, did not warrant the duplication of a complete judicial hierarchy, to coexist side by side with the already existing judicial systems of the states. However, with the growth in population and the considerable increase in workloads of all Australian courts, the creation of a specialist jurisdiction no longer seemed such an unnecessary extravagance as it would have appeared in 1901. In addition, there

were more substantial reasons that made a specialist family court seem attractive. New attitudes, particularly in dealing with children involved in legal proceedings, called for modifications in traditional court procedures. The association of state and territory Magistrates’ Courts, for instance, with petty crime and police prosecutions, as well as their often antiquated facilities and sordid surroundings, had come to be regarded as an unfavourable setting for the resolution of intimate and sensitive family problems. [page 23] Moreover, the expertise required in criminal or common law litigation was not always the best qualification for a family lawyer. There was also the growing realisation — not always perhaps articulated by lawyers themselves, but recognised nevertheless by the reluctance of many of them to work in this jurisdiction — that this was a field calling for different qualities. The concern of the law with rights and obligations, which had been the dominant theme in family law, was now being tempered with modern insights derived from the behavioural and social sciences. The participation of social workers, psychologists and marriage counsellors was seen to an increasing extent as indispensable, or at least desirable in the work that the courts had to perform. The concept of a ‘family court’, a term that was often vague and used without any clear idea as to how such a court would function, was coming to be used and written about — a clear sign that people felt such an institution was needed. 1.45 The FLA set up the Family Court of Australia as a federal superior court of record, consisting of a Chief Justice, Deputy Chief Justice and other judges.44 The court has a general division and an appeal division, with an original and an appellate jurisdiction. The Family Court has jurisdiction in all matters under the FLA, and in most matters under the Marriage Act 1961 (Cth).

The jurisdictional limitations to which the Family Court is subject by reason of the allocation of powers in the Constitution (see Chapter 4 for a detailed discussion of this) do not apply to the federal territories (the Australian Capital Territory and the Northern Territory). The Act also applies to Norfolk Island, Christmas Island and the Cocos (Keeling) Islands.45 Commonwealth powers in territories are plenary by virtue of s 122 of the Constitution. Accordingly, the Family Court’s jurisdiction in these territories extends to matters that in the context of a state would be closed to the Commonwealth. These matters include adoption and the status of an ex-nuptial child.46 As all states except Western Australia have referred their powers in relation to ex-nuptial children (one of the key areas not within Commonwealth legislative power) to the Commonwealth, the limitation with respect to children who are not children of a marriage has become increasingly irrelevant. This is discussed in Chapter 4. 1.46 The FLA went a long way towards creating a court that was designed specifically for the task for which it was set up. The traditional trappings and ceremony were reduced to a minimum; there is a general requirement that the court shall proceed without undue formality, and that proceedings should not be protracted.47 Present practice is that judges do not wear wigs and only robe for final hearings (in other words, not for interlocutory and other matters preceding [page 24] the final disposition of a matter). In addition, the provisions dealing with practice and procedure have been designed to simplify as far as possible the forms and formalities of those proceedings.48 Counter staff give advice to parties, many of whom prepare their own applications and appear for themselves. Indeed,

research has shown that at first instance, about 35 per cent of people represented themselves at some point in the proceedings.49 The court has had counselling and welfare staff for many years, and now has family consultants (see 2.43–2.46), whose task it is to assist both the judges and the parties in a variety of ways. 1.47 It was originally part of the new image of the court that the bench should be composed of judges who were not only lawyers, but were also well suited to the specialised work they were having to perform. Section 22(2) of the FLA therefore provides that a person shall not be appointed as a judge unless he or she is or has been a federal or state court judge, or has been a legal practitioner for at least five years,50 and ‘by reason of training, experience and personality … is a suitable person to deal with matters of family law’.51 While the first appointment requirement is familiar in statutes dealing with the qualifications of persons appointed to the judiciary, the second was an innovation and is designed to ensure that judges of the Family Court have the experience and the expertise required in this rather specialised jurisdiction. 1.48 On the commencement of the FLA on 5 January 1976, the Family Court of Western Australia was established by the government of that state. As mentioned in Chapter 4, s 41 of the Act enables any state to establish its own state family court at the expense of the Commonwealth,52 but only Western Australia has taken up the option. The Family Court of Western Australia is invested with federal jurisdiction under the FLA. All judges of the Family Court of Western Australia have been given dual commissions and can sit on the Family Court of Australia, including on appeals. While the existence of a state family court presents technical issues [page 25]

of jurisdictions, and occasional discrepancies in the law of the two jurisdictions, by and large to users of the system the Family Court presents as a national uniform specialist court, tailored to the needs of family law cases.

Families in Australia: the modern social context The modern family 1.49 As we have seen from our historical introduction above, Australian family law has developed based on particular and culturally specific notions of what a family is, and how it should be protected. While there has never been any definition of ‘family’ in our legislation, the natural result of the setting in which the law has developed has seen a particular emphasis on families arising through marriage. The importance our society attaches to the notion of ‘family’ and marriage is expressly recognised in s 43(1) of the FLA itself, especially in paras (a) and (b). Paragraph (a) affirms ‘the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life’, and para (b) emphasises: … the need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society, particularly while it is responsible for the care and education of dependent children.

The same attitude is seen in a wider international context in the International Covenant on Civil and Political Rights, which has been adopted by Australia under the Human Rights and Equal Opportunity Commission Act 1986 (Cth). Article 23 affirms: (1) that ‘the family is the natural and fundamental group unit of society and is entitled to protection by society and the State’; and

(2) that ‘the right of men and women of marriageable age to marry and to found a family shall be recognised’. 1.50 In Australia, the Royal Commission on Human Relationships reported in 1977 on a large number of issues concerning family and other relationships. One of the commissioners was the first Chief Justice of the Family Court, Elizabeth Evatt. In its introduction, the Commission develops the definition of the family in the following terms: Of all our institutions, the family is the most influential in terms of human relationships. It is universal, being found in both sophisticated and primitive societies as far back as our knowledge takes us. Though it has had and will have many different forms, it is unlikely that it will ever disappear, nor would we wish it to do so.53

[page 26] However, the Commission also said that the family means different things to different people.54 For many, still, the modern perception of the typical family is that of the nuclear family: formed by a man and a woman living together and bringing into the world and rearing one or more children to adolescence or adulthood. In fact, it would be difficult — perhaps impossible — to define what is meant by ‘family’ in a modern context. In a 2012–13 survey of Australian families, the Australian Bureau of Statistics (ABS) adopted the following definition of family: Two or more persons, one of whom is at least 15 years of age, who are related by blood, marriage (registered or de facto), adoption, step or fostering; and who are usually resident in the same household. The basis of a family is formed by identifying the presence of a couple relationship, lone parent–child relationship or other blood relationship.55

The ABS survey provides an interesting insight into modern Australian families: Of the 8.9 million households in Australia, 74 per cent housed

families and in 96 per cent of cases this was a single family. At 44 per cent, the proportion of couple families with resident children has decreased from 48 per cent in 1997 when the survey started. Of all families, 14 per cent had only one parent living with a child or children. Of all families, 58 per cent had resident children. Of all families with resident children aged 17 or under, 81 per cent included couple adults — this is up from 78 per cent in 2003. Of the 5.2 million children living in Australian families, 21 per cent had parents living elsewhere (79 per cent of which were fathers, down from 81 per cent in 2009–10); a figure that has stayed relatively constant since 1997. Seventy-seven per cent of these children lived with a sole parent, 10 per cent in stepfamilies and 12 per cent in blended families.56 Of the children not living with a parent, 45 per cent saw that parent at least fortnightly (this figure has remained relatively stable since 1997, though it was 48 per cent in 2009–10), while 26 per cent rarely saw the parent (this figure had been declining since 1997, but has increased from 24 per cent in 2009–10). Of the 17.6 million adults living in private dwellings, 64 per cent were in a registered marriage (52 per cent) or considered themselves to be in a de facto marriage (12 per cent). Less than 1 per cent (23,714) of couples were same-sex. [page 27] This data shows that, while the forms of family are diversifying, many families still fit the traditional notion of a family. More often than not, those families are still based on marriage. However, it is important point to note that marriage is no longer seen by many, or by the law, as essential to the formation of

families. As we shall discuss later in this chapter, unmarried partnerships have become accepted and are common, and illegitimacy of children has lost its social stigma. 1.51 While family law legislation does not attempt to define what it means by ‘family’, it must define the circumstances in which rules apply to a group of people. We shall return to this issue in detail throughout this book and it will become obvious that one of the modern challenges for family law is determining to whom the law applies. For present purposes, it could be said that Australian ‘family law’ regulates families based on marriage and families based on cohabitation without marriage, including samesex couples; however, it also regulates other groups of people connected by children.

Families based on marriage 1.52 ‘Marriage’, said Lord Penzance in 1866, is ‘the voluntary union for life of one man and one woman to the exclusion of all others’.57 This statement is now reflected in the definition of marriage that was added to the Marriage Act 1961 (Cth) in 2004.58 A paraphrase of that definition is also used by civil marriage celebrants when celebrating a marriage.59 As a description of marriage, however, it is patently false. At the time of Lord Penzance’s dictum, divorce had been available for nine years. The ‘lifelong’ character of marriage therefore, even 120 years ago, was a romantic ideal rather than a description of a legal incident or characteristic of marriage. It mirrored no doubt the expectations of the parties and of society as a whole; ideals to which marriage aspired and was believed to conform. Dissolution was still so exceptional in nature that it hardly detracted from the applicability of the dictum. However, the universality of the expectation has since been subjected to a process of progressive erosion. Similarly, the notion of the exclusiveness of the union

has not prevented the formation of competing or concurrent unions by either or both parties. According to the late Dr Finlay, it was: … [t]he introduction of divorce in 1857 [that] laid the foundation for the eventual perception of marriage as a transient relationship. Dissolubility was introduced in response to social pressures. Whereas it had been thought that marriage could be protected only by rigorous enforcement, it came to be realised

[page 28] that a too rigid approach would lead to it being by-passed. The evolutionary process was characterised by the abandonment of legal sanctions against de facto dissolution or marital immorality. The high water mark of this trend came in 1943 when the House of Lords acknowledged that it might be in the public interest to dissolve a marriage that had broken down. … [O]ne is entitled to conclude that the present phase in the evolution of domestic institutions in Western society is characterised by increasing coalescence in formal and informal marriage.60

1.53 So, without attempting to distinguish between cause and effect with regard to the increasing popularity of de facto marriages, we must recognise the changes to the character of marriage as an institution. Hutley JA of the New South Wales Court of Appeal drew attention to this phenomenon in Seidler v Schallhofer:61 The marriage which the law now provides is of an entirely different kind. It is an arrangement terminable by either party on one year’s separation, really one year’s notice, as the separation may be fictitious. Though the Family Law Act 1975 provides [there follows a reference to s 43(1)(a) and (b) regarding the need to preserve and protect the institution of marriage and of the family], this can only be regarded as propaganda contradicted by the substantial provisions of the Act which, except for the creation of counselling facilities, are directed to the speedy termination of the married state …62

As noted above, in 1976, when the FLA introduced the single ground for divorce — irretrievable breakdown of marriage — there was a sharp spike in the number of divorces. The next three years saw a steady decline in that number, and since that time the

proportion of the population divorcing has more or less stabilised, though at a higher level than before the new ground for divorce. However, while the crude rate of divorce (ie the number of divorces per 1000 people) may have plateaued, the crude rate of marriage ontinues to fall, which means that the proportion of married couples divorcing has increased.63 Roughly a third of marriages entered into in the 2000–02 period are predicted to end in divorce; and of those who divorce, roughly half will remarry.64 Increases in the proportions of babies being born outside registered marriages and increases in cohabitation provide evidence that registered marriage as the traditional social institution for family formation is declining.65 [page 29] As rates of marriage have declined, the number of people who never marry has increased. Based on relevant statistical data, if trends continue, 31 per cent of men and 26 per cent of women will never marry.66 Australians are also marrying much later (the median age for men peaked in 2006 at 31.6 and in 2013 for women at 29.5; compared to 25.6 and 23.5 respectively in 1986). The median duration of a marriage to separation in 2008 was 8.8 years, with the duration to divorce being 12.3 years.67 In 2010, 79 per cent of married people had lived together prior to marriage.68 So, marriage is still popular. However, Australians are marrying less and later, they usually live together first, and they have a high likelihood of divorce and remarriage. These statistics highlight the significance of family law, as more people are likely to be impacted by laws that govern separation and divorce.

Families based on cohabitation — ‘de facto’ marriage

1.54 By 2009–10, the ABS recorded that 11 per cent of the population aged over 18 (1.9 million people) were living in a de facto marriage (46,300 of whom were in a same-sex couple).69 Whereas in 1975 only 16 per cent of marriages were preceded by cohabitation,70 by 2010 the figure had risen to 79 per cent. However, cohabitation without marriage in Australia, usually now referred to as a ‘de facto relationship’,71 has always been a feature of our social organisation. In Australia’s convict beginnings, unions were formed that had all or most of the attributes of legal marriage except the legal status; the situation in the UK had not been very different.72 1.55 While de facto relationships have thus always formed part of the social fabric of Australian society, they were originally a phenomenon outside the cognisance of the law. When discussing de facto relationships in the Australian [page 30] context we are, of course, in the realm of state legislative competence. Family law as we know it today was not a familiar rubric of law at the time of Federation in 1901. Thus, the Commonwealth was given power in relation to marriage, divorce and matrimonial causes, while the ordering of private legal relationships — particularly as affecting private property rights — remained with the states.73 Until recently, partners in a de facto relationship had little or no financial or economic protection. Historically, once a woman (as was usually the case) became dependent on her male partner, the legal remedies available to her, if he abandoned her, were strictly limited. With one exception, the maintenance legislation of the several colonies before Federation extended only to legal wives and children, though there was some legal liability to pay for child-bearing expenses resulting from ex-nuptial pregnancy.

Likewise, the father of an ex-nuptial child was liable to pay maintenance for that child assuming, of course, that paternity could be proved or was admitted. The exception was Tasmania, where that state’s now repealed Maintenance Act 1967 provided for maintenance being payable to a woman who had cohabited with a man for at least 12 months and who had been left by him without adequate means of support.74 1.56 Discrimination against de facto unions was always at its most unjust where children became its victims, since they had no say whatsoever in the matter of their natal status. It was not so very long ago that the term ‘bastard’ ceased to be the official designation of an ex-nuptial child. That term’s pejorative connotation in English usage in Australia remains a palpable reminder of the odium with which the status of ex-nuptiality was formerly commonly regarded. By the 1970s, status of children legislation was being enacted to remove the ‘legal disabilities of children born outside wedlock’. The prototype for the Australian legislation was the Status of Children Act 1969 (NZ), which was followed in Australia within the next decade. The first state to enact legislation was South Australia with its Family Relationships Act 1975. That Act dealt with the status of children, but it also had something to say about de facto couples. It created the concept of the ‘putative spouse’, but the consequences of that seemingly revolutionary new legal category remained largely unspectacular. Its provisions were, in the main, limited to succession: testator’s family maintenance, fatal accidents and superannuation.75 1.57 A significant and radical development came in New South Wales with the commencement of the Property (Relationships) Act 1984 (formerly the De Facto Relationships Act 1984) on 1 July 1985. That Act followed the recommendations of the New South Wales Law Reform Commission’s 1983 De Facto Relationships

[page 31] Report in extending to de facto partners remedies in relation to the division of property on separation. Such was the increasing incidence of de facto relationships and the perceived unfairness caused by lack of access to the FLA, that by 2008 all the states and territories had put in place comprehensive schemes for extending to de facto partners a degree of protection that in some ways resembled that which the FLA had set up for married partners. Indeed, the relevant scheme in Western Australia is virtually identical.76 More recently, all states and territories, except Western Australia, have referred their power in this regard to the Commonwealth. As a result, the Family Court in those jurisdictions can now hear de facto property and spousal maintenance disputes, and will apply the same principles as for married couples. Both opposite and same-sex de facto couples can utilise this legislation.77 This topic is covered in more detail in Chapters 10 and 12–15. 1.58 In addition to the legislation referred to in 1.57 above, there has been a parallel development affecting unmarried couples, and that is the introduction in many Australian jurisdictions of ‘relationship registers’.78 Some couples may choose not to marry, and some may not be able to; however, they still may wish to formalise their relationship by registration. As samesex partners cannot marry, this avenue may be of particular importance to such couples, and so we discuss the matter further at 1.60ff. In addition to any symbolic significance for a couple in registering their relationship,79 there is a practical benefit: it provides conclusive proof of the fact of the relationship. This is important for the purposes of family law as, in the absence of such proof, determining whether a particular couple is in a de facto relationship can be a very difficult matter. 1.59

In recent times, therefore, the discernible tendency has

been to play down the significance of marriage in the formation of families, and to look at the realities of life in determining whether a family relationship exists, beginning with the elimination of the status of the illegitimacy of children and continuing with the recognition of de facto relationships between partners, both opposite and same-sex. Some jurisdictions have even gone so far as to extend relief to [page 32] domestic relationships that are not marriage-like, but which involve a high degree of interdependency.80

Same-sex couples 1.60 As indicated at 1.57, on separation, same-sex couples can access the property and spousal maintenance provisions applying generally to de facto couples. However, in recent years, there have been calls for the recognition of same-sex marriages, on the basis that it is discriminatory to deny same-sex couples the right to marry. In 1997, the former Chief Justice of the Family Court of Australia, the Hon Alastair Nicholson, after recognising that ‘the concept of “marriage” carries a meaning which is powerfully infused with tradition, history and religion, even more so than the concept of “family”’,81 pointed out that Australia then lagged behind other countries, such as Canada, in the formal recognition of same-sex relationships.82 Like a great many other countries, Canada now permits same-sex marriage, as does the UK. An Irish referendum on the legalisation of gay marriage in 2015 saw a 62 per cent ‘yes’ vote. The United States Supreme Court has also recently ruled that banning same-sex marriage contravenes constitutional protections of equal treatment under the law.83 Despite the fact that polls indicate that the majority of Australians support same-sex marriage, same-sex couples in Australia may not

yet legally marry and for this reason we have not discussed this topic in detail in the chapter on marriage: Chapter 5. Rather, as we are talking here about the evolution of what we now call family law and its relationship to the family and society, we will include some discussion of the attempts in Australia to legislate to permit same-sex marriage. 1.61 This topic is also covered in Chapter 4, as legislating to permit same-sex marriage raises issues as to the division of constitutional powers between the states and the Commonwealth. Regardless of the views that have been expressed that favour, or oppose, same-sex marriage,84 the fact remains that the recognition of such a relationship federally as a marriage presupposes an acknowledgment that it comes within the marriage power of the Commonwealth. [page 33] The following comments of McHugh J, in the 1999 case of Re Wakim; Ex parte McNally,85 show that there has been uncertainty in this regard: … many words and phrases of the Constitution are expressed at such a level of generality that the most sensible conclusion to be drawn from their use in a Constitution is that the makers of the Constitution intended that they should apply to whatever facts and circumstances succeeding generations thought they covered … in 1901 ‘marriage’ was seen as meaning a voluntary union for life between one man and one woman to the exclusion of all others. If that level of abstraction were now accepted, it would deny the Parliament of the Commonwealth the power to legislate for same sex marriages, although arguably ‘marriage’ now means, or in the near future may mean, a voluntary union for life between two people to the exclusion of others.86

In 2004 the Marriage Act 1961 (Cth) was amended by the insertion of a formal definition of ‘marriage’ (see 5.4), which was limited to opposite-sex couples; however, this did not answer the question as to where the jurisdiction lies to legislate for same-sex marriage.87

1.62 While Federal Governments have shown a disinclination towards permitting same-sex couples to marry, the same cannot be said for the states and territories. But uncertainty as to the meaning of the word ‘marriage’ in the Constitution has cast doubt on whether there is a residual power to enact legislation governing same-sex ‘marriages’. Attempts to legalise same-sex marriage in both Tasmania and the Australian Capital Territory have failed, with the High Court ruling in 2013 that the most recent legislation enacted in the Australian Capital Territory was invalid on the basis that it was inconsistent with the Marriage Act 1961 (Cth).88 This case is further discussed at 4.3. After an earlier failed attempt to legalise same-sex marriage, the Australian Capital Territory Government introduced a form of civil partnership with an ‘administrative ceremony’, rather than a legal ceremony.89 The Civil Partnerships Act 2008 (ACT) came into effect on 19 May 2008. The following jurisdictions also have relationship registers: New South Wales, Queensland, Tasmania and Victoria.90 [page 34] The net result is that civil partnerships have been equated, legally, with opposite-sex de facto relationships. This draws a sharp distinction, as opposite-sex couples can choose to marry; same-sex couples cannot. This fundamental difference in legal status of relationships has attracted considerable criticism. Sifris and Gerber, while recognising that the Federal Government has gone some way to reducing the instances in which same-sex couples face discrimination under Australian law, argue that ‘the inability of same-sex couples in Australia to marry represents one of the final bastions of discrimination perpetrated against such couples, and remains a battleground for equality’.91 They go on to respond to the main arguments raised against same-sex marriage. The notion that marriage has a historical tradition that should be

maintained is answered with details about the way in which the so-called ‘institution’ of marriage has evolved over time and according to the jurisdiction. It is noted that the history of marriage has had little to do with love and affection (as we saw earlier in this chapter); this is a modern concept, but one that is intrinsic to the current notion of marriage and which argues in favour of the legalisation of same-sex marriage. The notion that children should be raised by a mother and father is countered with the fact of legal acceptance of same-sex parenting through the availability of assisted conception procedures and surrogacy to same-sex parents. Sifris and Gerber go on to suggest that denying the legal parents of these children the right to marry is not in the best interests of those children. 1.63 The Federal Labor Government changed its platform in favour of same-sex marriage in 2011, with Prime Minister Gillard deciding that the matter should be one of conscience for Labor politicians. That remains the position of the current Labor opposition party. Conversely, the Federal Liberal-National Coalition Government is opposed to same-sex marriage, and has refused to allow parliamentarians a conscience vote. There is presently discussion about holding either a plebiscite or a referendum on this issue in the next term of government.

Children as the basis of family law regulation 1.64 To date in this chapter we have spoken of families (in so far as they are governed by family law) in which there is some ongoing, interpersonal connection between two adults. However, many people interacting with the family law system do so because of the need to resolve an issue about a child. Often, that might be some kind of disagreement as to how or where a child should be raised. Such a dispute may be between the biological parents of the child. But even if it is, those parents may not have had any ongoing connection with each other, other than the act giving rise

to conception. Thus, they may never have lived together, shared parenting of their child or in any other way have formed what we might think of [page 35] as a family. The dispute may also be between people who are parents not because of biology, but because of the law; for example, adoptive parents, or the legal parents of a child resulting from the utilisation of assisted conception procedures: see 7.15ff. Further, a ‘parenting’ dispute over a child does not have to be between the child’s two parents. All of the following examples are matters that would be dealt with in the Family Courts: a dispute between a grandparent and a parent as to the former’s contact with the child; a dispute between a surrogate and the parents who commissioned the surrogacy; a dispute between a child and their parent/s as to the contact that child should have with either parent; and a dispute between two relative adults about where an orphan child should live. However, even this does not represent the limits of the power of the Family Court to hear matters concerning children. Section 67ZC of the FLA extends the jurisdiction of the Family Courts to ‘matters relating to the welfare of children’. Thus, a decision as to whether a disabled female child may be sterilised, for example, is one falling within the purview of the Family Court: see 8.117ff. So too is the question of whether a child is sufficiently mature to consent to sex-reassignment surgery (see 8.124ff). Chapter 4 explains in more detail the jurisdiction of the Family Court and the question of when a matter concerning a child falls within the jurisdiction of the FLA.

1.65 As the foregoing shows, modern Australian family law regulates a broad range of family formations and, in the case of children, has an extremely wide scope. The obvious advantage of the expansion of family law in this way is that it reduces the opportunity for there to be arbitrary differences in the law according to where someone lives or whether they choose to marry or not, for example. Moreover, it ensures the consistent application of laws to all children. In addition, it ensures that a specialist court, with targeted resources, is available to a wide range of families. The corresponding challenge, as we suggested at the outset of this chapter, is that at times it is difficult to determine when the laws apply; for example, identifying a marriage is simple, whereas the question of whether a couple are in a de facto relationship can be exceedingly complex. Nonetheless, it must be recognised that Australian legislators have come a considerable way in achieving uniformity in this area of law.

Family violence and family law 1.66 While family formations may be changing, one constant is the fact that many family members are victims of violence perpetrated by other family members. However, what has changed in recent decades is the level of societal concern about the prevalence of family violence and the recognition of the inadequacy [page 36] of the law’s response. Family violence is, of course, a criminal matter. It is also, as we have indicated, ‘core business’ for the family courts; studies in recent years confirm the high proportion of cases involving allegations of abuse of a family member (see

further, 13.1). It is perhaps not surprising, therefore, that the Family Court has played a role, along with feminist commentators, law reform bodies and researchers, in bringing about a new approach to the analysis of the problem. 1.67 An important conceptual advance in understanding violence in families has been the recognition of the link between violence and inequality. A violent relationship is an extreme example of a power imbalance between the individuals concerned. Moreover, a legal system that fails to acknowledge the seriousness of violence committed by one family member against another further compounds the disempowerment of the victim. A victim thus suffers inequality both within the relationship and in access to the legal system. 1.68 In 1993, the Australian Law Reform Commission (ALRC) was given an important reference on the principle of equality before the law. The reference was to have regard to Australia’s obligations under international law, including Arts 2 and 26 of the International Covenant on Civil and Political Rights, and the Convention on the Elimination of All Forms of Discrimination Against Women. The ALRC’s work on the reference immediately revealed the extent of violence experienced by women in Australia and their disempowerment in the legal system. In an interim report, it was said: All over Australia women came to the Commission to explain how the legal system had failed them. Some spoke as professionals on behalf of their clients, others came bravely to relate their own experience in the hope that other women may be spared … Women told how the horror of the violence against them from their partners and ex-partners or from an assailant had been compounded by the law’s failure to protect them. They complained of the lack of services to meet their needs, of ineffective legal remedies and of their humiliation by a system of justice that they perceived as trivialising their injuries and disbelieving them. The accumulated experiences of the women shocked and moved members of the Commission and imbued them with a sense of the urgency of the need for change … The Commission knew that violence was a serious problem for women but the intensity and uniformity of the women’s submissions brought home to the

Commission that the link between women’s inequality and violence was fundamental. The legal system’s tolerance of violence against women underwrites women’s inequality before the law. Women cannot be equal until the legal system responds effectively to violence and until women are treated as

[page 37] equals, violence against them will not be reduced. The experience of violence is in itself disempowering for women and impedes their access to legal services.92

Subsequently, in the final report, the ALRC stated that ‘women’s experience and fear of violence constitute a significant aspect of gender inequality’93 and ‘violence is used as a means by a man to exert power and control over his female partner’.94 The ALRC was not the first to identify violence with inequality; academic commentators had done so for some years.95 The ALRC’s distinctive contribution was to raise the general public and government awareness of the issue and to act as a mouthpiece for the views of women across Australia. 1.69 The second issue highlighted by the ALRC in the course of its reference on equality before the law was the impact that violence has on women’s access to the legal system: Women’s experiences of violence indicated the difficulties women face in obtaining justice … From the material contained in submissions it appears to the Commission that many women have a real and urgent need for the law to protect them from violence. Violence is also the issue where they believe the law is most likely to let them down … Submissions … reveal that women’s attempts to seek the protection of the law are fraught with obstacles. Their problems begin with the attempt to find accurate information. After that, when women try to enforce their rights they undergo further frustration as they encounter in turn police, lawyers, prosecutors, magistrates or judges … they remember more bitterly their treatment in the legal system than the original mistreatment from their assailant.96

Victims of violence are deterred from pursuing legal remedies (including protection orders, injunctions, child residence, child support, property division and maintenance) not only by fear of

the violent partner, but also by the failure of the legal system to give credence to allegations of violence:97 Violence directly impedes women enforcing their legal rights through its destructive impact on their personal confidence and because they may fear

[page 38] retaliation … Many women considered that they were not believed by lawyers, Family Court counsellors and judges … These attitudes ignore the nature and effects of abuse on the woman and further disempower her.98

Disempowerment in access to justice is itself an inequality issue: Access to justice and violence against women are recurrent issues which frequently arise together … Submissions portray violence as a regular part of life for large numbers of women in Australia and one of the main complaints is how the legal system responds … [W]hen women seek access to justice they are often seeking protection from violence. Freedom from violence cannot be separated from women’s equality and their access to justice … The links between inequality and violence are so strong that women’s equality cannot be ensured unless violence is addressed.99

1.70 This is not to suggest that men do not experience family violence or that they do not make claims of such violence in family court disputes. Evidence indicates that men also frequently allege they are the victims of violence in the course of parenting disputes. Indeed many men feel, like women, that their claims of violence are not taken seriously in court.100 All victims of violence deserve legal protection and to have their claims treated seriously in the family courts. However, in considering how the legal system should respond to the problem of violence it must be understood that the context of family violence is very important. Indeed, in this regard, some family law decision-makers have begun drawing on research from the United States101 that categorises intimate partner violence to highlight its different nature in different situations. Both the Family Court of Australia and the Federal Circuit Court have published best practice principles,102 and these also refer to this research literature. The research, though subject

to some criticism, suggests that intimate partner violence can occur in a wide variety of situations and can be very different in nature. So, for example, ‘coercive controlling violence’, which involves a ‘pattern of emotionally abusive intimidation, coercion and control coupled with physical violence’ may be very different to ‘situational couple [page 39] violence’, which is much more common, often much less severe and reflects a response to a particular situation or conflict. However, within these categories, men and women experience violence very differently. Coercive controlling violence is primarily perpetrated by men against women. While men and women appear to engage equally in situational couple violence, women are more likely to be seriously injured and to be fearful of their partners. Another nominated category of violence, ‘violent resistance’, consists primarily of women resisting, or reacting to, coercive controlling violence by men. Thus, it can be argued that the gendered nature of family violence — that is, the different ways in which men and women experience family violence — is part of the broader picture of men’s violence towards women arising out of gender inequality.103 Australian statistics confirm that men are the main perpetrators of violence, both against men and women; they also show that women suffer the most significant sexual and family violence at the hands of men. Thus, 83 per cent of all sexual assault victims are women.104 While men, on average, are assaulted more than women, women are more than twice as likely to be assaulted by a family member, whereas men are more likely to be assaulted by a stranger.105 Men are more likely to kill someone (87.2 per cent of such offenders are male) and are more likely to be killed than are women (63.2 per cent of such victims are male). However, men are most likely to be single and to be killed by a friend or

acquaintance following an argument preceded by alcohol consumption. Women on the other hand are more likely to be married or in a de facto relationship and to be killed after a domestic altercation.106 By and large, men are the predominant perpetrators of violence and, in particular, serious violence; while men are also violent towards other men, the ability to exercise power and control over the women and children in their lives has led to a general acceptance that violence in the home has a gendered nature, and so policies developed to address the problem must recognise and account for that fact. It is because of the recognition of the gendered nature of violence that the Federal Government has developed a national plan to reduce violence against women and children.107 1.71 A third advance in the analysis of family violence has been the acknowledgment in recent years that it is pervasive and has significance in many [page 40] aspects of family law. Violence is not something to be confined, conceptually, to the realms of criminal law, injunctions and protection orders; nor should its discussion be limited to a discrete chapter in a book on family law. The effects of violence must be given proper recognition in parenting disputes, for property division and maintenance, and in the context of child abduction. In the past, criticisms have been voiced of the Family Court’s failure to take violence seriously in the areas mentioned above. The Family Court’s approach was attributed in part to an overzealous desire post-1975 to eradicate considerations of fault from all proceedings under the FLA.108 To quote again from the ALRC: Violence forms a backdrop to many of the cases that come to the Family Court, such as custody and access matters and property disputes. The Commission

received many submissions that evidence of violence against a spouse is often excluded or discounted at different stages of the legal system and that the Family Court often does not give proper weight to the existence and effects of violence.109

1.72 In the decades since the ALRC report, there have been considerable changes in both the way Family Court decisionmakers approach cases involving family violence and in the legislation itself. There is clearly a much stronger legislative and judicial commitment to protection from violence than was seen 20 years ago. In this book, we discuss the current provisions and cases dealing with family violence as they relate to parenting disputes (see 9.28–9.39), property disputes (see 14.37ff) and child abduction (see 8.157). Also, Chapter 3 outlines in more detail the various ways in which state and federal governments have addressed the broader issues of family violence and child abuse. However, the way the government has responded to family violence concerns continues to be the subject of significant debate in modern Australian family law. For that reason we have outlined briefly below the major themes of that debate. 1.73 One of the most contentious issues has been the way family violence is treated in parenting disputes. In this regard, the initial challenge was to ensure that decision-makers appreciated the relevance of family violence and its impact on women and children to the making of a parenting order. For example, it took [page 41] some time for judges to appreciate that a child does not need to witness, or be a direct victim of, family violence to be adversely affected by it. A second major challenge has arisen from the tension between trying to balance the need to ensure that women and children are protected from violent men, with the desire to encourage parents who are separated to share parenting, so that children can maintain meaningful relationships with their fathers.

This latter issue is particularly difficult because family courts are often presented with inadequate evidence about family violence and, even when all relevant evidence is presented, true family violence claims can be very difficult to establish. Moreover, there is a perception (unsupported by evidence) that false family violence allegations are routinely used by mothers tactically in parenting disputes.110 Against this backdrop, one can imagine the difficult task facing family law decision-makers. 1.74 Before there was any direct legislative attention to family violence in the FLA, the early 1990s saw the judges of the Family Court of Australia begin to change their approach and place more emphasis on family violence in parenting disputes.111 The Chief Justice of the Family Court of Australia, Alastair Nicholson, also publicly acknowledged the problem in 1995.112 This was quickly followed by the Family Law Reform Act 1995 (Cth);113 this amended Pt VII, which deals with parenting disputes, extensively. These amendments adopted many of the recommendations of the ALRC in Report No 69, Part I,114 discussed above. Indicative of an increased readiness to recognise violence as a pervasive phenomenon, the effects of which are felt across a wide range of proceedings, was the insertion into s 43 (which declares the general principles to be applied by courts in exercising jurisdiction in any proceedings under the FLA) of a new subsection: ‘(ca) the need to ensure safety from family violence’. Another amendment at this time was to include an express reference in the ‘best interests checklist’ (the list of considerations a court must address in making a parenting order: see 8.57) to the direct and indirect effects of family violence. [page 42] Chief Justice Nicholson observed of the amendments to the best interests checklist as follows:

I welcome the inclusion of this provision, which contains a clear message about the multiplicity of ways in which spousal abuse impacts upon children in a family. For too long the law and its personnel have under-estimated the connection between child and spouse abuse and improperly treated the protection of children and spouses as split issues.115

1.75 Nevertheless, the new legislative provisions attracted criticism almost immediately. First, the Family Law Reform Act did not incorporate all of the ALRC’s recommendations. Not adopted were recommendations for the inclusion of an explicit legislative reference to the inappropriateness of mediation where violence has occurred, and for making breach of an injunction for personal protection a criminal offence. Another issue arose from the fact that a major purpose of the 1995 reforms was to increase the extent to which the court ordered shared parenting. Behrens and others116 argued that a greater focus on shared parenting in the making of parenting orders had the potential to impact negatively on victims of violence; that is, protection from violence would be a secondary concern to decision-makers who would focus on promoting child– father contact. Research on the impact of this first wave of legislative changes has since provided support for this concern.117 1.76 Increasing shared parenting and protection from family violence were both again on the agenda with the next major round of family law reforms, contained in the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). The tension between these two objectives fuelled continuing debate about whether family law reform was strengthening or weakening protection for victims of violence. We have dealt with the 2006 amendments in more detail in Chapter 8, as part of the background to the current structure of Pt VII of the FLA. However, it is worth noting here that there were some amendments in 2006 that sought to give greater legislative force to the need to protect victims of family violence; a new object for Pt VII of ‘protecting children from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence’ was

inserted, and the ‘best interests checklist’ was amended by adding, as the second [page 43] of two new ‘primary’ considerations, ‘the need to protect’ children from abuse and violence. 1.77 However, at the same time, other changes were made that had the potential both to lead decision-makers to place shared parenting ahead of protection from violence and to discourage parents from bringing forward allegations of family violence. The main concern in terms of the balancing of shared parenting and protection from violence was the fact that the other new primary consideration focused on maximising shared parenting (s 60CC(2) (a)), and there was nothing in the Act that prioritised one primary consideration over the other; in other words, protection from violence was not required to be accorded more weight than promoting shared parenting. Two other provisions in particular were criticised as being likely to inhibit disclosures of abuse. The first was a provision making a costs order against a parent mandatory where they made a false allegation: the old s 117AB. As violence allegations can be very difficult to prove, it was felt this would discourage the making of true claims, as well as false ones. This provision was introduced because of the perception (referred to above) that mothers routinely lie in the Family Court about violence to stop a child’s contact with their father. There is no empirical support for this claim. However, as the ALRC report and other research has confirmed, it is very difficult for many women both to make and prove true claims of violence. Another amendment that raised similar concerns was the addition to the best interests checklist of a ‘friendly parent provision’: s 60CC(3)(c). This made a parent’s ‘willingness’ to

‘facilitate and encourage, a close and continuing relationship between the child and the other parent’ a relevant consideration. While the court had always considered this factor when making a parenting order, its relevance being obvious in cases where violence is not an issue, provisions of this type had long been criticised in other jurisdictions for having the potential to disadvantage women seeking to limit access where a father is abusive.118 So, despite legislators, the judiciary and politicians continuing to evince a genuine regard for victims of violence,119 critics remained sceptical of the extent to which practical gains had been, or would be, achieved by these legislative provisions. In particular, they questioned whether more recently there had been a move away from the protection of women and children, in favour of acceding to demands for increased father–child contact.120 This is notable in light of empirical [page 44] research predating the 2006 reform, which suggested it was not easy at that time to have contact curtailed on the basis of family violence.121 1.78 Evidence gathered after the 2006 reforms supports the concerns of the critics. The Federal Government became satisfied that victims of violence were being discouraged by the new provisions from bringing forward violence claims, and that shared parenting was being emphasised by decision-makers and other professionals in the system to the detriment of the protection of women and children from violence. The FLA was therefore amended (again) to remove the friendly parent and mandatory costs order provisions, and now provides that, when considering the two primary best interest considerations, greater weight must be given to protection from violence.122

In addition, a much more expansive definition of family violence has been introduced (s 4AB), to recognise generally accepted notions of the broad range of conduct that can amount to abuse (see further, 3.3), including stalking, economic abuse and denying a family member the ability to maintain family and cultural connections. Further, s 4AB(3) now clarifies that a child’s ‘exposure’ to abuse includes the child hearing, seeing or otherwise ‘experiencing’ the effects of family violence. Thus, we can see with this latest round of reforms a genuine effort to prioritise protection from abuse and a recognition of the breadth of family violence. The lesson to be learned from this journey is that the difficulty of protecting victims from violence in the home cannot be underestimated; family violence is a prevalent and persistent problem that must be taken seriously in the resolution of parenting disputes. These latest reforms have not long been in place; in Chapters 3 and 9 we look at the first research findings assessing the impact of the latest attempts to strike the right legislative balance in the resolution of parenting disputes. 1.79 The relevance of family violence to financial proceedings has also been a matter of some debate, though much less so than in the case of parenting matters. We have discussed this in more detail in Chapter 14. In a broad sense, property division orders under the FLA are based on the parties’ respective contributions to both their property and the welfare of the family. Account is also taken of the relative future financial needs of each of the parties. There is no provision in this context that directly refers to family violence. In the absence of any legislative activity in this regard, the last 20 years have seen the Family Court of Australia make advances towards recognising family violence in the context of property proceedings under existing provisions. In particular, it has been established that [page 45]

the contribution a victim of violence makes to the property of the parties and the welfare of the family might be considered to be greater, by virtue of the difficult conditions under which that contribution is made. In theory, this permits a greater share of property to be awarded to that party on that basis.123 In a series of articles that build on earlier critiques,124 Middleton has considered the varying approaches to accounting for family violence in property disputes and concludes that more needs to be done: Empirical evidence collected during the 1990s establishes that a woman’s experience of domestic violence puts her at a disadvantage when it comes to the division of matrimonial assets upon relationship breakdown. The response of the Family Court during the latter half of the 1990s was to bring domestic violence into account in property proceedings as an aspect of the contribution enquiry. However, the contribution-based approach to domestic violence has done little if anything to improve property outcomes for victims of domestic violence. There can be little doubt that giving legislative emphasis to the potential relevance of domestic violence in [assessing a party’s future needs] … would go at least some way towards improving property outcomes for victims. At the very least, it should be viewed as part of a wider solution, which may call for a combined legal, political and social response.125

So, as we can see, family violence is recognised as a significant factor in a wide range of family law matters. It is this fact, and the prevalence of family violence, that makes it important to address this topic at the outset. We will return to considering family violence in more detail as it relates to specific topics in later chapters and as a separate topic in Chapter 3. [page 46]

The psychological impacts of relationship breakdown 1.80

For many people interacting with the family law system,

they will be encountering a complex legal process at a time when they are undergoing significant emotional stress. This is one reason that family courts are specialised, with processes designed to aid families in managing the emotional, as well as the legal, consequences of their situation: see Chapter 2. In addition, lawyers acting for families should ideally appreciate the emotional state of a family suffering a breakdown. This is desirable to assist lawyers in understanding how best to manage clients. Moreover, decisions will be made (most importantly about parenting matters) that will rely, in part, on an assessment of the behaviour of family members. This behaviour should be considered in light of what is known about how normal families react to family breakdown. For this reason, we will outline briefly some of the literature on the psychological impacts of relationship breakdown on families. 1.81 When families separate, it is normal for each member to experience feelings of loss and grief, similar to those felt when a loved one dies. The resultant emotional turmoil is experienced not just by the couple themselves, but also by their children and members of their extended families. Kubler-Ross126 identified five stages of grief that individuals experience when they lose someone or something of importance in their lives: denial, anger, bargaining, depression and acceptance. These stages are not always experienced sequentially, and sometimes an individual will move backwards and forwards between different stages before reaching acceptance of the finality of the situation and the resultant changes caused to their life. Denial may be characterised by feelings of disbelief that this loss is occurring and thoughts such as ‘this cannot really be happening to me’, and is often seen at the initial stage of separation. Anger is often displaced onto the ex-partner, who may be blamed for causing the breakdown of the relationship, even though there is clearly responsibility on both sides. Bargaining, in the form of pleading, promising and offering deals, is a strategy used to try to

win back the person, or to minimise the harm caused by the separation. When the loss cannot be denied, depression often sets in and sadness, weeping and self-destructive behaviours — such as abuse of alcohol and drugs — may occur. In extreme cases, suicidal or homicidal threats may be elicited. In most cases, a point of acceptance is finally reached where couples can move on with their lives, form new partnerships and parent their children with minimal conflict. However, while they are working their way through the emotionality of separation, parents are unlikely always to behave rationally, or in the best interests of their children. [page 47] 1.82 In cases that come before the family courts, where domestic violence and child abuse feature in 60–70 per cent of matters,127 women tend to initiate more separations than men. Unlike men, women have typically begun to separate emotionally from their partners prior to the physical separation. Separation is often preceded by women asking their husband to attend counselling, or to change aspects of their behaviour that are causing difficulties in the relationship. In these circumstances, men will often deny there is a problem, especially where violence is an issue, and therefore when separation takes place they are just beginning the process of emotional separation. How adults cope with separation is largely determined by their personality, who initiated the separation, the individual’s previous experience of loss, and the degree of emotional separation they have from the lost partner. 1.83 How children cope with grief and loss is much more complex and is not usually well understood by parents or the legal system. Their ability to cope with parental separation is dependent on their personality, their previous experience of loss, how they perceive their parents to be coping, their primary emotional

attachment, their developmental stage and the level of parental conflict they experience. As children are less able than adults to articulate their feelings about the separation and resultant parental conflict, these feelings are more likely to be expressed behaviourally and are directly related to the child’s developmental stage.128

Infants and toddlers 1.84 Children in this age group are developmentally at the stage where they are learning to become a separate individual. They may demonstrate difficulty with parental conflict with the following behaviours: irritability; clinging and refusal to leave primary attachment figure; defiance and lack of cooperation; physical resistance; and behavioural regression; for example, bedwetting or regressed speech. [page 48]

Preschoolers 1.85 Children in this age group are at the stage of becoming a gendered individual so, in addition to the behaviours mentioned above, may begin to identify with or show a preference for the same-sex parent. This may cause the other parent, if emotionally vulnerable, to feel betrayed, rejected or attacked. Boys at this stage may imitate their father and be rejecting of their mother, but may also be anxious about separation from their mother. They may engage in sexualised play that can lead to

allegations of abuse. Girls at this stage may imitate their mother and be rejecting of their father. Alternatively, they may become oppositional to their mother or reject femininity in themselves and their mother.

School age 1.86 Children at this stage are struggling to feel loved, good and competent, and may be preoccupied with eliciting a positive parental response. They may: tell each of their parents what they think that parent wants to hear; lack trust; feel fragmented; see things in concrete, black-and-white terms (all good or all bad); have poor self-esteem; not cope with criticism; and align with one parent. Problems emerge when parents blame each other for these responses, not realising that they are developmentally appropriate for children in conflict situations.

Helping younger children transition 1.87 When parents separate and one parent leaves the home, the child may have fears that the other (residential) parent will leave. They may feel anxious at contact pick-up and drop-off times. They will want to know who will be there and where transition will occur. At these times, children always need to be in the hands of an adult who is trusted by them. Where there is

conflict between parents, transition may be assisted in the following ways: use of a transitional person; for example, a grandparent or an aunt to take the child between parents; use of transitional objects; for example, a teddy bear, favourite rug or toy to accompany the child; common identical calendars showing contact dates in each home; picture of Dad at Mum’s house; [page 49] picture of Mum at Dad’s house; and common photographs of family, pets, outings etc. at each house.

Early adolescence 1.88 This is the stage where the young person is normally beginning to separate from their parents, developing a positive sense of self, affirming gender and sexuality, feeling capable, being trusting and autonomous with peers, and internalising a sense of morality. Adolescents may: be self-righteous; be intolerant of one parent; manipulate parents; be critical or judgmental; spy on a parent; sabotage relationships or contact; and be rejecting. All these behaviours may be developmentally appropriate where

parents are in high conflict. Conflicted parents are not united and often cannot deal with typically rebellious adolescent behaviour. This can lead to rejection of the child, which may exacerbate parental conflict and may force the child towards the other parent, when they really need to be separating from both. Parents need to remain in the parental role and not become dependent on the child. They need to support the child’s independence and remain sensitive to the needs of the adolescent. Adolescents may prefer contact without siblings and may prefer to meet the contact parent for a movie, meal, coffee or other activity, rather than a sleepover. 1.89 In children of all ages, symptomatic behaviour will be worse the more the children feel caught up in their parents’ conflict.

Reading the signs 1.90 Once the emotional context is understood, it is easy to see how disputes may be exacerbated either because parents are in a compromised emotional state and so struggling to put their child’s interests ahead of their own, or because parents (quite naturally) misinterpret the reason for the behaviour of their children. Ideally, parents need to work together to help children cope with the stress of a parental separation. Of course, this will not always be possible. 1.91 One claim that has commonly arisen in cases is that one parent is attempting to ‘alienate’ the child from the other parent. Unfortunately, reliance on ‘parental alienation syndrome’ gained some currency for a period, before the work of [page 50]

Richard Gardner129 was discredited.130 Children may exhibit alienated behaviours without being rehearsed or trained (though of course some parents will, whether consciously or not, behave in a way that does not support the relationship with the other parent). So, influencing a child may be unconscious in the other parent, and/or alienated behaviour on the part of the child may be a developmentally appropriate response to perceived parental conflict. In other words, the meaning of a child’s behaviour, and a parent’s response to it, is complex; however, parents may naturally seek to blame the other. Psycho-educational programs for separating parents, which focus on the needs of children, may be helpful in changing parents’ perceptions of their children’s behaviour and emotional needs. 1.92 It is not possible to rehearse in detail all of the psychological literature relevant to family law disputes in a book such as this. However, it is incumbent on those working in the field to be aware of the need to take account of the particular emotional context in which disputing parties find themselves, and to approach parenting disputes with an understanding of how adults and children respond to family breakdown and conflict. 1.

Vintage Publishing, London, 2010.

2. 3.

George Routledge, London, 1930. F Pollock and F Maitland, A History of English Law Before the Time of Edward I, vol 2, 2nd ed, Cambridge University Press, Cambridge, 1912, p 389.

4.

J Jackson, The Formation and Annulment of Marriage, 2nd ed, Butterworths, London, 1969, p 21. For good measure, he managed to find some other grounds as well, such as Anne’s alleged adultery with four courtiers, to enable him to use that ultimate method of annulment, execution!

5.

6. 7. 8.

Cited in H Finlay, To Have But Not To Hold: A History of Attitudes to Marriage and Divorce in Australia 1858–1975, The Federation Press, Sydney, 2005, p 10. For simplicity, the abbreviation ‘FLA’ will be used in this book.

9.

Depending on how you calculate it, an annual wage of £1000 in 1845 would equate to a wage of something like £88,360 in 2014. O McGregor, Divorce in England, Heinemann, London, 1957, p 16.

10.

C Dickens, Barnaby Rudge, Penguin, Harmondsworth, 1973, Ch 67. See also A Tale

11. 12.

of Two Cities, Arcturus Classics, London, 2009, by the same author. (1799) 1 Hag Ecc 789. Ibid at 790.

13. 14.

(1790) 1 Hag Con 35. Cited in House of Commons Papers, Scholar Select, Great Britain, Parliament, House of Commons, vol 40, p 15, [XXXIX].

15. 16.

Hansard, House of Lords, 25 May 1857, vol 145, col 813. (1799) 1 Hag Ecc 789.

17. 18.

(1919) 36 TLR 106. Methuen & Co, Dunfermline, 1937.

19. 20.

[1943] AC 517. It was not such an innovation, having been previously introduced in New Zealand and some Australian states.

21. 22.

It was also introduced into the Matrimonial Causes Act 1959 (Cth). [1943] AC 517.

23. 24.

Ibid at 525. (1948) 76 CLR 529.

25. 26.

Cmnd 9678, 1956. [1964] AC 644.

27. 28.

[1964] AC 698. [1895] P 315 at 322 (affirmed by the House of Lords [1897] AC 395).

29.

Archbishop of Canterbury’s Group on the Divorce Law, Putting Asunder: A Divorce Law for Contemporary Society, SPCK, London, 1966. Cmnd 3123, 1966.

30. 31. 32.

Cf Pheasant v Pheasant [1972] Fam 202. For further discussion, see HA Finlay, ‘The Grounds for Divorce: The Australian Experience’ (1986) 6(3) Oxford Journal of Legal Studies 368.

33. 34.

Marriage Act 1961 (Cth) s 89. P Toose, R Watson and D Benjafield, Australian Divorce Law & Practice, Law Book Co, Sydney, 1968, p vii.

35. 36.

(1976) 134 CLR 495. L Murphy, Second Reading Speech, Family Law Bill 1974.

37. 38.

FLA s 48. FLA s 48(2).

39. 40.

Matrimonial Causes Act 1973 (UK) s 1. See L Young and G Monahan, Family Law in Australia, 7th ed, LexisNexis Butterworths, Sydney, 2009, [2.09] for further detail on this action.

41.

For a discussion, see H Finlay, ‘Farewell to Affinity and the Calculus of Kinship’ (1976) 5 University of Tasmania Law Review 16. Cf Matrimonial Causes Act 1959 (Cth) Second Schedule; FLA s 51(3); Marriage Act

42.

1961 (Cth) ss 23, 23B. 43. 44.

FLA s 21. FLA ss 20, 21.

45. 46.

FLA s 7. FLA s 31.

47. 48.

FLA s 97(3). Note the new ‘less adversarial trial’ processes for parenting disputes, introduced in 2006 and discussed at 8.69ff.

49.

50.

J Dewar, B Smith and C Banks, Litigants in Person in the Family Court of Australia, Research Report No 20, Family Court of Australia, 2000. See also R Hunter et al, The Changing Face of Litigation: Unrepresented Litigants in the Family Court of Australia, Research Report, Law and Justice Foundation, August 2002. This of course has created its own challenges for the Family Court, as evidenced by the project initiated by the court in 2000: ‘Self-represented Litigants: A Challenge’ — see www.familycourt.gov.au (accessed 8 August 2012). The Family Court of Australia’s Annual Report for 2006–07 showed that the proportion of cases where both parties were legally represented was increasing; however, the 2011–12 Annual Report indicated that the number of self-represented litigants had remained relatively stable over the previous five years. FLA s 22(2)(a).

51. 52.

FLA s 22(2)(b). See also Family Court Act 1997 (WA).

53. 54.

Royal Commission on Human Relationships, Final Report, vol 4, 1978, p 1. Ibid, p 31, [14].

55.

ABS, 4442.0, Family Characteristics and Transitions, Australia, 2012–13, www.abs.gov.au/ausstats/[email protected]/mf/4442.0 (accessed 5 August 2015). The ABS defines a blended family as one with both step-children and biological children of the couple.

56. 57. 58.

Hyde v Hyde (1866) LR 1 P & D 130 at 133. Marriage Act 1961 (Cth) s 5 (as amended by the Marriage Amendment Act 2004 (Cth)). For a discussion, see D Cooper, ‘For Richer for Poorer, in Sickness and in Health: Should Australia Embrace Same-sex Marriage?’ (2005) 19 Australian Journal of Family Law 153.

59. 60.

Marriage Act 1961 (Cth) s 46(1). H Finlay, ‘Defining the Informal Marriage’ (1980) University of New South Wales Law Journal 279 at 283–4.

61. 62.

(1982) 2 NSWLR 80; 8 Fam LR 598. Ibid at 90; 614.

63.

Though actual numbers of divorces are declining: see ABS, 3310.0, Marriages and Divorces, Australia, 2013, www.abs.gov.au (accessed 5 August 2015). ABS, 4102.0, ‘Lifetime Marriage and Divorce Trends’, Australian Social Trends, 2007, www.abs.gov.au (accessed 15 May 2012).

64.

65.

Ibid, citing R Parker, ‘Perspectives on the Future of Marriage’, (2005) 72 Family Matters 78.

66.

ABS, 4102.0, ‘Lifetime Marriage and Divorce Trends’, Australian Social Trends, 2007, www.abs.gov.au (accessed 15 May 2012). ABS, 1301.0, ‘Marriages, Divorces and De Facto Relationships’, Yearbook Australia, 2009–10, www.abs.gov.au (accessed 5 August 2015).

67. 68. 69. 70. 71.

72. 73. 74. 75. 76.

77. 78.

79.

ABS, 4102.0, Australian Social Trends, March Quarter 2012, www.abs.gov.au (accessed 5 August 2015). ABS, 4102.0, Australian Social Trends, March Quarter 2012, www.abs.gov.au (accessed 5 August 2015). ABS, 1301.0, ‘Marriages, Divorces and De Facto Relationships’, Yearbook Australia, 2009–10, www.abs.gov.au (accessed 5 August 2015). Though widely used, including in the relevant modern legislation, the term ‘de facto relationship’ is something of a misnomer as the ‘relationship’ is real. As the term ‘de facto’ relates to the relationship being in substance like a marriage, though not legally one, it is more accurate to use the term ‘de facto marriage’; however, this may be confusing to those not acquainted with Latin, hence the adoption of the current term. M Sturma, ‘The Eye of the Beholder: The Stereotype of Women Convicts 1788– 1852’ (1978) 34 Labour History 3. Ibid. See s 16(1) of the repealed Act; see now Relationships Act 2003 (Tas) ss 36–38, 46– 53. Those provisions have now been replaced: see the discussion of South Australian de facto relationship law in Chapter 5. See Family Court Act 1997 (WA) (as amended by the Family Court Amendment Act 2002 (WA)). See also Commonwealth Powers (De Facto Relationships) Act 2003 (NSW); Miscellaneous Acts Amendment (Same Sex Relationships) Act 2008 (NSW). Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth). For a detailed discussion of the various schemes, see O Rundle, ‘An Examination of Relationship Registration Schemes in Australia’ (2011) 25(2) Australian Journal of Family Law 25. Queensland has also recently passed the Civil Partnerships Act 2011, which encompasses same-sex unions. See O Rundle, ‘An Examination of Relationship Registration Schemes in Australia’ (2011) 25(2) Australian Journal of Family Law 121 at 151.

80. 81.

See, for example, Domestic Relationships Act 1994 (ACT). A Nicholson, ‘The Changing Concept of the Family: The Significance of Recognition and Protection’ (1997) 11 Australian Journal of Family Law 13 at 16.

82. 83.

Ibid. Obergefell v Hodges, Director, Ohio Department of Health 772 F 3d 388 (2015).

84.

For a discussion of the arguments, see A Sifris and P Gerber, ‘Same-sex Marriage in Australia: A Battleground for Equality’ (2011) 25(2) Australian Journal of Family Law

85. 86. 87.

88.

96 at 108–15. (1999) 198 CLR 511. Ibid at 553–4. Marriage Act 1961 (Cth) ss 5, 88EA (as amended by the Marriage Amendment Act 2004 (Cth)). For a discussion, see D Cooper, ‘For Richer for Poorer, in Sickness and in Health: Should Australia Embrace Same-sex Marriage?’ (2005) 19 Australian Journal of Family Law 153. Commonwealth v Australian Capital Territory [2013] HCA 55; (2013) 88 ALJR 118; 304 ALR 204.

89. 90.

P Maley and S Ryan, ‘ACT Made to Axe Gay Unions’, The Australian, 5 May 2008. For a detailed consideration of the schemes, and their history, see O Rundle, ‘An Examination of Relationship Registration Schemes in Australia’ (2011) 25(2) Australian Journal of Family Law 121.

91.

A Sifris and P Gerber, ‘Same-sex Marriage in Australia: A Battleground for Equality’, (2011) 25(2) Australian Journal of Family Law 96 at 99. ALRC, Report No 67, Interim: Equality Before the Law: Women’s Access to the Legal System, AGPS, Canberra, 1994, [1.2]–[1.3].

92. 93. 94. 95. 96. 97. 98.

ALRC, Report No 69, Part I: Equality Before the Law: Justice for Women, AGPS, Canberra, 1994, [2.30]. Ibid, [9.4]. See R Graycar and J Morgan, The Hidden Gender of Law, 2nd ed, Federation Press, Leichhardt, 2002, Ch 10 and the literature cited in that chapter. ALRC, Report No 69, Part I: Equality Before the Law: Justice for Women, AGPS, Canberra, 1994, [1.4], [2.8], [2.9], [2.22]. Ibid, Ch 8; R Graycar, ‘The Relevance of Violence in Family Law Decision Making’ (1995) 9 Australian Journal of Family Law 58 at 63–6. ALRC, Report No 69, Part I: Equality Before the Law: Justice For Women, AGPS, Canberra, 1994, [9.6]–[9.7].

99.

ALRC, Report No 67, Interim: Equality Before the Law: Women’s Access to the Legal System, AGPS, Canberra, 1994, [3.2]. 100. On men as victims of family violence more generally, see Dept of Attorney-General, Equality Before the Law Benchbook, 2009, produced for the Supreme Court of Western Australia, [13.2.5], available at www.supremecourt.wa.gov.au (accessed 21 June 2012). 101. For a discussion of this literature and reference to Australian family law cases that cite this research, see J Wangmann, Different Types of Intimate Partner Violence — An Exploration of the Literature, Issues Paper No 22, Australian Domestic Violence Clearinghouse, University of New South Wales, October 2011. 102. Available at www.familycourt.gov.au and www.federalcircuitcourt.gov.au respectively (accessed 17 August 2015). 103. For discussion of this, see B Pease, Engaging Men in Men’s Violence Prevention: Exploring the Tensions, Dilemmas and Possibilities, Issues Paper No 17, Australian Domestic Violence Clearinghouse, University of New South Wales, 2008.

104. ABS, 4510.0, Recorded Crime — Victims, Australia, 2010, available at www.abs.gov.au (accessed 16 August 2015). 105. Australian Institute of Criminology, Assault, available at www.aic.gov.au (accessed 18 March 2012). 106. ABS, 1301.0, Crime in Twentieth Century Australia, 2001 Yearbook Australia, available at www.abs.gov.au (accessed 16 August 2015). 107. Available at www.dss.gov.au (accessed 16 August 2015). 108. See, for example, ALRC, Report No 69, Part I: Equality Before the Law: Justice For Women, AGPS, Canberra, 1994, Ch 9; J Behrens, ‘Domestic Violence and Property Adjustment: A Critique of “No Fault” Discourse’ (1993) 7 Australian Journal of Family Law 9; R Graycar, ‘Gendered Assumptions in Family Law Decision-making’ (1994) 22 Family Law Review 278; R Graycar, ‘The Relevance of Violence in Family Law Decision-making’ (1995) 9 Australian Journal of Family Law 58; K Murray, ‘Domestic Violence and the Judicial Process: A Review of the Past 18 Years — Should it Change Direction?’ (1995) 9 Australian Journal of Family Law 26. 109. ALRC, Report No 69, Part I: Equality Before the Law: Justice For Women, AGPS, Canberra, 1994, [9.2]. 110. D Fryer, ‘False Allegations in Family Law Proceedings: Using the Family Court as a Sword, not a Shield’ (2013) Family Law Review 137. 111. Jaeger & Jaeger (1994) 18 Fam LR 126; FLC ¶92-492; JE & BG (1994) 18 Fam LR 225; FLC ¶92-516. See also P Parkinson, ‘Custody, Access and Domestic Violence’ (1995) 9 Australian Journal of Family Law 41; J Johnston, ‘Domestic Violence and Parent– Child Relationships in Families Disputing Custody’ (1995) 9 Australian Journal of Family Law 12. 112. Chief Justice A Nicholson, ‘Foreword’ (1995) 9 Australian Journal of Family Law 1 at 2–3. 113. This commenced operation on 11 June 1996. 114. ALRC, Report No 69, Part I: Equality Before the Law: Justice For Women, AGPS, Canberra, 1994. 115. Chief Justice A Nicholson, ‘Foreword’ (1995) 9 Australian Journal of Family Law 1 at 3. 116. See, for example, J Behrens, ‘Shared Parenting: Possibilities … and Realities’ (1996) 21 Alternative Law Journal 213; R Alexander, ‘New Mantras in Family Law’ (1996) 21 Alternative Law Journal 276. 117. J Dewar and S Parker, ‘The Impact of the New Part VII Family Law Act 1975’ (1999) 13 Australian Journal of Family Law 96. See also C Banks et al, ‘Review of Exposure Draft of the Family Law Amendment (Shared Parental Responsibility) Bill 2005’ (2005) 19 Australian Journal of Family Law 79 at 89–90. 118. C Dalton, ‘When Paradigms Collide: Protecting Battered Parents and Their Children in the Family Court System’ (1999) 37 Family and Conciliation Courts Review 273. 119. See, for example, the comments in House of Representatives Standing Committee on Family and Community Affairs, Every Picture Tells a Story: Report on the Inquiry into Child Custody Arrangements in the Event of Family Separation, 2003, [2.2]–[2.9]. 120. See, for example, the empirical study of Dr R Kaspiew that highlighted the

significant difficulty mothers have in restraining contact with violent fathers: R Kaspiew, ‘Violence in Contested Children’s Cases: An Empirical Exploration’ (2005) 19 Australian Journal of Family Law 112. 121. Ibid. 122. FLA s 60CC(2A). 123. This is known as a ‘Kennon’ contribution or adjustment, based on the case of Kennon v Kennon [1997] FLC ¶92-757. For a discussion of how this case has been applied, see P Esteal, C Warden and L Young, ‘The Kennon Factor: Issues of Indeterminacy and Floodgates’ (2014) 28 Australian Journal of Family Law 1. 124. S Middleton, ‘Domestic Violence, Contributions and s 75(2) Considerations: An Analysis of Unreported Judgments’ (2001) 15 Australian Journal of Family Law 230; S Middleton, ‘Domestic Violence and Contributions to the Welfare of the Family: Why Not Negative?’ (2002) 16 Australian Journal of Family Law 26; S Middleton, ‘Matrimonial Property Reform: Legislating for the “Financial Consequences” of Domestic Violence’ (2005) 19 Australian Journal of Family Law 9. See also P Nygh, ‘Family Violence and Matrimonial Property Settlement’ (1999) 13 Australian Journal of Family Law 10. 125. S Middleton, ‘Matrimonial Property Reform: Legislating for the “Financial Consequences” of Domestic Violence’ (2005) 19 Australian Journal of Family Law 9 at 28. In this article, Middleton traces the support for an amendment to s 75(2) and why a proposed amendment to this effect was unsuccessful. 126. E Kubler-Ross, On Death and Dying, Tavistock Publications, London, 1969. 127. D Bagshaw et al, Family Violence and Family Law in Australia: The Experiences and Views of Children and Adults from Families who Separated Post 1995 and Post 2006, Attorney-General’s Department, Canberra, 2010; T Brown et al, Violence in Families, Report No 1: The Management of Child Abuse Allegations in Custody and Access Disputes Before the Family Court of Australia, Family Violence and Family Court Research Program, Monash University, Melbourne, 1998; R Kaspiew et al, Evaluation of the 2006 Family Law Reforms, Australian Institute of Family Studies, Melbourne, 2009. 128. JR Johnston and V Roseby, In the Name of the Child, The Free Press, New York, 1997. 129. R A Gardner, Parental Alienation Syndrome, Creative Therapeutics, Cresskill, NJ, 1998. 130. See the discussion in Irish v Michelle [2009] FamCA 66 at [78]–[79]. Note also the reference to an expert witness having successful disciplinary proceedings brought against them for referring to ‘parental alienation syndrome’ in SS v AH [2010] FamCAFC 13 at [71]. It nonetheless seems that, at times, the status of this so-called syndrome is in doubt in court: see Maurer v Van Laren [2012] FamCA 8 at [108]– [113]. For a decision that canvasses the controversy surrounding Gardner’s work, and the broader research about parental behaviour that has the effect (whether intended or not) of alienating a child from a parent, see Udall & Oaks [2010] FMCAfam 1482 at [45]ff.

[page 51]

2 DISPUTE RESOLUTION IN FAMILY LAW ___________________________

Introduction 2.1 From the beginning of the Commonwealth’s substantial involvement with family law in 1959, there have been innovative legislative provisions designed to encourage the parties to a matrimonial dispute to reconcile their differences, where possible. Initially, these were designed to promote marital reconciliation and, to this end, courts were enjoined to facilitate adjournments and discussions if there seemed any chance of a successful reconciliation. It has long been recognised that the problem with going to court, particularly in family matters, is that in a common lawbased jurisdiction, the courts proceed by the adversarial system. The negative effects on children exposed to or used as pawns in their parents’ disputes are well known and documented. Research has clearly indicated that the adversarial system escalates conflicts and impacts adversely on children.1 Common sense dictates that the best outcomes for children are promoted through flexibility and responsiveness to children’s needs at different stages in their lives, and this remains the inherent difficulty with any court-

imposed solution.2 Recognition of the limitations of the adversarial process in resolving family disputes and the need to cut costs and address frustrations expressed about the family law system has led to various attempts to direct family disputes away from litigation.3 2.2 From its inception, the Family Law Act 1975 (Cth) (FLA) — and through it the Family Court — has encouraged what was then referred to as ‘alternative dispute resolution’ (ADR). This approach survives in the present s 13B of the FLA: if the court considers there is a reasonable possibility of reconciliation between the parties, it may adjourn proceedings and advise the parties to attend family [page 52] counselling. Furthermore, s 13C enables the court to refer the parties to family counselling, family dispute resolution and other family services at any stage during the proceedings. Over time, this approach has been joined by more elaborate provisions. Family mediation was first introduced into the FLA in 1991 with the passing of the Courts (Mediation and Arbitration) Act 1991 (Cth). This was followed in 1995 by the Family Law Reform Act 1995 (Cth), which inserted new Pts II and III into the FLA, and replaced the term ‘alternative dispute resolution’ with ‘primary dispute resolution’. This change in terminology was intended to convey that dispute resolution processes, rather than litigation, should be considered the first option in family law proceedings rather than an alternative to court proceedings. 2.3 The most significant reforms incorporating family dispute resolution services within the family law system were implemented through the passing of the Family Law Amendment (Shared Parental Responsibility) 2006 Act (Cth). Prior to the coming into operation of these reforms, figures released by the

Family Court of Australia indicated that approximately 5 per cent of cases in which applications were made for final orders ended with a judgment, with the majority settling before then.4 Nevertheless, these reforms were promoted as being aimed at bringing about a ‘cultural shift’ and ‘generational change’ in family law.5 In accordance with a general trend towards nonadversarial dispute resolution,6 the legislation encourages a cooperative approach to post-separation parenting arrangements. The centrepiece of these reforms was the establishment of 65 Family Relationship Centres throughout Australia. A budget of $400 million was allocated to their establishment. The FRCs, while linked to the family courts through the FLA, are situated outside the court system and thus may be regarded as a satellite system for resolving family law disputes. 2.4 The 2006 reforms introduced a number of new Parts into the FLA which are related to what are now called ‘family dispute resolution’ (FDR) procedures. They comprise Pt II (non-court based family services), Pt III (family consultants), Pt IIIA (obligations to inform people about non-court based family services and about court processes and services) and Pt IIIB (court’s powers in relation to court and non-court based family services). Arbitration is dealt with in Div 4 of Pt II, Div 2 of Pt II deals with family counselling, and Div 3 of Pt II deals with with FDR. [page 53]

Out-of-court FDR 2.5 Part II of the FLA makes provision for what are described as ‘non-court based family services’. Where the dispute involves parenting issues, these services are in the form of family

counselling and FDR (Divs 2 and 3), and arbitration where it involves a financial matter (Div 4). 2.6 Dispute resolution processes are not new to the Australian legal landscape and have been used in commercial and community settings for many years. Over time, a number of ‘outof-court’ FDR processes have been introduced, with successive Australian governments supporting the privatisation of dispute resolution processes and providing resources to support the development of these processes within the community.7 FDR services can be provided by a range of individuals such as lawyers, social workers and psychologists. FDR is available at various community and neighbourhood dispute resolution centres as well as private organisations and legal aid commissions, many of which are government funded.8

Family Relationship Centres 2.7 Family Relationship Centres (FRCs) were established ‘to provide information, advice, and dispute resolution services to families to help them reach agreement on parenting arrangements without the need to go to court’.9 They are funded by the Commonwealth Government but run by non-governmental organisations selected on a tender basis. They are aimed at providing support and assistance to intact and separated families.10 It appears that FRCs — though designed to cover a wide range of family issues from pre-relationship, to intact relationships and parenting, to post-separation — are predominantly dealing with parenting disputes between separated couples. These centres are designed to act as the first point of entry; a gateway of support for separated families.11 They cannot provide all necessary services — for example, anger management or stress management counselling — but are the gateway to numerous services that might be required by families who are experiencing difficulties. In

relation to separated parents, the focus is on keeping parents out of court by providing a dispute resolution [page 54] service that will encourage parents to sit down together, focus on their children and agree on parenting arrangements.12 At their inception, the FRCs provided three hours of free FDR services to each client. The fee structure has since changed. FRCs now provide up to one hour of a joint session free of charge. For those clients earning less than $50,000 gross per annum or receiving Commonwealth health and social security benefits, the second and third hours of the session are also provided free of charge. Centres will charge clients earning $50,000 or more gross annual income $30 per hour for the second and third hours of FDR.13 When FRCs were established, it was envisaged that the majority of the prospective litigants would be channelled through the FDR process and resolve most of their issues, thus avoiding or at least limiting the need for any judicial determination. Parties can formalise these arrangements either by entering into a parenting plan (see 8.40ff) seeking court orders by consent (see 8.5) or, in the case of financial matters, entering into a binding financial agreement (see Chapter 15). The first of the 65 FRCs opened in 2006; the Centres are scattered throughout the country, with each Centre servicing about 300,000 people. The family law system quickly felt the impact of the establishment of the FRCs, with the number of applications for final orders for child-related matters (including those where property issues were being litigated) declining significantly between 2005–06 and 2008–09.14 In addition, studies indicate that in the three years following the establishment of the FRCs, the use of dispute resolution services increased from 67 per

cent to 73 per cent, and correspondingly access to the courts diminished from 40 per cent to 29 per cent.15 The Australian Institute of Family Studies (AIFS) study into the 2006 reforms found that 70 per cent of clients gave the FRCs a favourable [page 55] rating and concluded that the ‘client satisfaction ratings [were] quite positive’.16 Although the objectives and the intentions of FRCs include strengthening family relationships and assisting families to stay together, the Centres have only a modest level of direct involvement with intact families, with the majority of their work aimed at separating families and associated services.17 The Commonwealth Department of Families, Housing, Community Services and Indigenous Affairs provides an Operational Framework for Family Relationship Centres.18

What is FDR and who are FDR practitioners? 2.8 What, then, is FDR in the context of family law proceedings? FDR is (somewhat loosely) defined in s 10F of the FLA to be a nonjudicial process: (a) in which a family dispute resolution practitioner helps people affected, or likely to be affected, by separation or divorce to resolve some or all of the their disputes with each other; and (b) in which the practitioner is independent of all of the parties involved in the process.

It has been suggested that this is both a narrow and wide definition. It is wide because the kind of ‘help’ that the FDR practitioner is able to provide is unspecified,19 but it is narrow

because potentially it could exclude processes not aimed directly at dispute resolution. No particular form of FDR is mandated. 2.9 Other than s 10G, which sets out who can act as an FDR practitioner, and s 10F, which emphasises the independence of the FDR practitioner, there is little else in the Act to regulate the process of FDR. More detailed regulation of the practice of FDR is provided in the Family Law (Family Dispute Resolution Practitioners) Regulations 2008 (Cth) (FLFD Regulations): see 2.11. The National Alternative Dispute Resolution Advisory Council (NADRAC) was an independent non-statutory body established in October 1995 and dis-established in 2013. During the time it was in existence, NADRAC provided expert policy advice to the Attorney-General on the development of ADR and promoted the use of ADR. [page 56] NADRAC produced a number of significant publications on ADR,20 including one on how issues of conduct obligations, confidentiality, inadmissibility and practitioner immunity affect the integrity of ADR processes.21 In 2012, NADRAC produced Your Guide to Dispute Resolution, a resource to help ordinary Australians understand more about ADR.22 NADRAC was also involved in the development of mediation standards, and the formation of the Mediation Standards Board. This Board oversees the National Mediation Accreditation System, which is a voluntary industry system under which organisations may be qualified as Recognised Mediator Accreditation Bodies that may accredit mediators.23 2.10 At the centre of the dispute resolution process is the FDR practitioner. Section 10G(1) defines FDR practitioner for the purposes of the legislation, and this includes ‘a person who is accredited as a family dispute resolution practitioner under the

Accreditation Rules’: s 10G(1)(a). There are no compulsory registration or accreditation requirements in Australia for mediators and other dispute resolution practitioners to practise in the family law system or in general. However, as only accredited FDR practitioners are able to issue s 60I certificates (see 2.27), and in order for the Act and FLFD Regulations to apply to their practice, accreditation is essential for practitioners working with parties to parenting disputes. An FDR practitioner is required to have met the accreditation standards and to remain accredited on the FDR Register.24 Accreditation is available under the FLFD Regulations.

Family Law (Family Dispute Resolution Practitioners) Regulations 2008 (Cth) 2.11 The FLFD Regulations set out the criteria for FDR practitioners to be accredited, and create obligations, including those relating to s 60I certificates (see 2.27), in relation to their conduct while working as an FDR practitioner. Part 2 of the FLFD Regulations sets out the criteria for accreditation for FDR practitioners. [page 57] So far as the FDR process and procedures are concerned, there are four relevant regulations: regs 25 and 28–30. When a person is referred to FDR, an intake session is conducted in accordance with reg 25, which sets out those matters that the FDR practitioner must consider when deciding if the matter is one appropriately dealt with by FDR (see 2.35–2.41), and these are: any history of family violence; the parties’ safety; equality of bargaining power; risk of child abuse; the emotional, psychological and physical health of the parties; and any other matter the FDR practitioner

considers relevant.25 The Family Relationship Centre’s Framework for Screening, Assessment and Referrals in Family Relationship Centres and the Family Relationships Advice Line26 provides guidelines for carrying out this assessment. Regulation 28 prescribes information that must be provided to the parties before FDR. This regulation refers only to particular aspects of the process of FDR, such as confidentiality and disclosure requirements, admissibility of statements made in FDR, fees, the effect of the issuance of certificates and the like. Regulation 29 places some general, and basic, obligations on FDR practitioners: to comply with the other regulations; to store records of the FDR safely; to ensure the process is suited to the parties’ needs (eg in relation to venue, timing, etc.); and not to use information gathered from the FDR for personal gain. The regulation goes on to say that the FDR process must be terminated if either party requests it or if the practitioner decides FDR is no longer appropriate: subreg (c). Finally, the FDR practitioner is not permitted to give legal advice unless they are a legal practitioner or the advice is about procedural matters: subreg (d). Regulation 30 covers how potential conflicts of interest are to be dealt with.

Dispute resolution processes 2.12 Dispute resolution processes offer parties to a dispute a range of options that give the parties different levels of control over the way the dispute is resolved. The various processes can be placed on a continuum: where they sit on that continuum depends on the amount of party control over the process and the outcome.27 At one end of the continuum, arbitration — like litigation — gives a high level [page 58]

of control over the process to the arbitrator; the parties submit themselves to the decision of a third party, the arbitrator. At the other end of the continuum, direct negotiation involves two or more parties, with control over the process themselves, communicating and attempting to reach an agreement with each other. In mediation, which sits somewhere along the continuum between the two ends, the parties decide the outcome for themselves. The amount of control exercised by the mediator and the extent to which the mediator guides the parties to a settlement varies, depending on the process role undertaken by the mediator. In facilitative mediation (see 2.14), the mediator takes responsibility for managing the process but plays no role in respect of content by, for example, suggesting possible outcomes to the parties. Whether the parties reach an agreement is for them to decide.28 While the FLA does not specifically mention any particular dispute resolution process other than arbitration, the Family Law Rules 2004 (Cth) identify four processes: negotiation, conciliation conferences, arbitration and counselling.29 Conciliation conferences are discussed at 2.47. In conciliation, the conciliator takes a more directive role with respect to likely and permissible outcomes than a mediator does in mediation, and therefore the process is closer to the arbitration end of the continuum than mediation. Counselling aims to assist people to deal with personal or interpersonal issues and is not a dispute resolution process. For this reason, it does not sit along the dispute resolution continuum. Family counselling is discussed at 2.53.

Negotiation 2.13

Negotiation can be defined as:

… a process where two parties with differences that they need to resolve are trying to reach agreement through exploring for options and exchanging offers — and an agreement.30

To a large extent, negotiation permeates the various processes common to all forms of dispute resolution, both legal and nonlegal. This is no less the case in FDR processes employed both in and out of court. Essentially, negotiation is about bargaining to reach agreement. Negotiation does not necessarily need to take place face-to-face, but may be conducted through letters or electronically, and it may also take a number of forms. Simple bilateral negotiation, for example, [page 59] involves the parties approaching each other directly, without the assistance of a third party, such as lawyers or other intermediaries. The parties have a high level of control over the process as they can decide what the rules of the process are, including when to speak, how to speak, where to talk and how long it might take. Therefore negotiation processes vary greatly according to the rules to which parties agree.31 There is evidence that in family law, many people deal with their disputes through bilateral negotiation without ever coming into contact with the courts or lawyers.32 This is consistent with the reality that in Australia most family law disputes are dealt with informally and only a small proportion reach the courts.33 Parties can also use assisted negotiation, which involves the parties approaching each other with the help of, or through, partisan assistants. These assistants can be friends of the disputants, who offer minimal assistance such as a supportive physical presence, or they may be lawyers or other professionals, who offer advice or even speak for the disputants. The different roles of the partisan assistant will affect the level of control that the disputant has over the negotiation process. In the family law context, different forms of the negotiation process are frequently used to resolve disputes between parties. Parties may enter into direct discussions or they may seek

assistance from a third party such as a lawyer, FDR practitioner or friend. Round-table conferences present a useful forum for parties to negotiate and settle their dispute. These conferences occur when all parties to the dispute meet at one of the lawyers’ offices in an attempt to settle the dispute. They can be used to resolve any kind of legal issue.

Mediation 2.14 With the introduction of primary dispute resolution into the FLA in 1996, mediation became the dispute resolution process that was most often used. The 2006 reform legislation removed all references to mediation from the FLA, and the term ‘mediation’, as well as references to other well-known dispute resolution processes, was replaced with the generic term ‘family dispute resolution’, which [page 60] is dealt with in Pt II Div 3 of the FLA. While the terminology ‘mediation’ has disappeared from the Act, FDR is usually associated with this process. It has been suggested that the dispute resolution process most commonly followed by FDR practitioners is ‘facilitative mediation’ — which is problem-solving and thus resolution-focused.34 NADRAC defines facilitative mediation as a process in which the participants to a dispute, with the assistance of a dispute resolution practitioner (the mediator), identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement. The mediator has no advisory or determinative role in regard to either the content or the outcome of the dispute, but may advise on or determine the process of mediation whereby resolution is attempted. Mediation may be undertaken voluntarily, under a court order, or pursuant to an existing contractual agreement.35

2.15 Facilitative mediation ‘involves a structured communication process and can be described in terms of a series of key stages that the parties are guided through’.36 The initial ‘explanation’ stage is where parties provide the background to the mediation by making opening statements, outlining their concerns and providing details of their expectations for the mediation. This is followed by the ‘clarification’ stage, where the FDR practitioner identifies the common issues and sets them out in the form of an ‘agenda’ so that the mediation process may progress. Once an agenda is agreed on, the role of the FDR practitioner is to guide the parties through the discussion of each item on the agenda in a structured manner, as well as to assist the parties to develop a range of options on which they might agree. The agenda items may be discussed in order of priority. The FDR practitioner will encourage the parties to talk directly to one another and to negotiate a resolution of each particular issue. In order to support the mediation process, and to facilitate confidential discussions, during the ‘exploration’ and ‘negotiation’ stages the FDR practitioner may arrange separate sessions with each party. There is, however, a range of approaches to family mediation that practitioners may adopt. While the facilitative problemsolving/solution-focused approach has become the dominant paradigm over the past three decades37, other approaches include the transformative approach and the narrative approach 38 [page 61] 2.16 The neutrality of the FDR practitioner is regarded as central to the family mediation process: s 10F. FDR practitioners must remain independent, and their role is limited to seeking options from the parties and does not extend to suggesting solutions. Parties are encouraged to ‘own’ their agreement rather than have an agreement imposed on them, as it is thought that parties are

more likely to rate highly, and to adhere to, an agreement that they have arrived at themselves. In this way, facilitative mediation may be distinguished from advisory or evaluative mediation, where the mediator imposes their views and what they consider to be a suitable settlement on the parties. However, even when facilitative mediation is used, the neutrality of the FDR practitioner has been questioned. For example, in cases of extreme power imbalance between the parties, it has been suggested that mediators attempt to redress this imbalance and are thus not entirely independent.39 Furthermore, studies indicate that based on the interests of children, FDR practitioners tend to advocate for children within the dispute resolution process and are thus not entirely neutral in their attempts to resolve differences between adult parties.40 It has also been noted that the legislative requirements of FDR practitioners to assess whether parties have made a ‘genuine effort’ to settle (s 60I(1) and (8): see 2.27) and to inform parties about the need to consider ‘equal’ or ‘substantial or significant’ time (s 63DA(2)) may impinge on the practitioner’s independence and the parties’ ability to control the outcome of the dispute.41 (On parenting time arrangements, see Chapters 8 and 9.)

Child-inclusive mediation 2.17 Child-inclusive mediation puts into practice the notion that children’s views should be given appropriate consideration when resolving post-separation disputes between parents. Childinclusive mediation gives expression to Art 12 of [page 62] the United Nations Convention on the Rights of the Child 1989, which requires that where appropriate:

… the views of the child [be] given due weight in accordance with the age and maturity of the child … the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child.42

The emphasis on children’s rights, together with clinical research that indicates the potential detrimental effects of parental separation on children, led to greater agitation for a childinclusive model for resolving post-separation parental disputes.43 Child-inclusive mediation must be distinguished from childfocused mediation which, as the name suggests, concentrates on the interests of the child in the resolution of post-separation parenting disputes. Child-inclusive dispute resolution, which is used in a number of FRCs and other dispute resolution centres and practices, relies on the mediator to communicate directly with the child and brings the voice of the child to the FDR process. It can be used with children as young as six. Dr Jennifer McIntosh, a researcher and practitioner who has been influential in the development of the child-inclusive mediation model, describes the differences between child-focused and child-inclusive mediation as follows.44 Child-focused dispute resolution

Child-inclusive dispute resolution

The aims of child-focused dispute resolution are to: •

•

[Child-inclusive dispute resolution] is aimed at assisting parents to re-establish or consolidate a secure emotional base create an environment that supports for their children after separation. It disputing parents in actively shares the same goals as those outlined considering the unique needs of each under child-focused practices, and of their children; crucially also includes: facilitate a parenting agreement that preserves significant relationships and supports children’s psychological adjustment to the separation, including recovery from parental acrimony and protection from further conflict;

•

consulting with children in a supportive, developmentally appropriate manner about their experiences of the family separation and dispute;

[page 63]

Child-focused dispute resolution

Child-inclusive dispute resolution

•

support parents to leave the dispute resolution forum on higher rather than diminished ground with respect to their post-separation parenting; and

•

ensuring that the style of consultation avoids and removes any burden of decision-making from the children;

•

ensure that the ongoing mediation/litigation process and the agreements or decisions reached reflect the basic psychodevelopmental needs of each child, to the extent that they can be known without the involvement of the children.

•

understanding and formulating [the] children’s core experience within a developmental framework;

•

validating children’s experiences and providing basic information that may assist their present and future coping;

•

forming a strategic therapeutic loop back to the children’s parents by considering with them the essence of their children’s experience in a manner that supports them to hear and reflect upon their children’s needs; and

•

ensuring that the ongoing mediation/litigation process and the agreements or decisions reached reflect at core the psychodevelopmental needs of each child.

2.18 This model recognises that it is not always appropriate for separating parties to engage in child-inclusive mediation. In order to assess their suitability for child-inclusive mediation, the parties and their children must undergo a careful screening process. At an intake session, an assessment will need to be made as to whether the parents are receptive to their children being interviewed and whether the parents are capable of sustained focus on their children’s interests rather than their own. It is also recognised that

this model has its limitations and is only appropriate if certain basic preconditions are met. These include: at least one child must be of school age; in the absence of an interpreter, both parents must have a working knowledge of English; if mental illness is present, it must be properly managed; and the parties must be screened for family violence. Once it is determined that child-inclusive mediation is safe and appropriate for a particular family, the children are interviewed, with their siblings to begin with, and then separately, by a highly specialised child consultant. The child consultant [page 64] will provide the parents and the FDR practitioner with feedback regarding the children’s responses to the separation and their needs. A number of sessions might be necessary before the child consultant is in a position to make a comprehensive assessment. Against this backdrop, the FDR practitioner will attempt to mediate a resolution of the parenting issues.45 Positive results have emerged from research conducted following the use of this model. A study that compared outcomes over one year for two groups of separated parents who attended mediation over parenting disputes indicated that children who are involved in child-inclusive mediation may have better future relationships with their parents. Furthermore, the arrangements that are achieved are likely to suit that particular family’s situation and, as a result, are more durable.46 A four-year follow-up study consolidated these findings about the benefits of a child-inclusive mediation pathway for families embedded in complex postseparation parenting disputes.47 Further, the researchers in this study concluded, from the longitudinal outcomes from two mediation interventions, that the child-inclusive intervention ‘opened an important door for parents and particularly for fathers,

which significantly shaped their post-separation adjustment, and that of their children’.48

Further FDR processes outside the court system 2.19 In addition to the non-adversarial dispute resolution processes discussed above, there are other non-court processes operating outside the Family Court system.

Collaborative law 2.20 Over the last few decades, a new model of resolving family law disputes known as ‘collaborative law’ or ‘collaborative practice’ has evolved in the [page 65] United States and spread to Canada, the United Kingdom and Australia.49 According to the definition provided by NADRAC: … collaborative law is a form of collaborative practice where the process is led by lawyers representing each of the participants and it has been agreed that the lawyers will cease to act for their client if the matter proceeds to litigation.50

It is called ‘collaborative law’ because ‘instead of each lawyer communicating with their client separately and then advocating and bargaining with the other lawyer in the absence of the clients’, it brings the lawyers and clients together ‘in a nonadversarial setting to negotiate the issues’.51 Before the process begins, the parties, their lawyers, and perhaps other professionals such as mental health and child specialists, enter into a written agreement that during the process they will focus on negotiation

and settlement and agree not to litigate or threaten to litigate. Disqualification of the lawyers from representing the parties in any subsequent legal proceedings relating to the same subject matter is regarded as the ‘definitive principle’ of collaborative law. There is thus both a commitment to resolving the dispute without litigation as well as a significant incentive to parties to finalise the matter with the collaborative lawyers. Clients and lawyers have a duty to disclose all information and agree to negotiate in a constructive manner in order to achieve a mutually acceptable agreement for the family as a whole. In order to hold themselves out as a collaborative law practitioner, lawyers must undergo a training process.52 In January 2006, the then federal Attorney-General asked the Family Law Council to report on whether legal changes needed to be made to support this practice. The ensuing report53 provides a good overview of collaborative law and its place, and potential, in the family law system. Recommendations were made for some amendments to the FLA to support the use of this practice. These recommendations have not progressed any further. [page 66]

Legal aid conference/dispute management 2.21 Legal aid authorities throughout Australia provide a range of services to people seeking to resolve family law disputes. Processes — often referred to as legal aid conferences — have been developed and are utilised when at least one of the parties is legally aided and funding is provided to assist with FDR under the auspices of the legal aid authority.54 The names of these dispute resolution conferences and the models utilised vary from state to state and territory. In the Australian Capital Territory, for example, this style of conferencing is described as ‘shuttle conciliation’.55

In each case, an intake session is conducted to screen for safety issues and, if considered appropriate, the parties are located in separate rooms. Conferences are conducted by a conference chair, who is an accredited FDR practitioner and whose role is to facilitate discussion but not to provide legal advice or to make decisions. Parties will usually appear at the conference with their legal advisers. Under this model the chair of the conference will report to the state/territory legal aid authority regarding the outcome of the conference and will make recommendations, which may involve more legal aid funding for further conferencing or the drafting of minutes of orders by consent. Moreover, if a legally aided party is perceived as acting unreasonably during the course of the conference, legal aid funding may be withdrawn.

Arbitration 2.22 According to s 10L(1), arbitration is a process (other than a judicial process) in which the participants to a dispute present arguments and evidence to an arbitrator who makes a determination. Arbitration is not dissimilar to court proceedings, but it allows the parties to have more control over the process. One of the key differences between arbitration and court proceedings lies in the fact that the arbitrator is usually chosen by the parties themselves. In order to act as arbitrator, the arbitrator is required to meet the requirements prescribed in the Family Law Regulations 1984 (Cth). [page 67] Arbitration proceedings are governed by the FLA. Before the arbitration, parties enter into an arbitration agreement which contains the terms to which the parties have agreed. Arbitration may be conducted in a similar manner to court proceedings, with

witnesses being sworn in and cross-examined, or it may be conducted in a more relaxed manner. Parties can also agree to non-binding arbitration. Arbitration appeared in the FLA in 1991 as a result of recommendations made by the Family Law Council.56 Following these recommendations, both voluntary and compulsory arbitration were included in the original arbitration scheme, but in 2000 the scheme was modified to its present form, which provides only for voluntary arbitration. The relevant provisions are now found in Pt II Div 4 and Pt IIIB Div 4 of the FLA, and Pt 5 of the Regulations.57 Arbitration can only be used in respect of financial matters (property settlement and spousal maintenance) and not parenting issues. Part II Div 4 establishes two categories of arbitration: s 10L(2). Arbitration under s 13E is where parties have started proceedings under Pt VIII (property disputes between married couples) or Pt VIIIAB (property disputes between de facto couples (other than financial agreements)) and all parties consent to the matter, or part of it, being referred — by court order — to arbitration. Section 13E is located in Pt IIIB Div 4. As there are court proceedings on foot in this instance, there is a provision enabling the judge to determine questions of law referred by the arbitrator: s 13G. The other category, ‘relevant property or financial arbitration’, is classified as arbitration other than s 13E arbitration. It has a wider application and is available for all, or any part of, a matter under Pt VIII, Pt VIIIA (financial agreements), Pt VIIIAB, Pt VIIIB (superannuation matters) and s 106A (which refers to execution of instruments by order of court). An award made via either category of arbitration can be given the effect of a court order through registration, by either party, in court: s 13H and regs 67P–67S. The award will not be binding unless it is registered with the court. Once registered, an award can be the subject of a review by a judge, but only on a question of law: s 13J(1). The outcome of such a review can be affirmation,

[page 68] variation or reversal of the award: s 13J(2). Registered awards can also be altered by a court in the circumstances set out in s 13K(2), which is somewhat similar to s 79A, the provision setting out when orders altering interests in property can be overturned: see Chapter 13. Thus, a registered award can be varied by the court where there has been fraud, the award is void, voidable or unenforceable, the award has become impracticable to perform, or there was bias or a lack of procedural fairness in the arbitral process. 2.23 Part 5 Div 2 of the Family Law Regulations 1984 (Cth) sets out various procedural matters relating to the arbitration process and arbitrators. The resemblance to court proceedings is seen in the specialist legal training required of arbitrators (reg 67B), the option of having legal representation (reg 67M), the ability of the arbitrator to require witnesses to attend and give evidence and the right of parties to subpoena witnesses (reg 67N), the obligation of the arbitrator to decide the issues in accordance with the FLA (reg 67I(1)) and the requirement for written reasons: reg 67P. However, where all parties consent, the arbitrator is not bound by the rules of evidence (reg 67O) and, in the absence of any contrary agreement, costs of the arbitration (not including legal fees) are shared equally: reg 67H. Also, the parties can enter into an arbitration agreement, which will set out the terms of the arbitration including procedural matters relating to the arbitration, how the arbitration is to be conducted and the circumstances under which it is to be terminated: reg 67F. The details of the required content of the arbitration agreement are also contained in this regulation. If parties do not enter into an arbitration agreement, then before conducting an arbitration the

arbitrator must give written notice to each party setting out information in relation to the arbitration: reg 67G. Like other FDR processes, there are advantages of arbitration over the court process. These include savings in time and legal costs, choice of decision-maker, more flexibility in process design to suit the parties, and privacy.58 Arbitration can be used to resolve some, if not all, of the financial issues between the parties, even if they are relying on court proceedings to resolve issues relating to their children. 2.24 There has not been widespread use of arbitration in family law matters.59 Concern at the backlog of family law cases waiting for trial and the under-utilisation of arbitration resulted in the then Attorney-General asking the Family Law Council in May 2006 to reconsider the question of how voluntary arbitration might be encouraged and whether arbitration could be made compulsory in financial and [page 69] property matters. The Council issued a Discussion Paper in May 2007.60 Following consultation, in September 2008 the Council submitted a letter of advice to the then Attorney-General suggesting that in order to make arbitration proceedings more attractive, the FLA be amended to provide that where parties went to consensual arbitration, ordered under s 13E of the FLA, it should be possible for the parties to agree that instead of being limited to an appeal on a question of law, review of arbitration proceedings should be by hearing de novo.61 To date, this suggestion has not been acted on. The Family Law Council concluded that a system of discretionary court-ordered arbitration is unlikely to succeed without the support of the courts and the profession. There are signs that the courts and profession are prepared to

offer more support for arbitration of family law matters. The Australian Institute of Family Law Arbitrators and Mediators promotes the attractions of mediation and arbitration as a means of dispute resolution among both practitioners and the wider community.62 The judges of the Family Court have clearly indicated their support for effective and timely arbitration for people who wish to arbitrate rather than litigate their financial disputes, by making rules to address certain gaps previously impeding the use of arbitration.63 These rules now make provision for disclosure and subpoenas, which are additional to the provisions relating to arbitration in Pt 5 of the Family Law Regulations 1984 (Cth).64

Pre-action procedures 2.25 The Family Law Rules 2004 (Cth) require parties to potential court proceedings to take steps to explore areas of resolution and, where a dispute cannot be resolved, to narrow the issues that require a court decision, before commencing proceedings. Rule 1.04 sets out the main purpose of the Rules, which is ‘to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances’.65 Literature supports the early [page 70] intervention of dispute resolution processes, and asserts that parents who attend FDR immediately post-separation are more likely to report increased parental cooperation than those that attended FDR after their divorce; in other words, at least 12 months after separation.66 It is generally accepted that for the majority of couples, litigation should be the path of last resort. Apart from the time that it will take for an application to make its

way through the court system, it is also emotionally and financially draining for all concerned. The adversarial system is not conducive to an amicable resolution of proceedings, and cross examination serves to polarise parties even further. Before instituting proceedings, parties should make a ‘genuine effort’ (s 60I(1)) to resolve their differences by participating in FDR proceedings, or at the very least, explore options for settlement by correspondence; for example, by making an offer of settlement and complying with the duty of disclosure, which requires making full and frank disclosure of their financial circumstances.67 To this end, r 1.05 mandates that all matters, except divorce, child support, and bankruptcy proceedings, are now subject to compulsory pre-action procedures. A party’s failure to comply with a pre-action procedure may be taken into account by the court when considering whether to order costs.68 2.26 There are circumstances in which parties are not obliged to comply with pre-action procedures.69 In parenting cases, a good reason will include that the case involves allegations or the risk of child abuse and family violence, and in property cases that there are allegations of family violence, the risk of family violence, or fraud. In addition, parties are not obliged to embark on pre-action procedures where the application is urgent, the applicant would be unduly prejudiced, or where within the 12 months before the start of the case there has been a previous application in the same cause of action. Schedule 1 of the Family Law Rules 2004 (Cth) sets out in detail the requirements for compliance with the pre-action procedures, as well as the consequences for non-compliance. The Family Law Rules apply only to cases in the Family Court of Australia. For applications issued in the Federal Circuit Court, the provisions of the Federal Circuit Court Rules 2001 (Cth) apply in conjunction with the Civil Dispute Resolution Act 2011 (Cth), and require parties to take ‘genuine steps’ to resolve their matter before commencing proceedings.70

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Parenting disputes and s 60I certificates 2.27 So far as parenting disputes are concerned, since the commencement of the Family Law (Shared Parental Responsibility) Act 2006 (Cth), the pre-action procedures contained in the Family Law Rules 2004 (Cth) have largely been replaced with the provisions in Pt VII Div 1 Subdiv E of the FLA. These provisions were phased in over time, commencing in July 2006: s 60I(2)–(6). Since 1 July 2008, a court may not hear an application under Pt VII unless the application is accompanied by a ‘certificate’ from a FDR practitioner (s 60I(7)), or one of the exceptions contained in s 60I(9) applies: see 2.22. Obtaining a certificate from an FDR practitioner is thus a threshold requirement that must be satisfied before parties can commence proceedings for an order in relation to children. In children’s matters, FDR is well and truly compulsory.71 2.28 As with many rules, there are exceptions. Section 60I(9) sets out the circumstances where parties are not obliged to file a certificate, a number of which might apply in a particular case:72 The orders are sought by consent or in response to an application by the other party. The court is satisfied that there are reasonable grounds to believe that there has been abuse of the child by one of the parties to the proceedings. There is a risk of abuse of the child if there is a delay in applying for an order. There has been or there is a risk of family violence by one of the parties to the proceedings.73 The application concerns a contravention of a recently made parenting order and the court is satisfied that there are

reasonable grounds to believe the person has behaved in a way that shows a serious disregard for their obligations under the order. The application is urgent.74 One of the parties cannot participate effectively in FDR (eg due to location or disability, etc.).75 In addition, the legislation stipulates that where an application was made before 1 July 2007, there is no requirement to file a certificate: s 60I(5). A certificate [page 72] will also not be required where parties are applying for financial orders only, an order in relation to child abduction pursuant to the Hague Convention on the Civil Aspects of International Child Abduction 1980 (see Chapter 8) or child support orders. 2.29 Typically, where there is a parenting dispute and no claims of violence or abuse, and both parties could participate in FDR, a certificate must be obtained. In this way, parties are forced to take steps to use FDR before going to court. Ideally, by participating in the process, even though it might not be the process they would choose, parties reach a negotiated resolution of the dispute with the help of the FDR practitioner. This has been the experience of many more parties since the 2006 reforms than was previously the case: see 2.7. Some matters, however, will not be resolved in this way. If the FDR practitioner considers that FDR is inappropriate, a certificate will be issued at the end of the intake session. Otherwise, if parties embark on FDR, a certificate will be issued at the conclusion of the FDR session. Section 60I(8) of the FLA and Sch 1 of the FLFD Regulations prescribe five types of certificate the FDR practitioner can issue.

One party, after being referred to FDR, did not attend because the other party would not, or did not, attend: s 60I(8)(a). One party, after being referred to FDR, did not attend because, before providing FDR, usually at the intake session, the FDR practitioner decided that FDR was inappropriate having regard to prescribed matters: s 60I(8)(aa). Regulation 25(2) of the FLFD Regulations sets out the factors that the FDR practitioner must consider when making this decision. They include a history of family violence; the safety of the parties; power imbalances among the parties; the risk of child abuse; and the emotional, psychological and physical health of the parties. The Regulations are clear (reg 25(4)): if the FDR practitioner is not satisfied that FDR is appropriate, dispute resolution must not be provided. Both parties attended FDR and made a genuine effort to resolve the issues: s 60I(8)(b). Both parties attended FDR and at least one of the parties did not make a genuine effort: s 60I(8)(c). Both parties began attending FDR, but after taking into account the factors set out in reg 25(2), the FDR practitioner decided that it was inappropriate to continue FDR. In such a case, in accordance with reg 29(c), the FDR practitioner must terminate the FDR process: s 60I(8)(d). 2.30 Section 60I thus requires that the majority of prospective litigants who intend applying for a parenting order, at the very least, make contact with an FDR practitioner, and in most instances attempt FDR before their application under Pt VII of the FLA may be heard. Furthermore, s 60J(1) provides that even where the [page 73] court has reasonable grounds to believe that there has been child abuse or family violence, the court must not hear an application

unless the applicant confirms in writing that they have been advised of the dispute resolution options that are appropriate in the particular circumstances. If the applicant has not received such advice, then the court must refer the applicant to a FDR practitioner or family counsellor: s 60J(4). Section 60J(1) is subject to the exceptions contained in s 60J(2) that where there are reasonable grounds to believe that there is a risk of child abuse if there were to be a delay in applying for the order, or where there is a risk of family violence, s 60J(1) will not apply. In the Family Court, if the parties cannot resolve the matter through FDR, then they must still comply with the other preaction procedures set out in the Family Law Rules 2004 (Cth) r 1.05 and Sch 1, which are aimed at achieving early full and frank disclosure and a narrowing of issues. An intended by-product of this is that it will further encourage an agreement before the matter reaches trial. At first glance, it would seem that FDR could be avoided simply by non-attendance or by a party failing to make a ‘genuine effort’ to settle, thus defeating the purpose of the provisions. However, providing a certificate simply gives the court jurisdiction to hear the matter. Where, for example, the certificate shows nonattendance, and it is the applicant parent who has failed to attend, s 60I(10) requires the court to consider making an order that the applicant attend FDR. So, non-attending applicant parents can be sent back to FDR immediately. This may occur even where the applicant was, as a result of s 60I(9), not obliged to obtain a certificate: see 2.28. Further, at any stage in the proceedings, the court can consider sending parties to counselling or FDR (s 13C) and the court may be influenced in this decision by the type of certificate provided: see the note to s 60I(8).76 There is also scope for a court exercising jurisdiction under the FLA to make orders directing parties to attend FDR in the event that disagreement arises regarding the terms of an order: s 64B(2). Generally, in family law proceedings each party bears their own costs. However, the court can take into

account the type of certificate when considering whether to make a costs order against a party under s 117: see the note to s 60I(8) and r 1.10(2)(d). There are potential financial consequences, therefore, for failure to attend FDR or to make a genuine effort to resolve issues.77 [page 74] 2.31 What constitutes a ‘genuine effort’ under s 60I(1) has given rise to some discussion. Tom Altobelli suggests that it requires a participation in good faith.78 Hilary Astor proposes a four-part definition consisting of: (a) attending family dispute resolution, and (b) willingness to consider options put forward by the other party or the family dispute resolution practitioner, and (c) willingness to consider putting forward options for the resolution of the dispute, and (d) willingness to focus on the needs and interests of the children, to the best of the parties’ ability.79

The nebulous concept of ‘genuine effort’ makes it very hard to give it a precise meaning. However, this accords fully with the discretionary nature of many important family law concepts. One that immediately springs to mind is the ‘best interests’ principle, which guides all decision-making regarding children: see Chapter 8. 2.32 Cases are emerging where failure to comply with the preaction procedures has been a ground of appeal against a first instance decision. In Brianna v Brianna,80 the husband, the putative father, had sworn an affidavit acknowledging that he was the father of the child, and had been registered as the parent of the child. He was therefore presumed to be the father pursuant to ss 69R and 69T of the FLA: see 7.9 and 8.67. He nevertheless denied he was the father of the child. The trial judge ordered that the husband and wife undergo parentage testing. The wife

appealed against this order. One of the grounds of the wife’s appeal was: … the trial Judge’s failure to require the parties to attend family dispute resolution and to hear the application without certification under s 60I of the Act that the parties had been to family dispute resolution.81

In this particular case, the Full Court dismissed the appeal as, at the time the wife had filed her application (March 2007), s 60I(7) was not yet in effect. In future cases, a court may conclude that s 60I(7) does not apply because one of the s 60(9) exceptions is made out; for example, urgency: s 60I(9)(d). In Brianna, the Full Court found in any event, that the trial judge canvassed the issue and it was clear that there was no prospect of resolving the issue of parentage testing through FDR. [page 75]

Property settlement and maintenance 2.33 For financial disputes in the Family Court, the pre-action procedures are set out in the Family Law Rules 2004 (Cth): r 1.05 and Pt 1 Sch 1. The Schedule does not mention FDR and instead refers to dispute resolution processes such as negotiation, conciliation, arbitration and counselling. However, in practice the primary forms of dispute resolution processes, family mediation and negotiation, are used to resolve financial matters before proceedings are issued. According to Sch 1 reg 1(5), the object of pre-action procedures is primarily to encourage resolution of the dispute before filing an application in court, by providing for full and frank disclosure and the exchange of information and documents, and by providing a process to resolve the dispute. As with parenting cases, there are situations where parties are exempted from utilising these procedures: r 1.05(2). 2.34

In addition to the exceptions in r 1.05, the Schedule

reiterates and adds to the circumstances where a court may accept that it was not possible or appropriate to comply with the preaction procedures, such as genuinely intractable disputes. Where none of the exceptions applies, the Rules mandate that the preaction procedure must be embarked upon in two stages. At Stage 1, an intending applicant must give a copy of the pre-action procedures to the other party, make enquiries about dispute resolution services and invite the other party to participate in dispute resolution: Sch 1 reg 3(1). Schedule 1 then goes on to say that prospective parties must cooperate in choosing a dispute resolution service and ‘make a genuine effort to resolve the dispute by participating in dispute resolution’: Sch 1 reg 3(2). If no agreement is reached through dispute resolution, or a party fails to participate in dispute resolution, then at Stage 2 the applicant must give the prospective respondent notice in writing of their intention to commence proceedings: Sch 1 reg 3(4). Among the material that the notice must contain is a genuine offer to resolve issues and the timeframe within which the respondent must reply: Sch 1 reg 3(5). The respondent must reply in writing stating whether the offer is accepted and, if it is not accepted, make a genuine counter-offer and specify a timeframe for the applicant to respond: Sch 1 reg 3(6). If an applicant fails to comply with the pre-action procedure, this can be considered when making further directions or in the making of a costs order: r 1.10(2)(d) and Sch 1 reg 1(3). In Cross & Beaumont,82 the husband sought a costs order against the wife on the basis that she failed to comply with r 1.05 of the Family Law Rules; in other words, she had failed to adhere to the pre-action procedures. In dismissing the husband’s application, Watt J commented: I would have great difficulty in finding that the wife’s refusal to engage in face to face dispute resolution with the husband was unreasonable having seen for

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myself the very significant differences in their levels of assertiveness and the husband’s capacity to express himself aggressively in circumstances where he considered that he was in the right.83

Thus, the Family Court is taking an expansive view of these rules. Pre-action procedures are compulsory in both financial and parenting cases. However, the fact that, subject to specific exceptions, procedures cannot be commenced in parenting cases without a s 60I certificate ensures that nominally at least there is greater compliance with pre-action procedures in parenting cases. At the launch of National Law Week in Sydney in May 2010, the then Attorney-General the Hon Robert McClelland (now a judge of the Family Court of Australia) indicated that the government intended introducing compulsory FDR for property and spousal maintenance cases.84 This proposal has not progressed since this announcement.

When is FDR unsuitable? 2.35 FDR will not be suitable for all separating couples. In Australia, from its inception, FDR has been the subject of substantial criticism as it is suggested that post-separation, women are more economically, socially and psychologically vulnerable than men and may be coerced into accepting unjust and unfair agreements.85 According to Batagol and Brown: … where there is a significant power imbalance between the parties, compulsory mediation may result in an unjust process and outcome, as parties of unequal bargaining power are forced to negotiate, giving the stronger party ample opportunity to pressure the weaker party into capitulation.86

This is especially true in instances where family violence or abuse may be present.87 Further, the compulsory pre-action procedures in relation to children’s matters (see 2.27–2.32) have been widely condemned as there is a high risk that victims of violence and abuse are unable to make free and informed decisions. Moreover, it has been suggested that the forward-looking

[page 77] focus will overshadow the past history of violence and abuse, and put the participants and their children at risk.88 2.36 Where there is a history of family violence, it is generally acknowledged that victims should not be exposed to FDR processes such as family mediation. FDR may be inappropriate in these circumstances for a number of reasons, including: the perpetrator may use FDR as an opportunity for violence and intimidation, as there is an obvious power imbalance; perpetrators of violence are generally not capable of honesty and the desire to settle; it places a heavy burden on the victim of abuse; and, importantly, because FDR is a private and confidential process, there is limited transparency and accountability.89 Of course the most significant difficulty of all is that of identifying violence in the first place. The government has recognised the inappropriateness of victims having contact with perpetrators, as well as the importance of identifying instances of family violence and abuse. In an attempt to avoid FDR processes being used in circumstances where there is a history of family violence or abuse, the Attorney-General’s Department has put in place screening and assessment procedures to assist FDR practitioners in identifying safety issues and to ensure that victims of family violence are not using FDR in inappropriate circumstances. It is also recognised that another key element of FDR practices is to assess the risk of violence and abuse, and identify cases where FDR may be appropriate despite family violence or other risks.90 In such circumstances, FDR may be conducted by telephone or by way of shuttle, where the parties are in separate rooms and the mediator goes back and forth between them. However, it is acknowledged that there are significant difficulties with implementing effective screening and assessment processes to ensure that violence between partners and towards children does not go unnoticed:91 See further, 2.39–2.41.

2.37 Over the period 2006–09, the AIFS undertook an evaluation of the 2006 reforms in order to determine whether these reforms had achieved their aims, one of which was clearly to encourage prospective litigants to resolve their disputes without resorting to litigation. The study found that about two-thirds of parents [page 78] who had separated after 2006 had used FDR services after separating and that these parents were less likely to use lawyers than those who separated prior to 2006.92 Furthermore, about two-fifths of those who had attempted FDR had reached agreements, most of which were still in place at the time of the study,93 thus suggesting some evidence of a culture shift. It also found that there was generally satisfaction with the services, with over 70 per cent of FDR clients saying they were treated fairly and over half indicating that they were provided with the help they needed.94 However, disturbingly the study also indicated that: Family Relationship Centres have also become a first point of contact for a significant number of parents whose capacity to mediate is severely compromised by fear and abuse and there is evidence that FDR is occurring in some of these cases.95

With the change in government in 2007, the Commonwealth Attorney-General expanded the broad evaluation of the impact of legislation being undertaken by the AIFS and authorised further studies. One of these studies, Brown et al, Family Law and Family Violence in Australia: The Experiences and Views of Children and Adults from Families who Separated Post 1995 and Post 2006, 2010,96 was aimed at examining the impact of family violence that had occurred before, during or after parental separation on postseparation decision-making. More specifically, it was aimed at uncovering the perspectives of parents and children on the effect that a history, or the existence, of violence within the relationship has on the decisions that people make about accessing the courts

and dispute resolution services, as well as the decisions they make while they are at court and at dispute resolution services. Respondents in this study reported in graphic detail that when there was a history and or a presence of family violence, it affected their decision-making in a myriad of ways. It impacted on the decisions they made about separating, and about accessing dispute resolution services and courts after separation; it also affected their decisions while they were at dispute resolution services and courts, as well as their post-separation parenting arrangements. The study found that, regrettably, they were pushed to FDR services by their need for protection and by the policies of the legislation, but they encountered many obstacles along their pathways, and many found little satisfaction with the policies and the services of the family law system.97 [page 79] 2.38 Another report, the joint 2010 report of the Australian Law Reform Commission and the New South Wales Law Reform Commission into family violence, recommended that: The Australian Government Attorney-General’s Department should: (a) promote and support high quality screening and risk assessment frameworks and tools for family dispute resolution practitioners; (b) include these tools and frameworks in training and accreditation of family dispute resolution practitioners; (c) include these tools and frameworks in the assessment and evaluation of family dispute resolution services and practitioners; and (d) promote and support collaborative work across sectors to improve standards in the screening and assessment of family violence in family dispute resolution.98

2.39 A number of practice-based developments have been developed with the aim of improving screening for family violence99 and improving how the family law system overall deals with family violence and child abuse concerns (see further, Chapter 3).100 The evaluation report on the 2012 FLA family

violence amendments101 shows an increased emphasis on identifying family violence and safety concerns across the family law system. The Report states, however, that reservations remain among family law system professionals about the capacity of the system to adequately deal with these concerns.102 Findings in the Report relating to the 2012 amendments more generally are discussed in Chapters 3 and 8 of this book. In addition, there are aspects of the Report that are relevant to FDR. In terms of identification of family violence and safety concerns, the authors state that while there is evidence of an increased emphasis on these concerns across the system, particularly among lawyers and courts, ‘refinements in this [page 80] practice area are required and the development of effective screening approaches has some way to go’.103 Of particular concern is the data that parenting matters are taking longer to resolve post-reform than pre-reform. It is unclear whether this is entirely attributable to the reforms or whether resourcing and other issues may be the cause.104 Importantly for the operation of s 60I, the authors of the Report conclude that screening and assessment should be an inherent part of the FDR process within the existing legislative framework.105 2.40 The issues for FDR where there is family violence are well documented, as the preceding paragraphs show. Responses to these concerns include the development of mediation models designed for cases where there is a history of family violence, in processes outside106 and within107 the court system. Notwithstanding these developments, concerns remain that participants in FDR are exposed to risk of harm where there is family violence or child abuse. Sifris and Parker108 recommend that these concerns be addressed through four fundamental

changes to the FDR process: (1) by improving screening processes and by legislatively mandating for consistent, mandatory and reportable screening processes to be undertaken in relation to every family before FDR is undertaken; (2) by amending s 60I(9) to make it unnecessary for the court to be satisfied that there are ‘reasonable’ grounds to believe that family violence of abuse has been perpetrated or that there is a risk of such conduct; (3) by ensuring that information revealed during intake sessions about issues of violence and abuse is not kept confidential and is available to the family law courts; and (4) by inserting a note at the end of s 60(9)(b) reminding the reader of the definitions of family violence and child abuse (as amended in 2010) to draw a connection between these definitions and the exception in s 60(9) (b) to the requirement for a s 60I(7) certificate. 2.41 In addition to unsuitability of FDR where there is a history of violence between the parties, other research points to shortfalls in the effectiveness of FDR to assist some separated parties. In an exploratory qualitative study of the experience of 60 parents who had separated, all resident in Victoria, the participants were interviewed annually over three years (2009, 2010 and 2011) about their parenting and financial arrangements, including the FDR and family law services [page 81] they used in the course of making or changing those arrangements.109 Where both parties were cooperative and able to negotiate, they tended to describe positive experiences and outcomes.110 The strongest criticism from participants who expressed dissatisfaction with the services they received and the post-separation outcomes was directed at the inability of FDR and FDR practitioners to assist them. The study indicates that some separating parents had difficulty accessing the services they

needed at the right time. Participants also experienced difficulties because the focus of FRCs was (and still is) predominantly on parenting issues rather than financial issues, and because of the absence of readily accessible and affordable legal services.111

FDR processes within the court system 2.42 Over the past decade, with more disputes being resolved outside the court system, increasingly the cases coming to the Family Court are made up of complex matters which often involve multiple parenting or financial issues that have higher levels of conflict between the parties. The experience has been that parties in these cases are less likely to arrive at an agreement. Consequently, while only approximately 15 per cent of court matters result in a judgment, this reflects a lower rate of settlement of court matters than pre-2006.112 Efforts to resolve family law disputes and settle claims do not end once a matter is before the court. In addition to the FDR processes operating outside the court system, there are a number of FDR processes operating within the court system. These processes draw on the expertise of family consultants as well as judicial officers.

Family consultants 2.43 The 2006 reforms saw the creation of the ‘family consultant’. Family consultants are psychologists and social workers who specialise in child and family issues following separation and divorce.113 They work within the court system to assist parties to resolve their dispute, and to assist the court in determining the best outcomes for children. Prior to the 2006 amendments, family court counsellors had two functions: to try and resolve disputes between parties, and to write ‘family reports’. A family report sets out all issues relating to the care, welfare or

development of the child, which may be received in evidence: s 62G. [page 82] Communications with counsellors were privileged (see 2.57) at the resolution stage but not at the determination stage, when a counsellor submitted the family report. The counsellor — or as they later became known the Family Court mediator — who conducted the FDR session would not write the family report; that was done by another member of the counselling service. Whereas before the 2006 reforms there were court-based family counsellors as well as family counselling services in the community, now there are only court-based family consultants and their roles are somewhat different: FLA Pt III. Communications with family consultants are no longer confidential at any stage of the court process: see 2.63. In addition to the other functions set out in s 11A, however, it is clear that it remains one of their roles to help ‘people involved in … proceedings to resolve disputes’: s 11A(c). Family consultants also have an advisory role. In instances where the court has the power to order a person to attend counselling, FDR, or a particular course, program or service, the court may seek advice from a family consultant regarding the appropriate course of action: s 11E. If parties are unable to resolve issues, the court may order the family consultant to prepare a family report. The reporting function of the family consultants remains a pivotal role as this is one of the mechanisms through which the views of the child are made known to the court. The court does not always follow the recommendations of the family consultant,114 but should provide adequate reasons for departing from or ignoring their recommendations.115 In a bid to ensure that the reporting function of family

consultants is uniform and of a consistent and high standard across Australia, the Family Court of Australia, Family Court of Western Australia and Federal Circuit Court of Australia on 11 February 2015 launched the Australian Standards of Practice for Family Assessments and Reporting.116 2.44 The family consultant role is to ensure that the court and the parties are assisted throughout the litigation process by experienced professionals from the behavioural sciences. The functions of the family consultant, set out in s 11A, highlight the goal of non-judicial dispute resolution (including the court taking advice from the family consultant on how best to achieve this), as well as ensuring the court is provided with independent evidence in relation to parenting disputes. In addition to taking advice from, and receiving the evidence of, family consultants, the court may order one or both parties and their children to attend [page 83] a meeting, or series of meetings, with a family consultant. When meeting with the family consultant, the parties and/or their children are not entitled to legal representation:117 see 8.92. In carrying out the orders of the court, a family consultant may interview children, advise the court of the children’s views and assist the court to work towards a child-focused resolution: s 11F. If a person fails to comply with an order that he or she arrange for a child to attend a meeting with a family consultant, or if a child fails to attend a meeting with a family consultant, the consultant must report the failure to the court and the court may make any orders that it considers appropriate: s 11G(1A). Following the making of interim or final parenting orders, family consultants may also be required to supervise compliance with orders: s 65L. For example, in Harridge v Harridge,118 Murphy J

ordered the family consultant to oversee arrangements for the father to see his children under the supervision of their paternal grandparents. However, it would seem that due to resource constraints, supervisory orders of this sort are not common. Nonetheless, and as one would expect, family consultants are playing a pivotal role in trying to ensure that matters that have come to court are resolved without a judicial determination where possible, and where that is not possible, that the interests of children are protected. 2.45 Family consultants have the same immunity as judges when performing their functions: s 11D. Unlike FDR and family counselling, if a person has been informed that communications with, or in front of, a family consultant (or a professional to whom the person has been referred by the family consultant) are admissible, such communications will be admissible in proceedings under the FLA: s 11C(1) and (2).119 Such communications are thus not privileged. However, in circumstances involving admissions by an adult that indicate a child has been abused or is at risk of abuse, or a disclosure by a child that indicates that they have been abused or are at risk of abuse, such admissions will be admissible even though the person has not been informed that such communications are admissible: s 11C(3). 2.46 In Hazan & Elias,120 the father sought an order that the family consultant be removed, and that her two reports be excluded from evidence and a new report be ordered. In support of this application, he sought to have an audio recording, which he had secretly made of the interview with the family consultant, admitted [page 84] into evidence. Watts J excluded this recording. After noting that

there is nothing in the wording of s 11C to indicate that it is subject to any other provision in the FLA or any other Act, he disagreed with the father’s argument that, given the clear wording of s 11C, this section ousted s 138 of the Evidence Act 1995 (Cth) which favours the exclusion of evidence that is illegally or improperly obtained. His Honour referred to the ‘golden rule’ of statutory construction that ‘the grammatical and ordinary sense of the words is to be adhered to unless that would lead to … absurdity … or inconsistency with the rest of the [statute]’. His Honour found the ordinary meaning of s 11C when read in the context of the rest of the statute to be unreasonable. Accordingly, he read s 11C of the FLA down so that the section is subject to the provisions of the Evidence Act.

Conciliation and case assessment conferences 2.47 Conciliation is a process in which the participants, with the assistance of the conciliator, identify the issues in dispute, develop options, consider alternatives and endeavour to reach an agreement. Family Court of Australia conciliations are conducted by registrars, who will provide advice on the matters in dispute and/or options for resolution, but will not make a determination. Conciliation is now not referred to directly in the scheme of dispute resolution set up under the FLA,121 though parties can always engage in some form of private conciliation to resolve their dispute. Like other courts, the Family Courts have for many years provided mandatory pre-trial processes aimed at encouraging parties to settle by agreement without proceeding all the way to trial. Before a matter reaches trial, the parties may be required to participate in a number of these processes, which are presided over by court officers and at which consent orders can be made if agreement is reached. At the very outset of a matter in the Family Court, other than in cases relating to parenting matters only, after filing an application — unless there are urgent interim matters to be determined — a

case will be listed for a ‘case assessment conference’, one of the goals of which is an early opportunity to reach an agreement with the assistance of a registrar: Family Law Rules 2004 (Cth) r 12.03. Parties must exchange financial information prior to the conference. If the matter is not resolved, then orders will be made for the future conduct of the matter: r 12.03(4). If the proceedings involve parenting issues that are not settled at the end of the conference, the parties may be ordered to attend a Child Responsive Program: r 12.03(5). The parties may also be sent to a further [page 85] dispute resolution process (such as FDR) at this point, or indeed at any point of the proceedings: see s 13C. 2.48 In financial matters, as the case progresses towards trial there is at least one more requirement to encourage parties to resolve the matter. Parties will, almost invariably, be required to attend a ‘conciliation conference’: s 79(9).122 In the Family Court, such a conference is compulsory unless the court is satisfied that there are special circumstances, an order needs to be made urgently, or it is not practicable to require the parties to attend such a conference: s 79(9)(b) and (c). The parties and their lawyers must attend the conference. Generally, the conference will be conducted with all the parties and their lawyers present; however, if there are safety issues, the parties may be situated in separate rooms. There are also facilities for the conference to be conducted through video-link or teleconference. There are strict requirements about the duty to file the relevant financial documentation, the time period in which it must be filed, and generally the exchange of financial information prior to the conference: rr 12.05 and 12.06. The conference must be conducted by a registrar or deputy

registrar of the Family Court who attempts to guide parties towards settlement by exploring options. The registrar cannot provide legal advice, but they can discuss legal principles. Frequently, the registrar will provide an opinion as to the likely range of orders if the matter proceeds to a hearing. The disadvantage of such conferences is that generally, quite some time and money have already been expended by the parties by the time they get there. The advantages of the conciliation conference are that all the relevant information is available, there is a registrar present and able to help focus the parties on the likely outcome of the case, and the proceedings are confidential: s 131(1) of the Evidence Act 1995 (Cth). Thus, there is a very real prospect of matters settling at this stage. If agreement is not reached on all matters, the registrar will conduct a procedural hearing and make procedural orders regarding the further conduct of the case. 2.49 Conciliation conferences are primarily geared towards resolving financial issues. Parenting matters will only be considered at a conciliation conference where there are also financial matters in dispute. If the parties consent to the resolution of children’s issues, the registrar will only make orders in relation to these after taking into account the child welfare provisions. If the dispute is only about parenting, then the court may, but does not have to, send the parties to counselling or FDR prior to trial: s 13C. One factor that may be relevant in this decision is the type of s 60I certificate provided, but the nature of the case will also influence whether this is ordered. [page 86] 2.50 Within the Family Court system, additional FDR processes have been introduced. Parties are encouraged to participate in

mediation-style conferences conducted by private practitioners, with programs running in Melbourne, Brisbane, Sydney and Perth. In addition, in children’s matters the ‘less adversarial trial’ processes (LAT) (see 8.69–8.71) and the Magellan program (see 3.54) are fully operational.

Obligations on advisers 2.51 The FLA creates obligations on ‘advisers’ in parenting matters to provide people with specific information. Advisers are defined as legal practitioners, family counsellors, FDR practitioners and family consultants: ss 60D(2) and 63DA(5). Advisers are obliged to alert clients that if they resolve their issues, they may enter into a parenting plan: see 8.40. A detailed explanation should also be provided of what ought to be included in a parenting plan, the effect of such a plan on an existing or future parenting order, and the programs that are available should the parties have difficulties complying with the plan: s 63DA(2). Advisers are also obliged to inform their clients that if it is reasonably practicable and in the child’s best interests, they should consider the child spending equal time with each parent. If not, then if it is reasonably practicable and in the child’s best interests, they should consider the child spending substantial and significant time with each parent: s 63DA(2) and see 8.40. These obligations emphasise the dual aims of the legislation to promote shared post-separation parenting and to encourage parties to settle their disputes without resorting to litigation. 2.52 The Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) introduced a new Subdiv BB into the FLA — Best interests of the child: Adviser’s obligations. The aims of these amendments are to ‘strengthen advisers’’ obligations by requiring ‘family consultants, family counsellors, family dispute resolution practitioners and legal practitioners to

prioritise the safety of children’.123 These amendments reflect the need to prioritise the safety of children over all other considerations, including the need to establish a meaningful relationship with both parents.124 Studies had also indicated that there was a sense of disbelief regarding violence and, even when believed, clients [page 87] were advised not to disclose violence for fear of the repercussions on the outcome of parenting arrangements and, in the event of false allegations, cost penalties.125 The 2011 legislation has clarified and strengthened the obligations of advisers to ensure that the safety of children is the first priority. According to the amended section, when an adviser provides advice or assistance in relation to parental responsibility, they must advise the client that they should regard the interests of the child as the paramount consideration. Advisers are also obliged to advise the client of the primary considerations contained in s 60CC(2), with a direction that priority must be given to protecting a child from harm and abuse: s 60D. These amendments accord with the shift in emphasis from establishing meaningful relationships to protecting children from harm. This obligation is reinforced in s 63DA, which details specifically the duties of advisers, and commences with the direction that the obligation of advisers under s 63DA are ‘in addition’ to those contained in s 60D: s 63DA(1A). Since the coming into operation of the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth), the obligations contained in s 63DA(2) are thus tempered with the overarching consideration of protecting children from harm and abuse.

Family counselling in respect of children 2.53 One of the innovations introduced by the FLA, and one which more than any other may be thought to justify the epithet of the ‘helping court’, was the introduction of welfare and counselling officers attached to the court, the aim of which was to help smooth out some of the animosities and conflicts that are so often evident in situations of family breakdown. Nowhere is this approach more justified than where children are involved. The Act seeks to ensure the availability of counselling for those who seek it (irrespective of whether proceedings have been instituted), as well as requiring in some circumstances that parties attend counselling where there are proceedings before the court in relation to the care, welfare or development of a child. 2.54 Prior to 2006, the provisions dealing with counselling (both within, and outside, the court) in respect of children were dealt with in Div 3 of Pt VII. However, the 2006 reforms had the effect of re-badging those Family Court counsellors working within the court as ‘family consultants’ and giving them a different role: see 2.43. Thus, ‘family counselling’ under the new law is primarily the province of what the FLA refers to as ‘non-court based’ counsellors. The provisions governing family counselling are now found in Pt II of the FLA. Family counselling may be accessed through FRCs as well as other individuals and organisations. [page 88] ‘Family counselling’ is ‘a process in which a family counsellor helps people to deal with personal or interpersonal issues relating to marriage, separation or divorce, including issues relating to the care of children’.126 General information is provided about the roles and responsibilities of family counsellors, and others involved in the provision of services to families, in Family

Counsellors in the Family Law System, a paper prepared by the Family Law Section of the Federal Attorney-General’s Department.127 Part II Div 2 of the FLA specifically deals with family counselling. ‘Family counselling’ is defined in s 10B as a process by which ‘family counsellors’ (defined in s 10C) help people deal with the ‘personal and interpersonal’ issues surrounding marriage, separation and divorce, including issues that relate to the care of children. People can access non-court based family counsellors voluntarily. Under s 13C, the court can also order one or more parties to attend counselling in relation to child matters. Further, under s 65F(2)(a), except in certain circumstances, a court must not make a parenting order unless the parties have attended counselling: see 2.54. There is a range of non-court based services that can provide counselling to parties. To understand the role this process plays in resolving disputes out of court, one needs to consider Pt IIIB, which sets out the court’s powers in relation to these (and court-based) services. The objects of Pt IIIB include facilitating access to family counselling (s 13A(1)(a)) and giving the court the power to require parties to make use of court or non-court based services (s 13A(1)(d)). 2.55 In keeping with the intention of promoting reconciliation (see 2.2), s 13B requires courts hearing divorce, parenting or property proceedings to consider the possibility of reconciliation and permits the court to adjourn proceedings if it considers reconciliation is a reasonable possibility. If a court takes that step, it must advise the parties to attend family counselling. Under s 13C, at any stage in any proceedings under the Act, the court may order the parties to attend family counselling; further, it may suggest the purpose of the counselling and order the parties to encourage relevant third parties to attend counselling. Adjournments based on the possibility of reconciliation are no doubt uncommon, but it is common for the court to require parties to attend family counselling. While that counselling is

more therapeutic than focused on resolution of a particular dispute, [page 89] it is obviously the case that resolving underlying conflicts and tensions between the parties increases the chances of the parties reaching some sort of agreement. 2.56 The court is precluded from making a final order in contested proceedings for a parenting order in relation to a child, unless the parties to the proceedings have attended counselling to discuss the matter to which the proceedings relate: s 65F(2). The only exceptions to this requirement are those expressly stated in the legislation, namely where the court is satisfied that there is an urgent need for the parenting order, or there is some other special circumstance (such as family violence) that makes it appropriate to make the order even though the parties to the proceedings have not attended a conference as required (s 65F(2)(b)), or where the court is satisfied that it is not practicable to require the parties to the proceedings to attend a conference: s 65F(2)(c). Section 65F substantially re-enacts the former s 64(1B), which itself was the product of an amendment introduced into the Act in 1983. The object of this amendment was to underscore the importance of this particular form of non-judicial dispute resolution and to ensure that where possible, parties have the benefit of counselling to assist in resolving their differences, in the hope that a litigated outcome would become unnecessary. This focus on non-judicial resolution of disputes is reinforced by the pre-action procedures (see 2.25–2.26) and out–of-court dispute resolution processes. It should be remembered, though, that the broad aims of counselling are wider than simply resolving a particular dispute, as seen by the definition in s 10B.

Confidentiality and admissibility of communications in family counselling and FDR 2.57 Confidentiality is well accepted as an important feature of counselling and mediation. There are a number of reasons for the asserted centrality of confidentiality, including the greater likelihood that parties will be willing to participate in the process if they know that they can speak openly in the process. With respect to family counselling, Carmody J observed: The assurance of confidentiality improves the chances of reconciliation or conciliation. Without it parties are likely to be reluctant to participate fully and frankly in the process. For this reason counsellors are sworn to secrecy and as a ground rule what is said in counselling is without prejudice and legally immune from disclosure elsewhere.128

There may also be a greater willingness of professionals to offer counselling and conduct mediations in private if they know that they cannot be required to [page 90] disclose what was said during the process.129 Notwithstanding acceptance of the importance of confidentiality to both processes, and to family counselling and mediation, as Astor and Chinkin130 explain, there is a dilemma. One the one hand, confidentiality is perceived as essential to the integrity and effectiveness of the process. On the other hand, absolute confidentiality is sometimes unrealistic and even undesirable.131 In counselling and FDR, it is unrealistic to expect that parties will not sometimes discuss with family and friends what happened and what was said during the process. The confidentiality requirement in FDR is directed, essentially, at ensuring that settlement offers and admissions made by the parties are not disclosed by the counsellor or mediator and are not admissible as evidence in subsequent family law proceedings between the parties, rather than protecting

professionals.132 In this way, the ‘almost blanket protection provided by Part II of the Act’ confers significant protection on the parties in the style of the common law ‘without prejudice’ privilege’.133 2.58 ‘Confidentiality’ is sometimes used generally to refer both to the non-disclosure requirements in the Act and the rules of ‘admissibility’ that are based on the common law privilege attached to communications made in confidential processes.134 In FDR, it is the FLA or s 131 of the Evidence Act 1995 (Cth) that limits the admissibility in Family Court proceedings of evidence of what was said in counselling and FDR. Confusion can result from the use of the words ‘confidentiality’, ‘privilege’ and ‘admissibilty’ because they are often used interchangeably.135 ‘Confidentiality’ in the counselling and dispute resolution context refers to the obligation on parties, counsellors and FDR practitioners not to disclose to any third party (including in court proceedings) information given in confidence. Privilege and admissibility rules operate to exclude evidence of confidential communications in court proceedings. The rules of both confidentiality and admissibility involve efforts to balance the competing interests of supporting the integrity of the process and to ensure that a court has the benefit of all available evidence. A successful claim of privilege renders evidence of what was said or documents exchanged inadmissible in court. The law of privilege, therefore, has narrower application than the law of confidentiality. In Part II [page 91] of the Act, ‘admissibility’ is the word used to prescribe what communications are inadmissible as evidence. 2.59 The provisions regulating the confidentiality and admissibility of communications made during family counselling (ss 10D and 10E) and FDR are contained in Part II Div 2 of the Act:

ss 10H and 10J. These provisions are almost identical. Under ss 10D and 10H, communications made in counselling or FDR may not be disclosed by the counsellor or FDR practitioner except as permitted by those sections. Two key issues arise in relation to confidentiality of communications within counselling and FDR: disclosure and admissibility. Plainly, if something cannot be disclosed, then it will be inadmissible in court. However, a counsellor or an FDR practitioner may be able to disclose a communication, and yet it may not be admissible in court. So, the general starting point is that communications are confidential. The exceptions to this privilege are where: disclosure is required under some other law (then disclosure is mandatory) (ss 10D(2) and 10H(2)); consent is given by the person making the disclosure (ss 10D(3) and 10H(3)); or the disclosure is made to protect a child or person from harm: ss 10D(4) and 10H(4). The latter two exceptions are permissive, in that the FDR practitioner may disclose, but is under no legal obligation to do so. 2.60 The decision of Unitingcare — Unifam Counselling and Mediation v Harkiss136 dealt with disclosure of communications during counselling. Coleman J set aside the order of Altobelli FM directing Unifam to comply with a subpoena, which sought production of ‘all records including any reports or allegations, counselling notes, referrals, and file notes’. UP According to Coleman J, ‘may’ (disclose upon consent) in s 10D(3) does not mean ‘must’. The fact that the parties had consented to Unifam disclosing the information (s 10D(3)(a)) meant that s 10D(3) was potentially enlivened, but did not in itself mean that Unifam had no discretion whether or not to disclose. If the documents subpoenaed contained an admission by an adult that a child under 18 had been abused or was at risk of abuse, or a disclosure by a child under 18 indicating that a child had been abused or was at risk of abuse (s 10E(2)), the court could compel production of the documents. However, such documents would not necessarily

have been admissible having regard to the concluding words of s 10E(2): ‘unless in the opinion of the court, there is sufficient evidence of the admission or disclosure available to the court from other sources’. In French v Winter,137 Demack FM, referring to and following Coleman J’s decision in Unitingcare — Unifam Counselling and Mediation v Harkiss, decided that given the objection of the FDR practitioner to disclosing communications made during FDR, the material remained confidential and the FDR practitioner was not obliged to produce the material pursuant to a subpoena. [page 92] In Trapp v Vonne,138 the parties had previously attended a ‘family counsellor’ (for the purposes of s 10C of the Act) called LifeWorks Australia (LifeWorks) for ‘family counselling’ (within the meaning of s 10D of the Act). In subsequent parenting proceedings before the Federal Magistrates Court (now the Federal Circuit Court), the wife applied for a subpoena to issue to LifeWorks, a ‘family counsellor’. The wife unsuccessfully argued that material referred to in the subpoena could be disclosed to the court pursuant to ss 10D and 10E of the Act, in so far as it contained admissions by the husband with respect to allegations of abuse and violence. LifeWorks opposed the issue of the subpoena. Riethmuller FM was not satisfied on the facts that that there was an issue relating to ‘abuse’ or ‘risk of abuse’ of one of the children as contemplated by s 10E(2) and ordered the subpoena struck out. The wife was ordered to pay LifeWorks’ costs.139 Degraves v Searle140 illustrates the difference between the confidentiality and admissibility provisions. In this case, the parties to parenting proceedings had been ordered to attend a post-separation parenting program. Harman J was satisfied this program, offered by Unifam, came within the definition of ‘family counselling’ in s 10B.141 An incident occurred which led the counsellor to terminate the parties’ participation in the program.

Subsequently, a family counsellor with Unifam telephoned the wife and informed her that the husband had made certain threats against the wife in a separate session. The wife recited this communication in an affidavit in support of parenting orders which restrained the husband from having contact with the wife and their children. Although the fact of the telephone call was admissible, the issue was whether the paragraphs in the affidavit quoting the counsellor were admissible. Harman J ruled that they were not. His Honour was not satisfied that a risk of abuse to the children could be made out so as to bring the affidavit evidence within the exception to inadmissibility in s 10E(2). Section 10E(2) (a) may be satisfied if a clear threat is made by one parent in circumstances that fall within the definition of ‘child abuse’ as defined in s 4(1). The relevant paragraphs of the affidavit were struck out. His Honour made it clear that he made no finding that there had been any wrongdoing on the part of any employee of Unifam. In other words, the disclosure was lawful even though the information disclosed was not admissible evidence. 2.61 As Unitingcare and Degraves v Searle show, when a communication may, or must, be disclosed under s 10D or s 10H, this does not necessarily render it admissible in court: ss 10D(6) and 10H(7). Sections 10E and 10J go on to say that communications in counselling and FDR are not admissible, except as provided for [page 93] in ss 10E(2) and 10J(2).142 Thus, only admissions by adults or children indicating that a child has been abused, or is at risk of abuse, are admissible, and only then if the court is satisfied that there is not sufficient evidence available from other sources of the admission or disclosure. The definition of abuse is found in s 4(1) of the Act. With the coming into operation of the Family Law

Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth), ‘abuse’ includes not only assault, sexual assault and a child being used as a sexual object; it also includes serious psychological harm and serious neglect of a child: see 3.3. Arguably, this expanded definition of ‘abuse’ will extend the circumstances in which a court can be satisfied under s 10E(2)(b) or s 10 J(2)(b) that statements made during counselling or FDR of the nature sought to be admitted in Unitingcare would be admissible as an exception to the exclusionary rule as ‘an admission by an adult that indicates that a child under 18 has been abused or is at risk of abuse’.143 The discretionary exceptions in relation to harm (ss 10D(4) and 10H(4)) include, among other things, any disclosure the counsellor or FDR practitioner reasonably believes is necessary to: protect a child from risk of harm (whether physical or psychological); prevent or lessen a serious and imminent threat to the life, health or property of a person, or reporting the commission or preventing the likely commission of an offence involving violence or a threat of violence to a person or the intentional damage or threat of damage to the property of a person; or assist an independent children’s lawyer to properly represent the interests of the child. The 2010 joint report of the Australian Law Reform Commission and the New South Wales Law Reform Commission recommended the removal of the ‘imminent’ requirement, as family violence may manifest over a number of years and thus may be difficult to characterise as ‘imminent’.144 To date, this recommendation has not been acted upon. Other cases reveal difficulties that arise from the strict application of the confidentiality and inadmissibility provisions.145 The effect of these provisions is that often what is

said in counselling and FRD processes — including information about [page 94] family violence and abuse — that would be of potential value to decision-makers in the Family Courts is not disclosable or willingly disclosed; and even if it is, it may still be unavailable as evidence to decision-makers in subsequent family law proceedings. In Roux v Herman,146 Riethmuller FM was required to rule in a parenting case on the issue of admissibility of a document, contained within an envelope that remained unopened pending a determination the issue. The case before the court concerned an issue as to which high school the parties’ child should attend. The parties had attended FDR. The mother sought to tender a parenting agreement said to have been made during the course of that process as evidence relevant to the parenting issue. The father objected, relying on s 10J. His Honour concluded that a parenting plan entered into during the course of, or at the end of, a FDR process147 is prima facie admissible into evidence for the purposes of having regard to it under s 65DAB, and was not inadmissible within the terms of s 10J. In this case, the father argued that that he only entered into the agreement under duress. Section 63C(1A) specifically provides that an agreement ‘is not a parenting plan for the purpose of this Act unless it is made free from any threat, duress or coercion’. Riethmuller FM concluded that the effect of s 10J, which renders evidence of anything said by or in the company of an FDR practitioner inadmissible, was to prevent the husband leading evidence to substantiate his claim of duress. In the absence of that evidence, his Honour considered himself unable to conclude that the document the wife sought to admit was a parenting plan, and therefore it was inadmissible.148 2.62

In a number of cases the court has been required to

determine the scope of the protective provisions of Part II. How far does the counselling or FDR ‘process’ extend and at what point does the ‘cone of silence’149 in the Act descend?150 In Smirnov v Turova,151 Walters FM held that ‘attachment therapy’ sessions were not family counselling for the purposes of ss 10D and 10E of the Act. Having regard to: … the very serious consequences that flow from the characterisation of a process as ‘family counselling’ — which consequences obviously include the possibility of evidence which is highly relevant to the safety or best interests of a child being excluded from consideration in legal proceedings where the

[page 95] court is legislatively compelled to regard the best interests of the child as the paramount consideration (and, in doing so, is also legislatively compelled to consider, among other things, the need to protect the child from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence) — it seems to me that the applicability of provisions such as ss 10D and 10E should be clearly and affirmatively demonstrated.152

His Honour was not persuaded that the provision had been demonstrated to apply in the present case. In Rastall v Ball,153 Riethmuller FM was required to determine whether evidence of what occurred in an intake session was inadmissible under ss 10H and 10J. The essential inquiry was whether the FLA and Regulations required a two-stage process, in which case it might successfully be argued that the statutory protections apply to an intake session as well as any FDR sessions that follow the intake assessment. His Honour did not accept this argument and concluded that the Act does not apply to the intake process. This means that parties and an FDR practitioner can be subpoenaed to give evidence of what was communicated during an intake session. In Harricks v Harricks,154 Harman J held that a report prepared by a child psychologist and addressed to a mediator was not excluded under s 10J, as it was not evidence of anything said or admissions made to or in the presence of an FDR

practitioner. In Roux v Harman,155 Riethmuller FM held that a parenting plan, entered into as a result of FDR, was admissible as it was not excluded by the operation of s 10J. 2.63 Prior to the 2006 reforms, communications between parties and Family Court mediators were confidential and inadmissible in subsequent proceedings: s 19N. The confidentiality requirement was removed by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) and family consultants can give sworn evidence if a matter proceeds to trial. This means that parties engaged in out-of-court FDR know that what they say in that setting is, on the whole, inadmissible in subsequent court proceedings; but that if they proceed to court, then anything said during a case assessment conference conducted by a family consultant can be submitted as evidence. 2.64 There have been numerous calls for the disclosure and admissibility provisions in the FLA to be reviewed and amended. Changes are urged to ss 10D and 10E to strengthen the mandatory disclosure requirements.156 Section 10J [page 96] is said to create problems because it operates to exclude important evidence.157 In particular, that section is said to undermine the efficacy of any FDR process158 and hamper the efforts of courts and FDR professionals to protect vulnerable parties in the family law system.159 The most pressing concerns relate to protection of family members and children from family violence and abuse.160 Other reform proposals include the amendment of the definition of FDR in s 10F of the Act and reg 25 to expressly include assessment or ‘intake’ as part of the FDR process in order to overcome the exclusion of these protective provisions, as held in Rastall v Ball.161 This would mean that FDR, and attendant

protection of disclosures, would commence from first contact with an FDR practitioner.162 2.65 The need for the law to protect the confidentiality of communications within counselling and FDR processes through the operation of the provisions in Pt II is often stated and rarely challenged. Confidentiality of private, consensual family counselling and dispute resolution is considered to be essential to the appeal and the effectiveness of these processes. At the same time, there is a dearth of empirical research to support the strongly and long-held view these protections are essential to the integrity of family mediation. This has recently been pointed out by the Chief Justice of the Family Court, the Honourable Diana Bryant, and a judge of the Federal Circuit Court, Tom Altobelli, in a book chapter published by the AIFS.163 They express their concern that the confidentiality provisions in Pt II of the Act operate as a barrier to sharing critically important information about families with other people. They refer to a survey, conducted by the court in 2012, in which the family consultants surveyed reported that the parents they worked with in court showed a high level of indifference to issues of confidentiality. All 94 family consultants in Australia were invited to participate in the survey. A total [page 97] of 49 replied to the questionnaire nationally.164 In summary, ‘the vast majority of respondents (94%) reported that parents either never or rarely express concerns about the lack of confidentiality of s 11F conferences’.165 The authors report that it was made clear in advance to participants in the s 11F conferences that the process is not confidential.166 In the light of the survey results and in a bid to ensure that evidence that could assist the court to assess the risk of and make related decisions about family violence and abuse is not excluded, Chief Justice Bryant and Justice Altobelli

call for a reconsideration of the principle of confidentiality of FDR processes. At the very least, they call for more research into confidentiality in consensual FDR processes.167 Interestingly, in its 2011 report Maintaining and Enhancing the Efficacy of ADR Processes, from Principles to Practice through People,168 NADRAC (see 2.9) recommended that legislation be enacted providing for a general rule of inadmissibility of ADR communications; subject, however, to leave being granted by a court to permit disclosure if it is in the ‘public interest’.169 NADRAC thus recommended a discretionary, rather than a rulebased approach. It also recommended that ADR practitioners not be compellable to give evidence of communications during ADR processes.170 1.

H Finlay, ‘Towards Non-adversary Proceedings in Family Law’ (1983) 10 Sydney Law Review 61 at 68–72.

2.

L Young, ‘Australia: Reflections on the Shared Parenting Experience’ in B Aitkin (ed), International Survey of Family Law 2012 Edition, Jordan Publishing, Bristol, 2012, p 20. M King et al, Non-Adversarial Justice, 2nd ed, Federation Press, Sydney, 2014, p 136.

3. 4. 5.

Family Court of Australia, Annual Report 2005–06, p 43. Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2005, House of Representatives, 2008, p 1.

6. 7.

M King et al, Non-Adversarial Justice, 2nd ed, Federation Press, Sydney, 2014, Ch 8. H Astor and C Chinkin, Dispute Resolution in Australia, 2nd ed, LexisNexis Butterworths, Sydney, 2002, p 337.

8.

Information about FDR in Australia is available at www.familyrelationships.gov.au/Services/FamilyLawServices/FDR/Pages/default.aspx (accessed 11 February 2016). Australian Government, A New Family Law System: Government Response to Every Picture Tells a Story, June 2005, p 1.

9. 10. 11. 12. 13. 14.

Information about FRCs is available at www.familyrelationships.gov.au/Services/FRC/Pages/default.aspx (accessed 11 February 2016). P Parkinson, Family Law and the Indissolubility of Parenthood, Cambridge University Press, USA, 2011, pp 187–96. See www.familyrelationships.gov.au/Services/FRC/Pages/default.aspx (accessed 11 February 2016). See www.familyrelationships.gov.au/Services/FRC/Pages/MoreFRCInformation1.aspx (accessed 10 February 2016). R Kaspiew et al, Evaluation of the 2006 Family Law Reforms, AIFS and the Australian

15.

16. 17. 18.

19. 20. 21.

22.

23. 24.

25. 26.

Government, Commonwealth of Australia, 2009, pp 304–5. The trend away from courts as the ‘main pathway’ for making parenting arrangements towards FDR providers and lawyers since the enactment of the 2006 family law reforms is supported by the evidence from the following report: R Kaspiew et al, Evaluation of the 2012 Family Violence Amendments Synthesis Report, October 2015, pp x, 21. R Kaspiew et al, Evaluation of the 2006 Family Law Reforms, AIFS and the Australian Government, Commonwealth of Australia, 2009, p 50. Subsequent research confirms this trend in court filings and reveals that for the period 2004–05 through to the end of the 2012–13 financial year, filings for final orders with respect to children only, children plus property and property only applications declined by 14 per cent: see R Kaspiew et al, Family Law Court Filings 2004–05 to 2012–13, AIFS and the Australian Government, Commonwealth of Australia, 2015, p 4. R Kaspiew et al, Evaluation of the 2006 Family Law Reforms, AIFS and the Australian Government, Commonwealth of Australia, 2009, p 61. L Moloney et al, ‘Evaluating the Work of Australia’s Family Relationship Centres: Evidence from the First 5 Years’ (2013) 51 Family Court Review 234 at 236–7. Commonwealth Government, Operational Framework for Family Relationship Centres, Department of Families Housing, Community Services and Indigenous Affairs, revised August 2011, available at www.fahcsia.gov.au (accessed 12 April 2016). T Altobelli, ‘A Generational Change in Family Dispute Resolution in Australia’ (2006) 17 Australian Dispute Resolution Journal 140 at 144. See www.ag.gov.au/LegalSystem/AlternateDisputeResolution/Pages/NADRACPublications-A-Z.aspx (accessed 25 February 2016). NADRAC, Maintaining and Enhancing the Integrity of ADR Processes: From Principles to Practice Through People, Commonwealth of Australia, Attorney-General’s Department, February 2011. NADRAC, Your Guide to Dispute Resolution, Commonwealth of Australia, AttorneyGeneral’s Department, 2012, www.ag.gov.au/LegalSystem/AlternateDisputeResolution/Documents/NADRAC%20Publications/your-guide-to-dispute-resolution.pdf (accessed 17 February 2016). See www.msb.org.au/mediator-standards/national-mediator-accreditation-system-nmas (accessed 17 February 2016). Details of the requirements to be satisfied for accredited as an FDR practitioner are available at www.ag.gov.au/FamiliesAndMarriage/Families/FamilyDisputeResolution/Pages/Foraccreditedfamilydisputeresolutionpractitioners.aspx (accessed 17 February 2016). For a discussion of intake, see L Kolchanski, ‘Family Dispute Resolution — The Importance of Intake’ (2011) 1 Family Law Review 164. Commonwealth of Australia, Attorney-General’s Department, July 2008, www.ag.gov.au/FamiliesAndMarriage/Families/FamilyDisputeResolution/Documents/Fact%20Sheet%20Screening%20and%20Assessment%20Framework.pdf (accessed 26 February 2016). See also the FDR Screening and Assessment Fact Sheet published by the Commonwealth of Australia, Attorney-General’s Department, September 2012, www.ag.gov.au/FamiliesAndMarriage/Families/FamilyDisputeResolution/Documents/Fact%20sheet%20Screening%20and%20Assessment.pdf (accessed 26 February

2016). 27. 28.

L Fisher and M Brandon, Mediating with Families, 3rd ed, Thomson Reuters, Riverwood, 2012, p 25. For an overview of the Australian family law dispute resolution system, see D Cooper and M Brandon, ‘Navigating Complexities of the Family Law Dispute Resolution System in Parenting Cases’ (2009) 23 Australian Journal of Family Law 30.

29. 30.

Family Law Rules Sch 1, Pt 1, item 1(1)(a). R Fells, Effective Negotiation: From Research to Results, Cambridge University Press, Port Melbourne, 2012, p 3. Fells explains that an agreement might be only an agreement to walk away and that the parties might agree to an outcome, ‘but only reluctantly’: p 4.

31.

NADRAC, Your Guide to Dispute Resolution, Commonwealth of Australia, AttorneyGeneral’s Department, 2012, www.ag.gov.au/LegalSystem/AlternateDisputeResolution/Documents/NADRAC%20Publications/your-guide-to-dispute-resolution.pdf (accessed 17 February 2016), pp 11–12. See, for example, K Funder, ‘Motherhood, Fatherhood: The Legal Balance’ (1991) 30 Family Matters 34. More recently, research also shows that most parents resolve their parenting arrangements without formal assistance, and diminishing minorities use each increasingly formal pathway of counselling/mediation/FDR, lawyers and courts. These pathways are more likely to be used by parents affected by family violence. The patterns are reported to show very little change between the pre- and post-2006 family law reforms introduced by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth): R Kaspiew et al, Evaluation of the 2012 Family Violence Amendments Synthesis Report, October 2015, p 23.

32.

33. 34.

M King et al, Non-Adversarial Justice, 2nd ed, Federation Press, Sydney, 2014, p 8. B Batagol and T Brown, Bargaining in the Shadow of the Law: The Case of Family Mediation, Themis Press, NSW, 2011, p 5.

35.

NADRAC, Dispute Resolution Terms. Commonwealth of Australia, Attorney-General’s Department, September 2003, www.ag.gov.au/LegalSystem/AlternateDisputeResolution/Documents/NADRAC%20Publications/Dispute%20Resolution%20Terms.PDF (accessed 17 February 2016). D Cooper and M Brandon, ‘Navigating the Complexities of the Family Law Dispute Resolution System in Parenting Cases’ (2009) 23 Australian Journal of Family Law 30 at 39.

36.

37. 38.

Ibid. For discussion of these approaches, see L Fisher and M Brandon, Mediating with Families, 3rd ed, Thomson Reuters, Riverwood, 2012, pp 25–33.

39.

H Astor, ‘Mediator Neutrality: Making Sense of Theory and Practice’ (2007) 16 Social and Legal Studies 221. See also H Astor, ‘Rethinking Neutrality: A Theory to Inform Practice — Part I’ (2000) 11 Australian Dispute Resolution Journal 73; H Astor, ‘Rethinking Neutrality: A Theory to Inform Practice — Part II’ (2000) 11 Australian Dispute Resolution Journal 145; R Field, ‘Rethinking Mediation Ethics: A Contextual Method to Support Party Self-Determination’ (2011) 22 Australian Dispute Resolution

40. 41.

42.

43. 44.

45.

46.

47.

Journal 8; S Douglas, ‘Constructions of Neutrality in Mediation’ (2012) 23 Australian Dispute Resolution Journal 80. H Rhoades, H Astor and A Sanson, ‘A Study of Inter-professional Relationships in a Changing Family Law System’ (2009) 23 Australian Journal of Family Law 10 at 19. D Cooper and M Brandon, ‘Navigating the Complexities of the Family Law Dispute Resolution System in Parenting Cases’ (2009) 23 Australian Journal of Family Law 30 at 42. Article 12, United Nations Convention on the Rights of the Child, opened for signature 20 November 1989, UN Doc A/44/49 (1989) (entered into force 2 September 1990). L Moloney and J McIntosh, ‘Child-responsive Practices in Australian Family Law: Past Problems and Future Directions’ (2004) 10 Journal of Family Studies 71. The contents of this table are taken directly from J McIntosh, Child Inclusion as a Principle and as Evidenced-Based Practice: Applications to Family Law Services and Related Sectors, Australian Family Law Clearinghouse, Melbourne, 2007, p 5, available at www.aifs.gov.au (accessed 17 February 2016). For a detailed overview of these procedures, see J McIntosh, Child Inclusion as a Principle and as Evidenced-based Practice Applications to Family Law Services and Related Sectors, Australian Family Law Clearinghouse, Melbourne, 2007, available at www.aifs.gov.au (accessed 17 February 2016). J McIntosh, Y Wells and C Long, ‘Child-focused and Child-inclusive Family Law Dispute Resolution: One Year Findings from a Prospective Study of Outcomes’ (2007) 13 Journal of Family Studies 8. J McIntosh, Y Wells and C Long, Children Beyond Dispute: A Four Year Follow Up Study of Outcomes of Child Focused and Child Inclusive Post-separation Family Dispute Resolution, Commonwealth of Australia, Attorney-General’s Department, April 2009, p 12.

48. 49.

Ibid. T Sourdin, Alternative Dispute Resolution, 4th ed, Thomson Reuters, Riverwood, 2012, pp 105–15.

50.

NADRAC, Glossary of Terms, (September 2003), www.ag.gov.au/LegalSystem/AlternateDisputeResolution/Pages/NADRACPublications-A-Z.aspx (accessed 17 February 2016). A Ardagh, ‘Collaborative Law in Australia: A Case Study of Family Lawyers in the Australian Capital Territory’ (2011) 1 Family Law Review 133 at 134.

51. 52.

53. 54.

For further details regarding collaborative law, see C Counsel, ‘What Is This Thing Called Collaborative Law?’ (2010) 85 Family Matters 77; T Sourdin, Alternative Dispute Resolution, 4th ed, Thomson Reuters, Riverwood, 2012, Ch 4. Family Law Council, Collaborative Practice in Family Law, AGPS, Canberra, December 2006. See New South Wales (www.legalaid.nsw.gov.au/what-we-do/family-law/family-dispute-resolution); Northern Territory (www.ntlac.nt.gov.au/legal_info/familydisputeguide.htm); Queensland (www.legalaid.qld.gov.au/Find-legal-information/Relationships-and-children/Children-and-pa-

55. 56.

57.

58. 59. 60.

61. 62. 63.

64. 65.

66.

renting/Family-dispute-resolution); South Australia (www.lsc.sa.gov.au/cb_pages/pdr.php); Tasmania (www.legalaid.tas.gov.au/need-help/family-dispute-resolution); Victoria (www.legalaid.vic.gov.au/get-legal-services-and-advice/family-dispute-resolution-victoria-legal-aid); Western Australia (www.legalaid.wa.gov.au/LegalAidServices/specialist/familyChildrensServices/Pages/FamilyDisputeResolution.aspx) (all accessed 17 February 2016). See www.legalaidact.org.au (accessed 17 February 2016) under ‘What we do’, ‘Family Dispute Resolution’. For a discussion of the history of this process, see generally, Family Law Council, The Answer from an Oracle: Arbitrating Family Law Property and Financial Matters, Discussion Paper, AGPS, Canberra, May 2007. Arbitration is not permitted as a dispute resolution process in all countries, for reasons that include public policy arguments against privatisation of decisionmaking concerning family disputes and dispute settlement. In Australia, this concern is recognised by limiting the availability of arbitration to financial matters. One common factor in the trend in common law jurisdictions to provide for and encourage arbitration of family law disputes is the pressure on courts to reduce their case loads. For discussion, see W Kennett, ‘It’s Arbitration, But Not As We Know It: Reflections on Family Law Dispute Resolution’ (2016) 30 International Journal of Law, Policy and Family 1. C Kaeser, ‘The Emergence of Arbitration in Family Law in Australia’ (2004) 5 ADR Bulletin at 3–4. See generally, M Bartfeld, ‘Family Law Arbitration’ (2007) 19 Australian Family Lawyer 37. For a discussion of the history of this process, see generally, Family Law Council, The Answer from an Oracle: Arbitrating Family Law Property and Financial Matters, Discussion Paper, AGPS, Canberra, May 2007. Family Law Council, Letter of Advice on Arbitration of Family Law Property and Financial Matters, AGPS, Canberra, 24 September 2008. See www.aiflam.org.au (accessed 17 February 2016). Family Law Amendment (Arbitration and Other Measures) Rules 2015 (Cth) (21 December 2015); Family Law Amendment (Arbitration and Other Measures) Rules 2015, Explanatory Statement, Commonwealth of Australia, www.aiflam.org.au/content/Legislation/Explanatory_Statement_-_No_255_of_2015.pdf (accessed 26 February 2016). Family Law Rules 2004 (Cth) Ch 26B. The Family Law Rules 2004 (Cth) apply to proceedings in the Family Court. The Civil Dispute Resolution Act 2011 (Cth) applies to the Federal Circuit Court, with s 3 stating: ‘The object of this Act is to ensure that, as far as possible, people take genuine steps to resolve disputes before certain civil proceedings are instituted.’ The Federal Circuit Court Rules 2001 (Cth) apply to the Federal Circuit Court. J McIntosh and H Deacon-Wood, ‘Group Interventions for Separated Parents in Entrenched Conflict: An Exploration of Evidence-based Frameworks’ (2003) 9 Journal of Family Studies 187 at 194.

67.

Rule 1.05(1); Sch 1 Pt 1 — Financial cases and r 105(1); Sch 1 Pt 2 — Parenting cases.

68. 69.

Rule 1.10(2)(d). Rule 1.05(1)(b).

70. 71.

Federal Circuit Court Rules 2001 (Cth) Div 4.2 — ‘Rules for proceedings if Civil Dispute Resolution Act applies’. Graft v Mccormick [2014] FamCAFC 28 at [20]. For criticisms of the mandatory certification requirements and proposals for reform, see A Parker, ‘Section 60I: Problems with its Operation and Proposals for Reform’ (2014) 24 Australian Family Lawyer 1.

72. 73.

See, for example, Mortland v Wheaton (No 2) [2011] FamCA 950 at [22]. McGlennan v Don [2011] FamCA 204.

74.

See, for example, Katzer v Katzer [2011] FMCAfam 85. In this case, the matter was brought on short notice as a result of an urgent application regarding schooling. Once the urgent interim matter was determined, the court ordered that the parties attend FDR. See, for example, Pandetikis v Manna [2010] FAMCA 841.

75. 76.

77.

78.

Section 13C allows the Family Court, either on its own initiative or on the application of a party or an independent children’s lawyer, to order the parties to attend family counselling and/or FDR. If the parties fail to comply with the order, the counsellor or FDR practitioner must report to the court: s 13D. Although the court has a wide discretion to award costs under s 117, it is an impermissible use of a costs power to make an order for costs solely on the basis of deterrence: Winch v Jackson [2015] FamCAFC 75.

79.

T Altobelli, ‘A Generational Change in Family Dispute Resolution in Australia’ (2006) 17 Australian Dispute Resolution Journal 140 at 146. H Astor, ‘Making a “Genuine Effort” in Family Dispute Resolution: What Does it Mean?’ (2008) 22 Australian Journal of Family Law 102 at 112 (discussed in detail at 112–16). See also H Astor, ‘Genuine Effort in Family Dispute Resolution’ (2010) 84 Family Matters 61.

80. 81.

(2010) 43 Fam LR 309; FLC ¶93-437. Ibid at 329; 84,830.

82. 83.

[2007] FamCA 568. Ibid at [47].

84.

Attorney-General, The Hon Robert McClelland, ‘Improving Access to Justice’, Speech at the launch of National Law Week, Sydney, 17 May 2010, available at http://parlinfo.aph.gov.au (accessed 29 April 2012). R Field, ‘Federal Family Law Reform in 2005: The Problems and Pitfalls for Women and Children of an Increased Emphasis on Post-separation Informal Dispute Resolution’ (2005) 5 Queensland University of Technology Law Journal 28 at 30–6.

85.

86. 87.

B Batagol and T Brown, Bargaining in the Shadow of the Law: The Case of Family Mediation, Themis Press, NSW, 2011, p 8. See, for example, R Alexander, ‘Family Mediation: Friend or Foe of Women?’ (1997)

8 Australian Dispute Resolution Journal 255. 88.

89.

90.

91.

92.

Z Rathus, ‘Shifting the Gaze: Will Past Violence be Silenced by a Further Shift of the Gaze to the Future Under the New Family Law System?’ (2007) 21 Australian Journal of Family Law 87. Australian Law Reform Commission (ALRC), Report No 114/New South Wales Law Reform Commission Report No 128, Family Violence: A National Legal Response, October 2010, [21.31]. Australian Catholic University and Attorney-General’s Department, Framework for Screening, Assessment and Referrals in Family Relationship Centres and the Family Relationship Advice Line, July 2008. E Robinson and L Moloney, ‘Family Violence: Towards a Holistic Approach to Screening and Risk Assessment in Family Support Services’ (2010) 17 Australian Relationship Clearinghouse 1.

93.

R Kaspiew et al, Evaluation of the 2006 Family Law Reforms, Summary Report, AIFS and the Australian Government, Commonwealth of Australia, 2009, [3.2.2]. Ibid, [3.4].

94. 95.

Ibid, [4.1]. Ibid, [4.2].

96.

The two-volume report of this research can be viewed at http://eprints.jcu.edu.au/16847 (accessed 12 April 2016). For a detailed discussion of this study, see T Brown et al, ‘The Effect of Family Violence on Post-separation Parenting Arrangements: The Experiences and Views of Children and Adults from Families Who Separated Post 1995 and Post 2006’ (2011) 86 Family Matters 49; D Bagshaw et al, ‘Family Violence: Parents and Children’s Experiences Before and After the 2006 Reforms’ (2010) 21 Australian Family Lawyer 11. See also R Carson, B Fehlberg and C Millward, ‘Parents’ Experiences of Family Dispute Resolution and Family Law Services in Australia Following Shared Parenting Reform: Recent Qualitative Findings’ (2013) 25 Child and Family Law Quarterly 406 at 420.

97.

98.

99.

Australian Law Reform Commission (ALRC), Report No 114/New South Wales Law Reform Commission Report No 128, Family Violence: A National Legal Response, October 2010, Recommendation 21-2. For example, the Family Law DOORS framework: see www.familylawdoors.com.au (accessed 17 February 2016).

100. Family Violence Best Practice Principles, Edition 3.2, December 2015, Family Court of Australia and Federal Circuit Court of Australia, available at www.familycourt.gov.au (accessed 26 February 2016). 101. R Kaspiew et al, Evaluation of the 2012 Family Violence Amendments: Synthesis Report, Australian Government an Australian Institute of Family Studies, October 2015. 102. Ibid, p 33. 103. Ibid, p 44. 104. Ibid, p 21. 105. Ibid, p 32.

106. R Field and A Lynch ‘Hearing Parties’ Voices in Coordinated Family Dispute Resolution (CFDR): An Australian Pilot of a Family Mediation Model Designed for Matters Involving a History of Domestic Violence’ (2014) 36 Journal of Social Welfare and Family Law 392. 107. For example, the Magellan Program (see 3.53). 108. A Sifris and A Parker, ‘Family Violence and Family Law: Where To Now?’ (2014) 4 Family Law Review 3. 109. R Carson, B Fehlberg and C Millward, ‘Parents’ Experiences of Family Dispute Resolution and Family Law Services in Australia Following Shared Parenting Reform: Recent Qualitative Findings’ (2013) 25 Child and Family Law Quarterly 406. 110. Ibid at 420. 111. Ibid. 112. Family Court of Australia, Annual Report 15, p 54. 113. See information on family consultants at Family Law Courts, Publications, www.familycourt.gov.au/wps/wcm/connect/fcoaweb/home (accessed 12 April 2016). 114. DL & W (2012) FLC ¶93-496. 115. Akston & Boyle (2010) FLC ¶93-436. 116. Family Court of Australia, Family Court of Western Australia and Federal Circuit Court of Australia, Australian Standards of Practice for Family Assessments and Reporting, 11 February 2015, www.familycourt.gov.au/wps/wcm/connect/fcoaweb/about/policies-and-procedures/asp-family-assessments-reporting (accessed 17 February 2016). 117. Tryon v Clutterbuck & Attorney General (Intervenor) (2010) 246 FLR 193; FLC ¶93-453 (leave to appeal to the High Court of Australia was refused: Tryon v Clutterbuck [2011] HCATrans 133, 13 May 2011), available at www.austlii.edu.au (accessed 12 April 2016). 118. [2010] FamCA 445. 119. Unless authorisation has been made under s 38BD of the FLA. 120. (2011) 45 Fam LR 475 at 479, citing Lord Wensleydale in Grey v Pearson (1857) 10 ER 1216 at 1234. 121. An overview of case assessment conferences and conciliation conferences in the Family Court of Australia is available at www.familycourt.gov.au/wps/wcm/connect/fcoaweb/family-law-matters/, under the heading ‘About going to court and court processes’ (accessed 17 February 2016). For parenting matters in the Family Court of Western Australia, see www.familycourt.wa.gov.au (accessed 17 February 2016). 122. Family Law Rules 2004 (Cth) r 12.07; Federal Circuit Court Rules 2001 (Cth) r 10.05. 123. Replacement Explanatory Memorandum, Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011 (Cth), House of Representatives, 2010–11. 124. As reflected in the Chisholm Report: see R Chisholm, Family Courts Family Violence Review: A Report by Professor Richard Chisholm AM, C, Australian Government Attorney-General’s Department, Canberra, 2009. See also Family Law Council,

Improving Responses to Family Violence in the Family Law System: An Advice on the Intersection of Family Violence and Family Law Issues, Family Violence Committee, 2009. 125. T Brown et al, ‘The Effect of Family Violence on Post-separation Parenting Arrangements: The Experiences and Views of Children and Adults from Families who Separated Post 1995 and Post 2006’ (2011) 86 Family Matters 49 at 54. 126. Family Counsellors in the Family Law System, Australian Government, AttorneyGeneral’s Department, August 2012, p 2, www.ag.gov.au/FamiliesAndMarriage/Families/FamilyRelationshipServices/Documents/Familycounsellorsinthefamilylawsystem.pdf (accessed 29 February 2016). 127. Family Counsellors in the Family Law System, Australian Government, AttorneyGeneral’s Department, August 2012, www.ag.gov.au/FamiliesAndMarriage/Families/FamilyRelationshipServices/Documents/Familycounsellorsinthefamilylawsystem.pdf (accessed 29 February 2016). 128. Relationships Australia (Qld) v M (2006) 37 Fam LR 12 at 17. 129. H Astor and C Chinkin, Dispute Resolution in Australia, 2nd Edition, LexisNexis Butterworths, Sydney, 2002. 130. Ibid at 178. 131. Ibid. 132. Rastall v Ball (2010) 44 Fam LR 256 at 263 per Riethmuller FM. 133. Ibid. 134. H Astor and C Chinkin, Dispute Resolution in Australia, 2nd ed, LexisNexis Butterworths, Sydney, 2002, p 183. 135. R Carroll, ‘All for One and One for All or One at All — Mediation Legislation: Trends in Australia and the US’ (2002) 30 University of Western Australia Law Review 167 at 174. 136. (2011) 252 FLR 309; FLC ¶93-476. 137. [2012] FMCAfam 256. 138. (2009) 41 Fam LR 471. 139. Ibid at 478. 140. [2013] FCCA 660. 141. Ibid at [65]. 142. For example, in Kitson v Calise [2013] FCCA 1931, Harman J applied s 10J to exclude statements in an affidavit of what had been said during FDR. 143. D Cooper, ‘Inconsistencies In and the Inadequacies of the Family Counselling and FDR Confidentiality and Admissibility Provisions: The Need for Reform’ (2014) 4 Family Law Review 213 at 224. 144. Australian Law Reform Commission (ALRC), Report No 114/New South Wales Law Reform Commission Report No 128, Family Violence: A National Legal Response, October 2010, [22.28], Recommendation 22-1. 145. D Cooper, ‘Inconsistencies in and the Inadequacies of the Family Counselling and FDR Confidentiality and Admissibility Provisions: The Need for Reform’ (2014) 4

Family Law Review 213. 146. (2010) 244 FLR 416 147. Section 65DAB allows a court to have regard to the most recent parenting plan entered into between the child’s parents when making a parenting order in relation to a child, if doing so would be in the child’s best interests. 148. (2010) 244 FLR 416 at [29]. 149. Rastall v Ball (2010) 44 Fam LR 256 at 264 per Riethmuller FM. 150. For discussion, see R Chisholm, ‘Confidentiality and “Family Counselling” under the Family Law Act 1975’ in A Hayes and D Higgins (eds), Families, Policy and the Law, AIFS, Melbourne, 2014, p 185. 151. [2009] FMCAfam 1083. 152. Ibid at [54]. 153. (2010) 44 Fam LR 256. 154. [2014] FCCA 2724 at [26]–[34]. 155. (2010) 244 FLR 416. 156. D Cooper, ‘Inconsistencies in and the Inadequacies of the Family Counselling and FDR Confidentiality and Admissibility Provisions: The Need for Reform’ (2014) 4 Family Law Review 213 at 225–6; A Sifris and A Parker, ‘Family Violence and Family Law: Where To Now?’ (2014) 4 Family Law Review 3 at 20. 157. Roux v Herman (2010) 244 FLR 416 at [30] per Riethmuller FM. 158. Ibid. 159. D Cooper, ‘Inconsistencies in and the Inadequacies of the Family Counselling and FDR Confidentiality and Admissibility Provisions: The Need for Reform’ (2014) 4 Family Law Review 213. 160. Ibid; A Sifris and A Parker, ‘Family Violence and Family Law: Where To Now?’ (2014) 4 Family Law Review 3 at 20. 161. (2010) 44 Fam LR 256. 162. J Harman, ‘Confidentiality in Family Dispute Resolution and Family Counselling: Recent Cases and Why They Matter’ (2011) 17 Journal of Family Studies 204 at 212; E Mathew, ‘Viewpoint: Concerns about the Limits of Confidentiality in FDR’ (2011) 17 Journal of Family Studies 213 at 218–19. 163. T Altobelli and D Bryant, ‘Has Confidentiality in Family Dispute Resolution Reached its Use By Date?’ in A Hayes and D Higgins (eds), Families, Policy and the Law, AIFS, Melbourne, 2014, p 195. 164. Of these, 21 had commenced work as a family consultant prior to the 2006 FLA amendments, at which time their work with families in the court had been confidential: ibid, p 200. 165. T Altobelli and D Bryant, ‘Has Confidentiality in Family Dispute Resolution Reached its Use By Date?’ in A Hayes and D Higgins (eds), Families, Policy and the Law, AIFS, Melbourne, 2014, p 203. 166. Ibid. 167. Ibid, p 205.

168. NADRAC, Maintaining and Enhancing the Efficacy of ADR Processes, from Principles to Practice through People, Commonwealth of Australia, Attorney-General’s Department, February 2011. 169. Ibid, [4.7.4]–[4.7.6]. 170. Ibid, [4.7.7].

[page 98]

3 VIOLENCE AND ABUSE ___________________________

Introduction 3.1 Over the past two to three decades, there has been a marked increase in societal willingness to acknowledge the existence of family violence and child abuse.1 Chapter 1 has already provided some preliminary discussion on violence and abuse, as well as background information and statistics indicating the gendered nature of family violence: see 1.66–1.79. Although family violence and child abuse are to some extent two separate phenomena, research indicates that ‘there is considerable overlap between the experience of family/domestic violence and children’s experiences of other direct forms of abuse and neglect’.2 Concern about family violence and child abuse and their role in parental separation and divorce gathered momentum during the 1990s. Studies began to emerge indicating the relationship between family violence and separation. A study undertaken by the Australian Institute of Family Studies (AIFS), published in 1999 and dealing with the many causes of separation, found that a small proportion of adult respondents — some 12.1 per cent of women and 7.4 per cent of men — pointed to family violence or abuse as a cause of their separation.3 Another AIFS study, published in 2000 and specifically covering the post-separation

economic repercussions of family violence, found that a high proportion of separated and divorced respondents identified family violence as an issue in their former relationship: some 65 per cent of women and 55 per cent of men.4 Studies that preceded the passing of the 2006 parenting [page 99] law reforms (see 2.3ff) thus suggested that family violence and/or child abuse were a fairly common feature in the relationships of separated or divorced couples. Yet another AIFS study, published in 2007 and investigating couples whose separation had resulted in their parenting dispute proceeding to the Federal Magistrates Court or the Family Court of Australia, found that more than half of the cases sampled evidenced allegations of adult family violence and/or child abuse.5 Prior to the Family Law Reform Act 1995 (Cth), several research studies investigating child abuse allegations in custody and access disputes indicated that while family violence had become the core business of the Family Court of Australia, the court did not manage violence well.6 These studies led to the introduction of Project Magellan, a special Family Court of Australia program for disputes where allegations of serious child abuse have been made: see 3.54. A group of studies undertaken after the introduction of the Family Law Reform Act argued that the new legislation had sidelined family violence.7 Recent research data confirms that ‘the majority of cases that proceed to court involve allegations of family violence and child abuse and one study indicates that most of these cases reflect a severe level of violence’.8

Government inquiries following the 2006 reforms

3.2 When the Commonwealth Government introduced the Family Law Amendment (Shared Parental Responsibility) Act 2006, one of the many criticisms [page 100] directed at this legislation was its potential for marginalising family violence within family law disputes.9 It was suggested that: … [e]ngagement with family law processes can lead many victims to be less safe than before, jeopardizing the value of what might appear a ‘sensible’ strategy such as leaving the relationship with an abuser.10

The government responded to these criticisms with a plan for an extensive evaluation of the legislative changes, to be carried out by the AIFS in 2009. This evaluation would cover the first three years of the operation of the 2006 reforms.11 It was to be broad and comprehensive, but was not intended to highlight the issue of family violence. Nevertheless, this study found that 26 per cent of mothers and 17 per cent of fathers had reported being physically hurt by their partners. A further 39 per cent of mothers and 36 per cent of fathers had reported emotional abuse, defined in terms of humiliation, belittling insults, property damage and threats of harm during the course of the relationship. Moreover, 72 per cent of mothers and 63 per cent of fathers who reported experiencing physical violence before separation reported that their children had witnessed violence or abuse.12 The Commonwealth Government then commissioned four further inquiries dealing directly with family violence: the Family Law Council to report on improving responses to violence in the family law system by reviewing the intersection of family violence and family law issues;13 Professor Richard Chisholm to consider family courts and family violence;14

the Australian Law Reform Commission (ALRC) in association with the New South Wales Law Reform Commission (NSWLRC) to review and propose improvements for legal frameworks regarding family violence in a number of jurisdictions, including family law;15 and [page 101] Monash University, with the University of South Australia and James Cook University, to examine the impact of family violence on decision-making and the use of family dispute resolution services on separating adults and their children post-separation. To some extent, all these reports dealt with the interrelationship between family violence, including child abuse, and family law. However, from the perspective of the need to close the system gaps and avoid overlaps between the state family violence and child protection system and the federal family law system, it is suggested that the most significant of these reports is that conducted by the ALRC in association with the NSWLRC (the ALRC Family Violence Report). This inquiry was prompted by questions raised in the Time for Action report,16 which was prepared by the National Council to Reduce Violence against Women and their Children and released in March 2009. The Time for Action report focused on the problem and extent of violence against women in Australia. It recommended that the ALRC should undertake an inquiry into the laws relating to family violence in Australia.17 In January 2009, KPMG prepared a projection of the costs of family violence and concluded that about 750,000 women ‘will experience and report violence in 2021–22, costing the Australian economy an estimated $15.6 billion’.18 Acting on the Time for Action report, the Federal Government requested the ALRC and NSWLRC to focus on two specific issues:

the interaction between a range of laws in relation to family violence and abuse, including the interaction between the Family Law Act 1975 (Cth) (FLA) and state and territory family violence and child protection laws; and ‘[i]nconsistency in the interpretation or application of laws; and a specific focus on sexual assaults committed by a person with whom the complainant is in a domestic or family relationship’.19 During the course of this inquiry, it became clear that there were other areas of law that violence and abuse impacted on and that a follow-up report dealing with federal legislation in areas such as social security law, immigration law, employment law and superannuation law was required. In February 2012, the second ALRC report, Family Violence and Commonwealth Laws: Improving Legal [page 102] Frameworks,20 was tabled in parliament. The Commonwealth Government also commissioned two studies into shared care.21 Although the recommendations in the second ALRC report were not adopted in their entirety, the findings of these studies contributed to providing a basis for the passing of the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth). This legislation has introduced significant reforms relating to violence and abuse. In addition to removing the socalled ‘friendly parent provision’ (which acted to discourage parents wishing to curtail contact with the other parent from raising their valid safety concerns) and provisions that allowed for the making of adverse costs orders for unproved allegations of violence (see further, 8.14), expanded definitions of family violence and child abuse have been introduced (see 3.3ff). The government response to the ALRC Family Violence Report was agreed to by the Standing Council on Law and Justice in April

2013.22 While this response deals specifically with matters of Commonwealth law, all of the Report’s recommendations are being considered and many have been acted upon: see further, 3.4.

New definitions of ‘family violence’ and ‘child abuse’ in the FLA 3.3 As indicated above, part of the reforms following on from the various reports was the introduction of new and broader definitions of family violence and child abuse into the FLA in 2012. To constitute family violence, it is no longer required that there be an objectively reasonable ‘fear and apprehension of violence’.23 The new definition of family violence, contained in s 4AB(1), is comprised of two arms. Family violence can be either ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family’ or violent threatening or other behaviour that ‘causes the family member to be fearful’. Subsection (2) provides examples of conduct that may fall within this definition, including assault, sexual assault, repeated derogatory taunts, intentionally causing death or injury to an animal, preventing a family member from making or keeping a [page 103] connection with their family, friends or culture,24 and unlawfully depriving a family member of his or her liberty. Evidence of conduct that falls within the examples given in subsection (2) does not in itself necessarily mean that the conduct will constitute violence within the FLA definition of family violence. In order to come within the definition, conduct must fall

within one or both of the arms contained in the actual definition provided in subsection (1). However, it would be unusual for conduct of the type contained in subsection (2) not to fall within the definition in subsection (1). Circumstances when a child is ‘exposed to family violence’ (as opposed to being the victim of the violence) are also included within the definition of ‘family violence’: s 4AB(3). Exposure to family violence is described as being when a ‘child sees or hears family violence or otherwise experiences the effects of family violence’. The definition furthermore provides examples of exposure, which include: overhearing threats of death or personal injury between family members; seeing or hearing an assault of a family member by another family member; comforting or providing assistance if a family member has been assaulted by another family member; and cleaning up a site after intentional damage to property and being present when ambulance or police officers attend an incident following an assault of a family member by another family member: s 4AB(4). When making parenting orders, exposure to family violence, abuse and neglect form an integral part of the decision-making process: ss 60B, 60CC, 60CG and 64D. See generally, Chapters 8 and 9. The definition of abuse in relation to a child has been expanded to include not only assault, sexual assault or sexual activity using the child as a sexual object, but also causing the child to suffer psychological harm or serious neglect: s 4(1). Thus some conduct, which prior to the reforms would not have been considered abuse, will now be regarded as abuse.25 However, these new criteria are problematic as it is often difficult to prove the relationship between emotional abuse and psychological harm. Furthermore,

in order to fall within the definition of abuse, neglect must be ‘serious’. This will require an assessment of whether the conduct in the circumstances before the court constitutes ‘serious neglect’. Neither ‘neglect’ nor ‘serious’ is defined in the Act. After noting this, in Robinson & Shannon26 Tree J said that the normal, dictionary, meaning of the word neglect should apply: ‘to be remiss in care for or treatment of’. [page 104] In 2015, the AIFS published a report27 evaluating the 2012 reforms to the FLA. In summary, and most relevantly to this chapter, the key findings from the report are as follows: Parents who use the family law system (and most do not) tend to be affected by complex issues including family violence, mental ill health, substance abuse and safety concerns for themselves and/or their children. There has been an increased emphasis on identifying families with concerns about family violence and child abuse; however, 29 per cent of parents using family law system services reported never being asked about family violence or safety concerns. Family law professionals indicated that better screening tools and approaches are required. Subtle changes in parenting arrangements are evident, such as more parents with safety concerns reporting a shift away from overnight stays with fathers. The proportion of children with court orders for shared care, where allegations of family violence or child safety had been raised, fell after the reforms (from 19 per cent to 11 per cent).

Recent developments

Family violence 3.4 In addition to amendments to the FLA, there have been further important and recent developments in the area of family violence, some of which are also a direct result of the various reports referred to above. However, another event has also been significant in raising public awareness and galvanising governments into increased action to combat family violence: the murder in 2014 of 11-year-old Luke Batty by his father (in circumstances where the parents were estranged). Luke’s family had been subjected to ongoing family violence by the father. Though the coroner concluded that no one could have reasonably foreseen Luke’s death, the case highlighted various process and systems gaps in the Victorian family violence system.28 This highprofile murder, and the subsequent activism of Luke’s mother, Rosie Batty (who was named the 2015 Australian of the Year), have been instrumental in motivating Australian governments to renew their efforts in tackling family violence. Indeed, the Chief Justice of the Family Court noted that 2015 ‘has seen a greater focus on the extent and effects of family violence on the members of the families [page 105] involved in particular, and the community in general. There has also been an increased interest in how the judicial system engages with victims of abuse both at a state and federal level.’29 It is not possible to cover in detail all that has been undertaken and proposed in the last few years; however, we have set out below a brief summary of the most recent and important developments. The ALRC Family Violence Report resulted in two important initiatives:

–

the development by the Commonwealth Attorney-General’s Department (in collaboration with Relationships Australia South Australia) of a multidisciplinary training package known as AVERT (Addressing Violence: Education, Resources, Training); this is aimed at encouraging collaboration between professionals working in the family law system, and developing a sound understanding about the nature, impact and appropriate response strategies relating to family violence;30 and – the development of DOORS (Detection of Overall Risk Screen), ‘an empirically based standardised front line screening framework … that assists separating parents and family law professionals to detect and respond to both wellbeing and safety risks’.31 In February 2015, the Victorian Government launched a Royal Commission into Family Violence, with an expected reporting date of 29 March 2016.32 The terms of reference are broad, covering both consideration of how to eradicate or reduce family violence (and indeed violence more generally); how to better protect and support victims of violence; and how to both hold accountable, and help change the behaviour of, perpetrators of violence. The Commission received nearly 1000 submissions and, at the time of writing, was compiling its report. In September 2014, the Queensland Government set up a Taskforce on Domestic and Family Violence in Queensland. The resultant report was released in February 2015 and contains 140 wide-ranging recommendations.33 A Domestic and Family Violence Implementation Council has been established to monitor the Report’s implementation and to champion the implementation of the Queensland Domestic and Family Violence Prevention Strategy.34 The Family Law Council has been asked by the Commonwealth Attorney-General to report on five terms of reference relating to harmonisation of service

[page 106] delivery in matters that cut across state care and protection systems, and the family law system. An interim report on the first two terms of reference was delivered in June 2015 and is ‘aimed at offering some workable preliminary solutions to the problems faced by families with multiple legal needs … and to enhance the capacity of the family law system and state and territory jurisdictions that deal with child protection and family violence to deliver integrated services to client families’.35 A final report is due mid-2016. Implementing a recommendation in the ALRC Family Violence Report, the Commonwealth Attorney-General announced (also in June 2015) that work had begun on a National Family Violence Bench Book, with the expectation that it would be ready by June 2017. This is intended to provide ‘a comprehensive online tool for judges across Australia, covering civil and criminal laws in federal, state and territory jurisdictions. It will promote best practice and consistency in judicial decision making in cases involving family violence’.36 The Council of Australian Governments (COAG) Advisory Panel on Reducing Violence Against Women and their Children (an initiative announced by then Prime Minister Abbott in May 2015) delivered its preliminary advice to COAG in July 2015.37 This highlighted the prevalence of family violence and the need to address the problem with both better service provision and education initiatives. In August 2015 the report of a Senate inquiry, Domestic Violence in Australia,38 was delivered. The Senate Finance and Public Administration References Committee had been asked to consider a range of things, including: the prevalence and impact of domestic violence, in particular for Indigenous women and women with a disability; factors contributing to levels of domestic violence; the adequacy of policy and community

responses; and how the Federal Government can support the necessary social, cultural and behavioural shifts required to eradicate violence against women and their children. As yet, there has been no formal government response to this report; however, the same committee has now been asked to report on domestic violence and gender inequality, with a reporting date of August 2016.39 [page 107] In response to the COAG Advisory Panel’s preliminary advice, in September 2015 Prime Minister Turnbull announced his first major policy initiative: a $100 million package of reforms designed to ‘provide a safety net for women and children at high risk of experiencing violence. The package will improve frontline support and services, leverage innovative technologies to keep women safe, and provide education resources to help change community attitudes to violence and abuse.’40 In December 2015, the COAG Advisory Panel released its second report,41 which made recommendations covering things such as: a model law framework to ensure women’s safety is not compromised when moving between jurisdictions; the development of public reporting and accountability frameworks for the National Outcome Standards for Perpetrator Interventions;42 and technology-assisted abuse of women and children.

Child abuse 3.5 Over recent decades, significant steps have been taken to tackle problems of child abuse. Legal reforms have been implemented, specialist services have been established, policies and procedures have been updated and protective behaviour programs have been introduced into schools. Nationally, a

number of bodies have been established, including the National Association for the Prevention of Child Abuse and Neglect Inc (NAPCAN), the object of which is to prevent child abuse by facilitating child-friendly communities. Also, in response to the recommendation of a report of the National Committee on Violence43 that prevention of child abuse be the responsibility of a national body (Recommendations 21 and 22), the National Child Protection Council (then the Australian Council for Children and Parenting) was established in 1991 and was mandated with the responsibility for overseeing child abuse prevention in Australia. The National Child Protection Clearinghouse — an information, advisory and research unit which focused on child abuse and related family violence — ran under the auspices of the Council. This, together with a number of other organisations, has morphed into the Child Family Community Australia Research Practice and Policy Information Exchange, which is now run under the auspices of the AIFS.44 [page 108] Other milestone events include, in 2009, the COAG endorsing a National Framework for Protecting Australia’s Children 2009–20, which provided the foundation for a national approach to protecting children from violence and abuse.45 A number of states and territories launched their own inquiries with a particular focus on child abuse. In 2010, the Northern Territory released a two-volume report, Growing Them Strong, Together: Promoting the Safety and Wellbeing of the Northern Territory’s Children.46 In 2008, the Wood Special Commission of Inquiry into Child Protection Services in NSW released its report,47 and the New South Wales Government has since acted on these recommendations through the 2009 Keep Them Safe: A Shared

Approach to Child Wellbeing reform agenda report.48 An outcomes evaluation of the implementation of Keep them Safe49 found mixed results, but expressed the view that it was too early for some of the objectives to be met. In 2010, the Victorian Law Reform Commission published a report resulting from its inquiry into protection applications in the Children’s Court, which focused on the reformation of court processes.50 In February 2012, the Report of the Protecting Victoria’s Vulnerable Children Inquiry (the Cummins Report)51 was tabled in parliament. This report into Victoria’s child protection system made 90 recommendations and the Victorian Government has undertaken to act on many of these, though there has been some concern at the level of implementation.52 In June 2013, the Queensland Child Protection Commission of Inquiry (the Carmody Inquiry) published its final report on its vision for an [page 109] overhauled child protection system in that state.53 The Queensland Government has essentially accepted the 121 recommendations in the report54 and implementation is under way.55

International instruments 3.6 Australia is a party to a number of international instruments relevant to violence and abuse against women and children. The International Covenant on Civil and Political Rights (ICCPR) (ratified by the Australian Government in 1980) contains a number of articles relevant to family violence. Article 23 provides that ‘[t]he family is the natural and fundamental group unit of

society and is entitled to protection by society and the State’. Article 17 also provides for protection of the family and Art 24 provides the child with a right to protection. In addition, Australia is a party to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) which came into force in 1991, as well as the Declaration on the Elimination of Violence against Women, which was adopted on 20 December 1993 to strengthen CEDAW. Through its ratification of the United Nations Convention on the Rights of the Child (CROC), Australia has undertaken obligations in relation to protecting the rights of children. These obligations have been strengthened with the 2011 Family Law Legislation Amendment (Family Violence and Other Measures) Act inserting an additional object (a new s 60B(4)) into Pt VII of the FLA to give effect to CROC. According to the Explanatory Memorandum, the purpose of introducing this object is: … to confirm, in cases of ambiguity, the obligation on decision makers to interpret Part VII of the Act, to the extent language permits, consistently with Australia’s obligations under the Convention.56

The Memorandum is clear that this section is of interpretive value only and its inclusion should not be regarded as incorporating CROC into domestic law.57 While confirming this position, the importance of CROC to judicial [page 110] decision-making can be seen, for example, in the decision of Bryant CJ (with whom Strickland J agreed) in Re Jamie.58 CROC contains a number of articles that are relevant to the issue of child protection. Article 9 states that children should generally not be separated from their parents against their will, but goes on to provide that ‘such determination may be necessary in a

particular case such as one involving abuse or neglect of the child by the parents’. A key provision in establishing the child’s right to protection from violence and abuse is Art 19: 1.

States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has care of the child.

2.

Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.

Other relevant Articles include Art 34, which commits participating countries to protecting the child from all forms of sexual exploitation and abuse; Art 39, which deals with measures to promote physical and psychological recovery and social reintegration of a child victim of abuse; and Art 3(3), which deals with the rights of children who have been placed in care settings that are a substitute for natural parents. It has been argued that in view of the obligations that Australia has undertaken through its ratification of CROC, the Commonwealth has the primary responsibility for the prevention of child abuse.59 Fulfilment of this responsibility would involve developing a coordinated Commonwealth policy on child welfare, and facilitating cooperation among the states and territories and between agencies. To this end, it would also be desirable for greater uniformity to be achieved in state and territory child welfare legislation. The most recent step to bringing this goal to fruition was the appointment in early 2013 of a National Children’s Commissioner within the Australian Human Rights Commission. Commissioner Mitchell identified protection of children from violence as a priority in her first report at the end of that year. In launching

[page 111] her 2015 annual report60 Commissioner Mitchell noted the public debate sparked by the death of Luke Batty, saying: Given this national attention and commitment, I decided to use my report this year to highlight the unique experiences of children affected by family and domestic violence. This involved receiving submissions, collecting and analysing new data, reviewing the research and hosting a series of expert forums and individual consultations. The results are showcased in the Children’s Rights Report we are launching today. The report highlights new information about the incidence of and impact of family on children and sets out three main areas for concerted action by governments — in relation to data and research, early intervention and system reform. New data generated for this work shows that 1 in 12 men and women experienced physical abuse by a family member, and one in 28 experienced sexual abuse by a family member, before the age of 15. Available Victims of Crime data for some jurisdictions only further indicates that for the four year period to 2013, there were over 14,000 physical assaults and over 12,000 sexual assaults of children perpetrated by parents or other family members — mostly directed at younger children aged between 0 and nine years of age. For me these are shocking statistics that show just how many children are direct victims of violence in the home. Previous studies have also estimated that over 20% of children and young people have witnessed violence against a mother or step mother.61

The Report makes 16 recommendations62 focused on the three areas referred to above: data collection, early intervention and system reform. 3.7 Practically speaking, one of the greatest difficulties in addressing issues of violence and abuse at a national level stems from Australia’s federal structure: see Chapter 4. In Australia, legislative power is divided between the states and the Commonwealth. The Commonwealth Constitution confers on the Federal Parliament the power to legislate on specific topics. Residual powers that are not expressly or impliedly vested in the Commonwealth remain within the exclusive legislative domain of

the states. While legislative powers relating to parenting issues arising from parents separating lie firmly within the domain of [page 112] the Commonwealth, and hence the family courts’ jurisdiction, powers relating to child welfare and family violence orders fall within the legislative competence of the states and territories and hence the state and territory courts. Neither the Commonwealth nor the states and territories have complete legislative competence in this area, resulting in an overlapping, fragmented family law system. The bifurcation of the legislative powers in areas of family law has resulted in a family law system where: … there are gaps in, as well as between legal systems. Further, families may be involved in multiple proceedings in more than one court in order to deal with issues arising from separation and family violence.63

The problems arising from this jurisdictional arrangement are reiterated over and over again in the various reports referred to above. In the remainder of this chapter, we discuss the specific remedies available under federal and state or territory laws to protect adult and child victims from violence and abuse. The way violence and abuse are taken into account in parenting and property matters is discussed in the general context of those topics in Chapters 8, 9 and 14.

Injunctions Introduction 3.8 For married couples, an injunction under s 114(1) of the FLA is one remedy available to a victim who suffers violence from a

partner. Section 114(1)(a) specifically refers to ‘an injunction for the personal protection of a party to a marriage’. Parties who are living or have lived in a de facto relationship are unable to obtain an injunction for personal protection under the FLA as s 114(2)A is limited to a ‘de facto financial cause’. Such parties must thus rely on state/territory family violence legislation for personal protection. Where the partners are not married, similar provisions may be found in some state and territory domestic relationships legislation. For example, New South Wales allows a party to apply under its domestic relationships legislation for an order for personal protection.64 It has been held that in such cases, similar state/territory provisions should be construed in the same way as s 114 of the FLA.65 However, in such circumstances de facto parties may be better off relying on state/territory family violence legislation. [page 113] 3.9 The relevant statutory provision for a victim who is, or has been, married is s 114(1) of the FLA: (1) In proceedings of the kind referred to in paragraph (e) of the definition of matrimonial cause in subsection 4(1), the court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate, including: (a) an injunction for the personal protection of a party to the marriage; (b) an injunction restraining a party to the marriage from entering or remaining in the matrimonial home or the premises in which the other party to the marriage resides, or restraining a party to the marriage from entering or remaining in a specific area, being an area in which the matrimonial home is, or the premises in which the other party to the marriage resides, situated; (c) an injunction restraining a party to the marriage from entering the place of work of the other party to the marriage; … (f) an injunction relating to the use or occupancy of the matrimonial home.

Proceedings for an injunction under s 114(1) of the FLA must

involve circumstances arising out of the marital relationship: see para (e) of the definition of ‘matrimonial cause’ in s 4(1). Separation or divorce does not put an end to the existence of the power.66 Indeed, the breakdown of a relationship may well create the need for an injunction. As Chief Justice Nicholson has commented: The research … shows that violence is particularly likely to emerge or be exacerbated by marital separation, which puts an additional onus on all those who have contact with people who are experiencing marriage breakdown to be sensitive to their possible danger and fear … It must be recognised that those approaching the court … are particularly vulnerable to violence from their partners. Separation provides no protection and is no guarantee of physical safety; the fact that cohabitation has ceased may in fact precipitate a violent attack.67

3.10 While de facto couples cannot seek injunctions under the FLA for personal protection, s 114(2A) permits the making of injunctions and orders concerning the use, occupancy, and the right to enter onto, the parties’ residence(s). For married couples, s 114(3) of the FLA contains ancillary injunctive powers; these are mirrored in s 90SS(1)(k) and (5) for couples who are or were living in a de facto relationship. While the FLA does not provide for de facto couples to apply for an injunction for personal protection, s 68B of the FLA, in addition to providing [page 114] for an injunction for the personal protection of a child, allows the court to make orders or grant an injunction for the personal protection of: parents of a child; a person who has parental responsibility for a child; and persons with parenting orders directing where a child is to live, with whom the child is to spend time and with whom a child is to communicate. Such orders and injunctions are not dependent on the existence of a marriage or a de facto relationship: see 3.16–3.18 for further discussion.

To date, the FLA injunction has not proved popular where personal protection is concerned, with victims preferring to use a protection order under state or territory legislation. The principal reason for the injunction’s lack of popularity has been the expense and delay in obtaining injunctions and the difficulties with enforcing them.68 An application for an injunction must be made by the individual or legal representative (not the police) and proceedings may prove costly and protracted. The Family Court’s general philosophy has (in the past at least) been perceived as unsuited to the treatment of criminal conduct. However, it is worth noting that injunctions under the FLA, and for that matter state or territory family violence orders, cover a range of conduct that is not criminal, such as attendance at a particular place. 3.11 As to legislative reforms, the Family Law Amendment Act 1989 (Cth) strengthened the enforcement provisions of the Act, which are discussed at 3.19–3.20. Nevertheless, criticisms of the injunction’s effectiveness have continued.69 The injunction provisions of the FLA were not the subject of direct amendment by the Family Law Reform Act 1995 (Cth), the 2006 reforms or the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth), in spite of the express recognition in the Explanatory Memorandum that the existing legislation ‘fails to adequately protect children and other family members from violence and child abuse’.70 However, the Family Court of Australia itself has in recent years demonstrated a heightened awareness of the pervasive influence of violence, and has declared that violence must be taken seriously by the court across a range of proceedings. The former Chief Justice of the Family Court provided strong personal leadership in breaking the perceived silence about violence and in indicating the responses that are required by the judiciary and profession alike;71 likewise, the current [page 115]

Chief Justice has been a vocal supporter of reforms in this regard, including the proper resourcing of the family courts to deal with the complex issues coming before them.72 In March 2004 the Family Court released a Family Violence Strategy.73 The final step in implementing that strategy was the adoption of Family Violence Best Practice Principles (the Best Practice Principles) in March 2009. The current edition of the Best Practice Principles (December 2015) recognises: the harmful effects of family violence and abuse on victims; the place accorded to the issue of family violence in the FLA; and the principles guiding the Magellan program for the disposition of cases involving allegations of sexual abuse or serious physical abuse of children (see 3.54).74 The Best Practice Principles are intended to provide decisionmakers with practical guidance when dealing with matters involving family violence and abuse. While this attitude on the part of the Family Court itself may lead to more effective interpretation of the injunction and enforcement provisions, there is no evidence as yet that victims are increasing their use of the injunctive remedies under the FLA. The Family Law Council and Family Law Section of the Law Council of Australia produced Best Practice Guidelines for Lawyers Doing Family Law Work in 2010 (these are currently under review). Part 9 of these guidelines deals with family violence and recognises family violence as a serious problem.75 3.12 The injunction is a discretionary remedy; the mere existence of the power to grant an injunction does not determine the exercise of the court’s discretion whether in fact to do so in all the circumstances of the case. We discuss some principles that the courts have developed for the exercise of discretion in the following sections.

3.13 The Family Law Reform Act 1995 (Cth) amended s 43 (general principles) of the FLA to include s 43(1)(ca): ‘the need to ensure safety from family violence’. This amendment had the potential, in the hands of a judiciary with heightened awareness of the need to act strongly and decisively against violence, to influence the future operation of both the substantive injunctions provisions and those provisions relating to enforcement. In the fifth edition of this book, published just after those amendments, it was noted that s 43 had been put to little substantive [page 116] use in the life of the Act. A hope was expressed that this new subparagraph would, in future, prove to be the exception to that generality. To date, this has not proved to be the case. The Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) has further amended this section so that it now reads ‘the need to ensure protection from family violence’, which promotes consistency in terminology throughout the legislation. It is not envisaged that this amendment will have any significant practical application.

The injunction as protection from violence and harassment 3.14 As has already been discussed, an injunction for protection pursuant to s 114 is not available to parties who are living or have lived in a de facto relationship: see 3.8. For married couples, the terminology of s 114(1) of the FLA is wide, and has been interpreted liberally by the Family Court of Australia. Note also that the specified powers are not exhaustive or exclusive; hence an injunction can restrain not only physical violence, but also harassment in the wider sense. ‘Personal protection’ (s 114(1)(a))

has been interpreted to include not only physical protection, but also protection of the right to lead one’s own life without interference.76 However, in spite of the broad application of this provision, the case of Oates & Crest77 highlights the limits of this injunctive power. In this case, the Full Court held that an injunction restraining the wife from coming within 100 m of the home of the husband’s girlfriend was beyond the power granted by s 114(1)(a). It was accepted that the husband’s application for an injunction arose out of the marital relationship and the mere fact that the premises were owned by a third party did not necessarily make the injunction beyond power. However, in this case another injunctive order had been made restraining the wife from communicating with the husband except through his lawyer and this would effectively restrain the wife from entering the girlfriend’s premises when the husband was there. The further injunction therefore only added the restraint of keeping the wife away from the premises when the husband was not there, and this was not an injunction for the personal protection of the husband. The girlfriend, it was noted, could utilise other state provisions if she wanted an injunction for her own benefit.

Injunctions excluding a party from the home 3.15 An injunction under s 114(1) of the FLA (see para (f)) can operate as an ouster order; that is, an order excluding one party from the home, even if he or she has a proprietary interest in the property. Since the referral of de facto financial matters to the Commonwealth, subs (2A) has been added to extend this jurisdiction to de facto couples. The power to issue injunctions under the statutory principles is wider than under equitable principles, and courts should consider the general [page 117]

purpose of the legislation when interpreting it.78 An injunction can be framed to restrict a party from approaching the other’s workplace or home: see s 114(1)(b) and (c). Furthermore, injunctions should be specifically worded; for example, ‘not to annoy’ is too vague.79 An injunction may restrain violence and at the same time regulate occupation of the home.80 As outlined above, the injunction is a discretionary remedy. The case law emphasises the width of the discretion conferred by s 114(1) (and now s 114(2A)); while it is not a trivial matter to exclude a person from his or her home, there is ‘no fixed list of criteria which must be established for the application to be successful’.81 Having said that, as pointed out by the Full Court in Davis & Davis,82 ‘[t]he matters which should be considered include the means and needs of the parties, the needs of the children, hardship to either party or to the children and, where relevant, conduct of one party which may justify the other party in leaving the home or in asking for the expulsion from the home of the first party.’ Drawing on Davis, Alexander has summarised the Family Court’s approach in the reported authorities thus: When making an order excluding the violent person from access to property, the court must weigh up such factors as the means and needs of the respective parties, the needs of the children, the availability of alternative accommodation, the conduct of the party seeking the order, the proprietary rights of the parties and whether or not a less restrictive order would be sufficient. It must be necessary or reasonable to exclude the violent party. Precedent cases in this area merely provide guidelines for trial judges. They do not establish fixed criteria and there is a good measure of discretion vested in the judge. Most of the cases cited pre-date the 2006 and 2011 reforms to the Family Law Act 1975. Broadly, the court must assess whether it would not be reasonable or sensible or practicable to expect the family to continue to live together.83

In a case where the degree of violence poses a serious threat to family members, an injunction for exclusive use and occupation of the matrimonial home may be combined with terms restraining the other party from coming within a defined distance of that home.84

[page 118]

Injunctions for the protection of a child (and others) 3.16 A potentially significant remedy for the personal protection of a child who is the victim of child abuse is an injunction directed at restraining the perpetrator from interfering with the child. An injunction under this provision may prevail against the whole world.85 Such injunctive relief is most likely to be sought in circumstances where the adult parties have separated, and the child is no longer residing with the perpetrator of abuse. 3.17 Injunctions for the protection of children (and others) are available under the FLA. The current provision is s 68B, which was inserted by the Family Law Reform Act 1995 (Cth). Where proceedings are instituted in a court having jurisdiction under Pt VII of the FLA, the court can make such order or grant such injunction as it considers appropriate for the welfare of the child, including an injunction for the personal protection of the child (s 68B(1)(a)) or an injunction for the personal protection of a parent of the child, a person who has parental responsibility for the child, and any person with whom the child lives, spends time or communicates, under a parenting order: s 68B(1)(b). In view of the terms of s 68B(1)(b), there is potentially some overlap between the Family Court’s jurisdiction under this provision and injunctions for the protection of spouses available under s 114, which were discussed earlier in this chapter: see 3.10–3.15. The significant point to note is that under s 68B, the basis of the court’s jurisdiction is to grant ‘such injunction it considers appropriate for the welfare of the child’: s 68B(1) (emphasis added). In Department of Human Services v Brouker,86 Mushin J made an order restraining a 14-year-old girl from leaving Australia to enter into an arranged marriage with a man she had never met.

His Honour accepted the submission on behalf the Department that permitting the girl to be taken overseas for the purposes of marriage would be contrary to her welfare. Although the welfare of the child is clearly a relevant consideration in such proceedings, Pt VII makes it clear that this is an area where the paramountcy principle (best interests of the child as the paramount consideration) does not apply. In Flanagan v Handcock,87 the Full Court considered whether the best interest test applied to granting an injunction under s 68B. Kay and Holden JJ in separate judgments stated that if the paramountcy principle was not decisive, it was certainly influential. The approach taken under Pt VII is that the best interests of the child are to be treated as the paramount consideration only in those contexts where it is expressly stated to apply (see generally, Chapter 8) and [page 119] there is no such direction to the court in s 68B. This has now been confirmed in a number of Family Court decisions.88 Section 68B further provides that an injunction can be granted restraining a person from entering or remaining in a place of residence, employment or education (or other specified area that contains a place of this kind) of the child or other person referred to in s 68B(1)(b). Injunctions granted under s 68B may be granted unconditionally or on such terms and conditions as the court considers appropriate: s 68B(3). In circumstances where an injunction has been expressly granted for the personal protection of a person (note the terms of s 68C(2)), and a police officer believes, on reasonable grounds, that the person against whom the injunction is directed has breached the injunction by causing or threatening to cause bodily harm to the protected person or by harassing, molesting or stalking that person, the police officer may arrest that person without warrant: s 68C(1).

By virtue of s 68C(3), the provisions in s 114AA in Pt XIV of the Act (dealing with procedure on arrest, bringing the person before the court, and powers of custody in respect of persons arrested for breach of an injunction under s 114AA) apply to a person arrested under s 68B: see 3.19. Due to the Family Court’s expanded jurisdiction over children, this form of relief is available for the protection of any child, regardless of the marital status of the child’s parents. The only limit on the court’s jurisdiction stems from the terms of s 69ZK of the FLA, which precludes the Family Court from making an order in relation to the child who is under the care of a person under a child welfare law: see 3.47 for the extent of the court’s jurisdiction. 3.18 Legislation providing for protection orders (or ‘apprehended violence orders’ or ‘restraining orders’ as they are variously known) under state and territory legislation generally also extends to the protection of children.89 Thus, particularly where the parent of the child is pursuing relief for their own protection under state or territory legislation (a possibility discussed further at 3.21–3.22), this may be a preferred remedy also for the protection of any child at risk of abuse. The precise scope of the legislation varies between jurisdictions, but in all cases encompasses protection from physical violence. Note should be taken in this regard of the broad terms of the FLA provision which provides for an injunction for the ‘personal protection’ of a child: the term ‘personal protection’ is not defined in the legislation but has been widely defined by the Family Court: see 3.14 and Marriage of Kemsley90 cited there. [page 120]

Enforcement

3.19 Enforcement problems have been identified as a principal reason for the injunction’s ineffectiveness and consequent lack of use in protecting a victim from violence and harassment: see the discussion and references at 3.10–3.11.91 For many years, the remedies for breach were wholly inadequate; the Family Court had only a discretion to attach a power of arrest, and that discretion was in practice sparingly exercised. Now, s 114AA of the FLA provides for an automatic power of arrest on the breach of an injunction in certain circumstances. A police officer may arrest a person without warrant where the breach is constituted by conduct that causes or threatens to cause bodily harm to the person protected by the terms of the injunction, or where that person has been harassed, molested or stalked: s 114AA(1). Effective enforcement of injunctions therefore depends on police being aware of these provisions and their powers. It has been suggested that poor communication between the Family Court of Australia and the police forces of the states and territories has hampered enforcement in this regard,92 and that some police may not fully understand their role in enforcing injunctions.93 For the power of arrest to attach automatically, it is necessary for an injunction to specify that it is for the personal protection of a party or children.94 It should be noted that in many cases, police might focus on the state/territory family violence legislation (with which they are more familiar and which contains powers to arrest in a broader range of circumstances) rather than enforcing FLA injunctions. Parties themselves may be unaware of the power to arrest and therefore may not call police when an injunction is breached or not mention the existence of a FLA injunction. Section 68C provides similar powers of arrest in relation to injunctions granted under s 68B. 3.20 There are also sanctions for non-compliance with orders of the Family Court generally, and for contempt.95 These include imprisonment and fines.96 Nevertheless, the Family Court has been criticised for failing to impose penalties sufficient to operate

as an effective deterrent to breach of an injunction.97 Yet the Full Court of the Family Court has given a strong indication of its view that violent [page 121] breaches of orders and injunctions should attract serious penalties. In Marriage of Schwarzkopff,98 a husband was found guilty of 29 breaches of orders made under the FLA. He was eventually sentenced under s 112AD for contravention without reasonable excuse to two years’ imprisonment. The Full Court dismissed his appeal against sentence and commented thus: One of the fundamental purposes of a legal system in a civilised society is the protection of members of the community from acts of violence. Until recent times the criminal law, which makes acts of this kind an offence, was not properly enforced in cases where violence occurred within the family. Such violence was considered private in nature and beyond the reach of the law except in the most serious cases. However, in the last 20 years increasing attention has been focused on the prevalence of crimes of violence within the family and attitudes which tolerate family violence are now condemned by the law. … Personal relationships, especially within the family, are rightly protected by privacy, but that privacy must not be allowed to hide violence. Family violence is not a private matter and must be treated seriously by the courts, not only when prosecuted as a criminal offence in the ordinary way, but also where violence is an element of a breach of an order of the Family Court. We conclude that far from the sentence being excessive, it was appropriate to meet the circumstances of this case. The fact is that over a period of three months the husband subjected his wife to a campaign of terror and violence during which the wife was justified in feeling that her life was in serious danger. She faced this campaign of terror with considerable fortitude. She repeatedly sought the aid of the courts and the police to protect her as a citizen from this conduct. A number of the individual incidents were rightly described by the trial judge as ‘serious’ and ‘grave’. They included the events of 22 June which fell little short of rape. In the incident of 20 July the husband subjected the wife to a vicious and violent assault. Orders were made by a court under the Family Law Act on 28 March which should have made it clear to the husband that he was not entitled to pursue conduct of this type. On 5 May he was placed on a recognizance following breaches of those orders. Within days he returned to his former behaviour which escalated from that time. A particularly serious aspect is that it is clear that part of the

intention of the appellant over the latter period was to terrorise the wife into abandoning these court proceedings. The court has an obligation to the wife who seeks its protection. Society is entitled to expect that the court will meet conduct of this type in an appropriate way and the court has an obligation to itself to ensure that orders which it has made are complied with and that persistent, deliberate and serious breaches are dealt with in a firm and clear way.99

[page 122] In Marriage of Lindsey,100 the Full Court held that in proceedings in the Family Court under s 112AD, being contravention proceedings, the standard of proof to be applied is the civil standard of proof, since such proceedings are not a prosecution for an offence and s 140 of the Evidence Act 1995 (Cth) applies. The civil standard of proof (on the balance of probabilities) is, of course, much easier to satisfy than the criminal standard (beyond reasonable doubt). However, in Tate v Tate101 it was held that where contempt proceedings under s 112AP are brought, these are proceedings for an offence, and so the higher, criminal standard of proof applies. Each element of the offence must be proved beyond reasonable doubt.102

Protection orders under state and territory legislation 3.21 A protection order under state and territory legislation is the legal remedy most commonly invoked in practice by victims of violence. A protection order (alternatively referred to as an ‘apprehended violence order’ or a ‘restraining order’, depending on the jurisdiction) can be obtained quickly (either on application by an individual or the police) from a Magistrates’ Court, if the applicant satisfies the court on the balance of probabilities (civil standard) that the order is needed. An order can be framed to restrain a wide range of conduct, including harassment and

approaching in the vicinity of the applicant. Breach of the terms of a protection order is a criminal offence (although the original proceedings to obtain the order are not criminal in nature), and the police may arrest without warrant. Its appeal is therefore obvious.103 3.22 As in most areas of law outside the scope of Commonwealth legislative power, there is considerable variation in the details of the legislation in operation in the various parts of Australia. Most jurisdictions have legislation under which an order is obtainable by and against those within certain defined categories of relationship, such as spouses, de facto partners, those married according to Indigenous customary law, relatives or family members more generally, and those in intimate relationships. The definition and extent of the classes protected varies from statute to statute.104 Protection orders can be emergency, urgent, temporary, interim or final orders. They may be applied for ex parte or by consent, including by consent ‘without proof’ or ‘without admission’. When a protection order is made, various terms [page 123] and conditions may attach to the order; for example, prohibiting the respondent from being on the premises where the protected person lives or works. If a person contravenes or breaches a protection order, that person may be arrested without a warrant. Although the definition of ‘family violence’ or ‘domestic violence’ differs between the states and territories, protection orders may cover a variety of conduct that may or may not constitute a tort or a criminal offence. For example, the Victorian legislation covers behaviour that ‘torments, intimidates, harasses or is offensive to the other person’ and provides examples such as

‘threatening to disclose a person’s sexual orientation’ and ‘threatening to withhold a person’s medication’.105 The relevant statutes and the names of the protection orders in each jurisdiction are as follows. Jurisdiction

Statute

Order

Australian Capital Territory

Domestic Violence and Protection Orders Act 2008 (ACT)

Domestic violence order

New South Wales

Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Apprehended domestic violence order

Northern Territory

Domestic and Family Violence Act 2007 (NT)

Domestic violence order

Queensland

Domestic and Family Violence Protection Act 2012 (Qld)

Protection order

South Australia

Intervention Orders (Prevention of Abuse) Act 2009 (SA)

Intervention order

Tasmania

Family Violence Act 2004 (Tas)

Family violence order

Victoria

Family Violence Protection Act 2008 (Vic)

Family violence intervention order

Western Australia

Restraining Orders Act 1997 (WA)

Violence restraining order

In recent years, there has been continuing concern about the difficulties of protecting women and children from violence. Consequently, many jurisdictions have been fine-tuning, or even overhauling, legislation and implementing new [page 124]

processes to try to increase the protection afforded to victims. For example, New South Wales, Victoria and the Australian Capital Territory introduced new legislation in 2008, followed by South Australia in 2011 and Queensland in 2012;106 and in 2007, the Northern Territory increased penalties, introduced a presumption that applicant mothers with children in their care remain in the family home, allowed children to make applications on their own behalf and made it an offence (subject to there being a reasonable excuse) not to report reasonable suspicions of domestic violence.107 Further, New South Wales has piloted a Domestic Violence Intervention Court Model (DVICM), which shifts the onus away from victims laying complaints to police being obliged to arrest offenders and lay charges; Western Australia has introduced ‘on-the-spot’ police orders that assist police in providing immediate protection to victims of violence; and Victoria has introduced ‘safety notices’. The emerging feedback on these measures is mixed, with an evaluation of New South Wales’ DVICM showing limited evidence of success in court outcomes, no evidence of an upward trend in family violence reporting, and an increase in charge rates that was consistent with an overall increase in New South Wales.108 In a 2008 review of Tasmania’s domestic violence framework, 17 recommendations were made, all of which were accepted by the government.109

Relationship between Commonwealth and state or territory laws 3.23 A married person has the option of applying either for an injunction under the FLA or a protection order under state or territory laws. Pursuant to s 68B of the FLA, the family courts may grant an injunction to promote the welfare of the child. Such injunctions may relate to the personal protection of the child or

parent irrespective of whether the parents are married: see 3.16. As every student of constitutional law appreciates, where Commonwealth legislation covers the field, the operation of state law is normally precluded by virtue of s 109 of the Constitution. However, in the area of violence, the FLA exhibits a clear intention not to cover the field. Section 114AB(1) states that the remedies available under the Act are not intended to exclude or limit the operation of ‘prescribed’ laws of the states or territories which are capable of concurrent operation. The ‘prescribed’ laws are the protection order provisions outlined above. Moreover, s 114AB(2) [page 125] goes on to prohibit the institution of proceedings under the FLA once proceedings under state or territory law have been instituted by ‘a person … in respect of a matter’, but not vice versa. There is no bar on a person who has applied for an injunction under the FLA to subsequently apply for a protection order under the state or territory legislation. The effect is to make the state or territory legislation prevail once it is invoked. However, s 114AB does not prevent a person who has sought or obtained a protection order under state or territory legislation from seeking an injunction under the FLA in respect of matters not able to be dealt with under a protection order. This is because s 114AB(2) only prohibits applications for injunctions in respect of a ‘matter’ for which a protection order has been sought or obtained. There is also no formal prohibition against one party seeking an injunction under the FLA where a related party has already obtained an injunction under state or territory legislation. The constitutional validity of the state laws was confirmed in De Angelis v De Angelis,110 where the husband argued that the protection order provisions under the then relevant Victorian legislation111 were inconsistent with s 114 of the FLA, and therefore invalid. O’Bryan J held s 114 was not intended to cover

the field, nor was it inconsistent with the state legislation, as was evidenced by the very presence of s 114AB. We have observed on several occasions in the course of this chapter that the state/territory protection order is by far the more commonly invoked in practice. It does not seem, despite any expressed increase in sensitivity on the part of the Family Court of Australia, that this balance has been altered. According to Alexander, ‘[i]n most cases proceedings under the Family Law Act are a slower, more expensive and less effective remedy for women seeking protection in family violence cases’.112 Proceedings for an injunction under the FLA may still be pursued if proceedings for a protection order under state or territory law have been discontinued or dismissed, or if the protection order has been set aside or is no longer in force: s 114AB(2). 3.24 Following an agreement between state and territory Attorneys-General in 1992, a system of reciprocal enforcement of protection orders across state and territory boundaries was established by amendments to the then principal legislation. [page 126] Legislative steps have also been taken to ensure harmonisation between the terms of protection orders made under state and territory legislation, and parenting orders made under Pt VII of the FLA. The relevant provisions of the FLA are those contained in Div 11 of Pt VII. Section 68N states that the purpose of the Division is to resolve inconsistencies between family violence orders and orders that provide for a child to spend time with a person, and furthermore to ensure that such orders, injunctions or arrangements do not expose people to family violence: see also 8.111. The Family Court’s Best Practice Principles (see 3.11) provide considerable direction as to the matters judicial officers need to

consider when making parenting orders in situations where family violence is alleged. Protection orders and parenting orders may be directly or partially inconsistent. For example, a protection order may prohibit a person from coming within a specified distance of the other parent’s home, whereas the parenting order may direct that the child be collected and dropped off from that parent’s home. These orders are directly inconsistent. On the other hand, parenting orders may direct that the child spend time with a parent and protection orders may prohibit the parties communicating with one another, making compliance with the parenting order difficult due to them being partially inconsistent. The Family Court is required, to the extent that it is possible and consistent with the child’s best interests, to ensure that a parenting order is consistent with any family violence order and does not expose anyone to an unacceptable risk of family violence: s 60CG. See also 8.112. The relatively recently amended s 60CC(3)(k) directs the court, when assessing a child’s best interests, to have regard to any state or territory family violence order applying or that has applied to a child or a member of the child’s family (including an interim noncontested police issued order), and to give appropriate weight to the existence of such an order when making a parenting order: see 9.28ff. If a parenting order is made that is inconsistent with a family violence order, the reasons for so doing must be explained by the court, as must the purposes of the order and the obligations created by it, including the consequences of breaching the order: s 68P. Justice Nygh has commented that: Although failure to comply with these provisions does not invalidate the … order, the provision is clearly designed to discourage … [parenting] orders in conflict with a family violence order except in very special circumstances.113

The FLA permits parties to apply for a declaration that a protection order is inconsistent with a parenting order: s 68Q(2). If a protection order made under state or territory legislation is inconsistent with a parenting order made under the FLA, s 68Q(1)

provides that the parenting order will prevail over the protection order, thus potentially leaving a gap in protection. In practice, inconsistency is [page 127] often avoided with the state and territory orders providing for an exception to the protection order if communications or contact is authorised by a FLA order:114 see also 8.112 and 8.115. When a parenting order has been made under the FLA and a victim of family violence seeks a protection order, s 68R of the FLA gives the state and territory courts the power, when making or varying a protection order, to ‘revive, vary, discharge or suspend’ an existing parenting order dealing with the issue of with whom the child is to spend time. In other words, when making a protection order, the court can deal with ‘contact’ issues at the same time. As a parenting order will prevail over a state and territory protection order (s 68Q(1)), this section thus provides a mechanism for state and territory courts to amend a parenting order to avoid inconsistency between the state/territory and federal orders. These powers are limited to final family violence orders and cannot be used in proceedings for interim orders: s 68R(4). Furthermore, a court may only exercise its power under s 68R if it has material that was not before the court when the original parenting order was made: s 68R(3). In order to increase the awareness of the powers of the state and territory courts pursuant to s 68R, the ALRC Family Violence Report (see 3.2) recommended that all state and territory legislation be amended to specifically include an express reference to the powers under s 68R and that judicial officers should be required to consider these provisions.115 This has occurred in most jurisdictions.116 3.25

Another instance of inconsistency between federal and

state and territory legislation is the criteria for making parenting orders. Pursuant to the FLA, the best [page 128] interests of the child are the paramount consideration. However, when a state or territory court utilises s 68R to vary, discharge or suspend a parenting order, the state and territory courts must ‘be satisfied that it is appropriate to do so because a person has been exposed, or is likely to be exposed to family violence’: s 68R(5)(c). The authors of the ALRC Family Violence Report were of the opinion that the criteria for making the order should be the same irrespective of the court where the decision is made.117 Although some jurisdictions have provisions that give the safety, protection or wellbeing of children importance in decisions pertaining to protection orders,118 and many require that FLA orders must be taken into account in determining the terms and appropriateness of an intervention order,119 none mandate the paramount consideration to be the best interests of the child. See also 8.113–8.114. 3.26 The ALRC Family Violence Report recognised the benefits of empowering both the family courts and the children’s courts to make family violence protection orders. This issue emerges at the intersection of state and territory child protection law, state and territory family violence legislation and the FLA. The Report recommended that where the person seeking protection or the person against whom protection orders are sought is before the children’s courts, state and territory legislation should confer jurisdiction on the children’s courts to hear and determine applications for family violence protection orders in respect of that child, his or her siblings, other young persons in the same household and adults affected by the same circumstances: Recommendations 20-3 to 20-6. Furthermore, in order to enhance

the jurisdiction of the Family Court, the ALRC Family Violence Report recommended that an injunction for personal protection made pursuant to the FLA should mirror state and territory protection orders and that a breach of an injunction for personal protection should be regarded as a criminal offence: Recommendation 17-4; to date, this has not been implemented.

What constitutes child abuse? 3.27 Child abuse is an age-old, and persistent, problem. However, increasingly there is greater awareness of the issue. The accepted understanding of what constitutes abuse has also changed over time. While the term ‘child abuse’ was [page 129] originally used in the context of children who had been subjected to serious physical abuse,120 the need for a broader definition was widely acknowledged. The Royal Commission on Human Relationships in its 1978 report expressed the following views: 38. As a general principle, we believe that legal definitions of child abuse should focus on the child’s need for assessment and care, rather than any wilful desire on the part of the parents to inflict injury or to cause neglect. 39. Definitions should be broad enough to encompass all forms of abuse. At the same time, we recognise the dangers of subjective assessments of what constitutes abuse. Cultural and social values affect such assessments and what might be seen as neglect in one culture might be regarded quite differently in another.121

The Report also commented on the need to work towards greater uniformity of definition, noting that the failure to use common definitions contributes to our lack of knowledge about child abuse and makes statistical comparisons between

states/territories difficult. While there has been considerable progress towards developing a better understanding of what constitutes abuse since this report was released, there is still no single, uniformly accepted definition. The expanded definition in the FLA of abuse in relation to a child — which includes ‘assault, sexual abuse and exploitation, psychological harm and neglect’, and which was introduced by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) — has already been discussed: see 3.3; but child abuse is defined in different ways in different contexts. There is, however, considerable commonality between the definitions in use: they all focus on the physical or psychological damage caused to the child by the abusive behaviour of others, and generally include physical, emotional and sexual abuse.122 Additionally, there is the category of child neglect, although historically there was some debate as to whether this constitutes a form of abuse or whether it should be dealt with in a category of its own.123 Child neglect is characterised by the failure to provide for the child’s basic needs: it differs from other forms of abuse in that it involves an act or omission by a caregiver that jeopardises or impairs the [page 130] child’s physical, intellectual or emotional development.124 It is generally accepted now that neglect is a category of child abuse.125 3.28 One of the difficulties in arriving at a universally acceptable definition of child abuse stems from the continuing disagreement as to whether certain behaviour constitutes abuse. One particular area of disagreement concerns the use of physical punishment in child rearing.126 At common law, there is authority for the proposition that ‘reasonable chastisement’ does not constitute an assault,127 and in some jurisdictions this exception to the general

law of assault is founded on statute law.128 While there may be considerable support for the view that mild-to-moderate physical correction of children for disciplinary purposes is, in some circumstances, acceptable,129 the difficulty lies in determining where the line should be drawn between acceptable and unacceptable behaviour. It is argued that this difficulty is exacerbated in the absence of clear legislative guidance.130 In addition, there continue to be calls for totally banning all forms of physical punishment in child rearing.131 Many other jurisdictions around the world have adopted ‘anti-smacking’ laws, beginning with Sweden in 1978. The research evidence is unclear as to the impact on children of physical punishment, and of course a range of factors come into play, not least the severity and regularity [page 131] of punishment. However, it does seem clear that there is no evidentiary basis for claiming positive outcomes for physically disciplining children.132 Also relevant in this regard is the United Nations Convention on the Rights of the Child (CROC: see 3.6), which contains a number of provisions directed at protecting children from abuse, including provisions on corporal punishment: Art 28(2). The United Nations Committee on the Rights of the Child has stated that any form of corporal punishment is in breach of CROC.133 As a result, model criminal provisions developed by the Model Criminal Code Officers Committee have been adopted in New South Wales. Under s 61AA of the Crimes Act 1900 (NSW), there is now only a limited defence (to assaulting a child) of ‘lawful correction’ available to parents, or persons acting for parents. The section specifically requires that the physical force was reasonable having regard to both the age, health, maturity or other characteristics of the child, and the nature of the alleged misbehaviour or other circumstance. Further, the force is not to be

applied to the child’s head or neck or in a manner that is likely to cause harm for more than a short period. The goal is that only mild punishment will be exonerated. Tasmania’s Law Reform Institute has also reviewed this issue,134 recommending alternative proposals to reduce the uncertainty as to what forms of punishment are legally permissible. As yet, there has been no amendment to s 50 of the Criminal Code Act 1924 (Tas), which simply permits ‘reasonable’ correction. 3.29 Another source of particular concern involves the practice of female genital mutilation common in some cultures (particularly African), which also occurs in Australia. While there is widespread disapproval of the practice,135 efforts to bring it [page 132] to an end have been met with criticisms of ‘western culture imperialism’.136 Despite these tensions, in 1995 the Standing Committee of Attorneys-General supported the nationwide abolition of this practice by adopting targeted model Criminal Code offences, both for performing female genital mutilation and for removing a child from the jurisdiction with the intention of obtaining the procedure elsewhere. All states and territories have now implemented these provisions.137 These laws apply extraterritorially so as to protect Australian residents from being subjected to this practice overseas. A governmental review of these laws was undertaken to assess the effectiveness of the regulatory framework, with a report delivered in March 2013.138 Three areas of inconsistency were identified (penalties, age coverage and extraterritorial coverage), with consequent recommendations being made. The government has undertaken to implement the recommendations. For example, New South Wales has since amended its legislation to increase the

maximum penalty for performing female genital mutilation to 21 years.139 Of more concern, perhaps, was the Report’s finding that very few prosecutions had been secured, though this was as much a result of a failure to detect as the inability to secure a prosecution. Indeed, some health professionals noted that the low numbers were not consistent with what they were seeing in the affected communities. A recent media report stated (based on information obtained through freedom of information legislation) that reports of female genital mutilation to the police are almost non-existent; and yet a survey indicated that 10 per cent of surveyed paediatricians had seen girls who were victims of this practice.140 The Report referred to moves in the UK to help identify girls at risk, by identifying mothers who have been subjected to the practice.141 [page 133] This form of female child abuse is of great concern across the globe, and it would seem that criminalisation is but a first step in addressing the problem. It is generally accepted that education of the affected communities is crucial to changing behaviour.

Incidence, causes and effects of child abuse 3.30 As many occurrences of child abuse go unreported or undetected, official figures do not reflect the true incidence of abuse. It is beyond dispute that child abuse continues to be a pervasive social problem. For the first time in 10 years, the 2009– 10 and 2010–11 national statistics indicated a decrease in reports of suspected child abuse. The decline was attributed to the

significant decrease in notifications in New South Wales as a result of changes to the Children and Young Persons (Care and Protection) Act 1998 (NSW), which included raising the threshold for reporting from ‘risk of harm’ to the new ‘risk of significant harm’. However, figures for the following three years show notifications again increasing from year to year; in the most recent figures (for 2013–14), there were 37.8 notifications per 1000 children, an increase of 11.4 per cent from the previous year. For that 2013–14 year, 54,438 allegations of child abuse were substantiated. In four jurisdictions, emotional abuse was the most commonly substantiated form of abuse, and in four other jurisdictions neglect was most common. Nineteen per cent of substantiations were of physical harm and 14 per cent were of sexual abuse. Girls were twice as likely to be the victims of substantiated sexual abuse, while boys were typically more likely to suffer from other forms of abuse than girls. Aboriginal and Torres Strait Islander children were seven times more likely to be the victims of substantiated abuse.142 The government spent around $3.3 billion in the 2013–14 year on child protection and out-of-home care services, and this figure is increasing at a rate of 4.6 per cent per year.143 3.31 There has been much investigation into the causes of child abuse.144 Child abuse occurs across all socio-economic, religious and ethnic groups. It is not possible to identify any single causative factor. Moreover, different types of child abuse have different features; for example, circumstances surrounding the sexual abuse of children may be quite different from those surrounding cases of neglect or physical abuse.145 A number of matters, relating to both the individual [page 134] characteristics of the abuser (and in some cases, also the abused

child) and environmental factors, have been identified as high-risk factors. These include parents’ low tolerance to stress, low selfesteem, poor parenting skills, ill health, and unrealistic expectations regarding the child or children. There is strong evidence to suggest that parents who have themselves been abused as children are more likely to become abusive parents. A link has also been found between child maltreatment and substance abuse. Additionally, marital conflict and instability are linked with an increased risk of abuse. High-risk factors in relation to children include age (younger children, below three or four years of age, are more likely to be subjected to abuse, with children under one year of age the most susceptible group), low birth weight, ill health and disability, and developmental or behavioural problems. Environmental factors contributing to the risk of abuse include social isolation, poverty, unemployment and changes in family structure. On the basis of figures taken from studies of substantiated cases of abuse, parents were responsible in the majority of cases, with a significant proportion of cases also occurring at the hands of step-parents, de facto parents, foster parents and guardians, as well as siblings and other relatives. In the case of sexual abuse, the abuse is perpetrated by a wider circle of people. While both mothers and fathers engage in other forms of abuse (though not necessarily at the same rate), in the case of sexual abuse, perpetrators are overwhelmingly male.146 As the above summary suggests, different factors may be operative in relation to child sexual abuse,147 though despite many theories being advanced in this regard, the complexity of the matter seems to defy any simple explanation. The family therapy perspective, also known as a family dysfunction model, suggests that incest assists in maintaining an equilibrium, such that each family member has an interest in its continuation.148 Though widely accepted in some quarters at times, this theory — which depicts mothers in these families as having failed either, or both, the father abuser and the abused child — has attracted severe criticism. According to the feminist theoretical perspective,

child sexual abuse is concerned with power and is seen as part of the range of violence perpetrated by [page 135] men against women and children.149 Finkelhor’s work on sexual abuse150 is also frequently referred to; however, this focuses more on the preconditions to abuse occurring (and risk factors), which arguably goes more to how the abuse occurs, rather than providing a clear explanation as to why. A strong link has been found between family violence (which can in its own right be seen as a form of indirect child abuse)151 and child physical abuse.152 Similarly, with regard to child sexual abuse, there is a growing body of evidence to indicate that this form of abuse often occurs in the context of physical violence and coercion within the family.153 As Beven concludes: Child maltreatment occurs because of a complex mix of social and economic pressures as well as societal and legal attitudes regarding the place and role of children in the community.154

3.32 Whatever the cause, the effects which are well documented are the same regardless.155 The physical effects may be extremely serious, with many children sustaining severe physical injury, and tragically, in some cases, dying.156 Child abuse can also result in hearing and speech impairments, and impediments to cognitive, social and emotional development. Quite apart from the physical injury inflicted, which may have lasting consequences, victims of physical abuse often suffer long-term psychological and social problems which potentially impact on the wider community. These include depression and adjustment problems, and the inability to form meaningful relationships. [page 136]

A history of child abuse has been associated with youth homelessness, juvenile offending, drug and alcohol abuse, youth suicide and adult crime. Due to the cyclical nature of abuse, persons who have been victims of child abuse are more likely to become abusive parents. Significantly, there is evidence to suggest that children who are not direct victims of abuse, but experience abuse more indirectly through witnessing violence in the home, may suffer similar problems to children who are direct victims of abuse. They are at significant risk of developing emotional and behavioural problems such as low self-esteem, depression and anxiety, passivity, self-destructive and aggressive behaviour, and poor school performance.157 They are also at greater risk of substance abuse, criminal conduct and homelessness.158 Research suggests that victims of child sexual abuse are likely to experience certain effects specific to that form of abuse. It is a complex picture however. After reviewing the relevant literature, Cashmore and Shackel concluded: Childhood sexual abuse is associated with a broad array of adverse consequences for survivors throughout their lifetime. As a result of more rigorous research studies in this field our understanding of the impacts of childhood sexual abuse is becoming more nuanced and a robust body of research evidence now clearly demonstrates the link between child sexual abuse and a spectrum of adverse mental health, social, sexual, interpersonal and behavioural as well as physical health consequences. To date, the strongest links have been found between child sexual abuse and the presence of depression, alcohol and substance abuse, eating disorders for women survivors, and anxiety-related disorders for male survivors. An increased risk of re-victimisation of survivors has also been demonstrated consistently for both men and women survivors. Some more recent research has also revealed a link between child sexual abuse and personality, psychotic and schizophrenic disorders, as well as a heightened risk for suicide ideation and suicidal behaviour.159

Protecting children from abuse under state and territory legislation 3.33

The issue of child abuse may come before the courts in a

variety of ways. The alleged perpetrator may face prosecution in criminal proceedings in the state/ [page 137] territory courts. However, practically speaking, prosecutions are rare and are usually only brought in the most serious cases of physical abuse or neglect. As commentators have long pointed out,160 criminal law remedies are often seen as inappropriate because to impose fines or a term of imprisonment may, in fact, exacerbate the problems and dislocation of the family: see also the Royal Commission on Human Relationships: Final Report,161 where it was stated that ‘criminal sanctions are a poor way of preventing child abuse’. Even at the time of that report in 1978 it was noted that there has been a swing away from a punitive stance to one of protection of the child at risk, together with help for the family involved, rather than punishment or imprisonment.162 With regard to child sexual abuse, the very nature of the offence results in major evidentiary difficulties, particularly where the child is very young. In the absence of a confession, it is extraordinarily difficult to secure a conviction. However, where there is sufficient evidence of child sexual abuse, criminal proceedings would most likely result, in view of the gravity of the offence. 3.34 Alongside the available criminal law sanctions, steps may be taken under state and territory child welfare legislation for the removal of the child from the care of one or both of the parents where that is necessary for the protection of the child. However, this is a measure of last resort: where possible, other options are explored that avoid the need for state/territory authorities taking the child into care, as this is recognised as creating its own problems.

The existing legislation in the states and territories is as follows: Children and Young People Act 2008 (ACT); Children and Young Persons (Care and Protection) Act 1998 (NSW); Care and Protection of Children Act 2007 (NT); Child Protection Act 1999 (Qld); Children’s Protection Act 1993 (SA); Children, Young Persons and their Families Act 1997 (Tas); Children, Youth and Families Act 2005 (Vic); and Children and Community Services Act 2004 (WA). While the processes contained in the legislation are broadly similar, there are significant differences in the way the different jurisdictions deal with and report child protection issues. 3.35 In cases where the parents separate, questions of where the child will live, and who may spend time with the child, are governed by the FLA and, if necessary, [page 138] are ultimately determined by the family courts. The issue of actual or alleged child sexual abuse in the context of contested child proceedings in the family courts is dealt with in Chapter 9. In some cases, the safety of the child or children can be sufficiently assured if the non-abusive parent separates from the perpetrator of abuse. From a family law perspective, it is important to note that when a child protection department is determining whether there is a risk of harm to a child, it deals with the ‘present’ only and does not necessarily delve into whether harm has occurred in the past or whether a change in living arrangements would raise these concerns,163 whereas these issues are relevant in family law matters. In the words of Higgins and Kaspiew:164

The mandate of child protection authorities is to intervene to protect children only when a parent is neither willing nor able to protect the child from harm. In contrast, the task of the federal law system that deals with parenting disputes is to resolve disputes between separated parents over what arrangements are in the best interests of their children.165

Mandatory reporting under state and territory laws 3.36 The term ‘mandatory reporting’ refers to the statutory obligation imposed on certain groups of people to report certain types of child abuse to the relevant authorities. While this is the expression that is now generally used, it should be noted that preference has been expressed from some quarters for use of the term ‘notification’ rather than ‘reporting’,166 and that terminology does occasionally appear in the literature.167 The objective of mandatory reporting is the early identification of child abuse so that the child can be treated for any injuries and protected from further abuse. However, there has been considerable debate as to the appropriateness of mandatory reporting.168 [page 139] 3.37 In spite of this, legislative provision has been made for mandatory reporting in all Australian jurisdictions, but there are some notable differences in the exact requirements, in terms of both the categories of persons who must report (and the state of mind required to activate the obligation to report) and the types of abuse that must be reported.169 In the last edition of this book, we summarised the various laws in the different jurisdictions as at that time.170 In general, the state of mind required is that the person reporting must suspect, or believe, on reasonable grounds that the child is being subjected to the reportable harm. The

reportable harm varies from only suspected sexual abuse to anything that will cause significant psychological, emotional or physical harm to the child. In some jurisdictions, the obligation to report applies to all persons; in many jurisdictions there is a list of occupations nominated, but those lists vary considerably, from the narrow to the very broad. The people most likely to be required to report are, not surprisingly, those most likely to acquire this information through their dealings with children: teachers, police, nurses and doctors. An overview of the different requirements in the various jurisdictions can be found in the Child Family Community Australia resource sheet Mandatory Reporting of Child Abuse and Neglect.171

Mandatory reporting under the FLA 3.38 Mandatory reporting requirements also exist under the FLA, applying to court personnel and other specified persons who become aware of abuse or ill-treatment in the course of carrying out their duties, performing their functions, or exercising powers under the Act: s 67ZA(1). Pursuant to s 67ZA(1) and (2) of the FLA, a member of the court personnel, a family consultant, counsellor, family dispute resolution practitioner, arbitrator, or a lawyer independently representing a child’s interests, must, if he or she ‘has reasonable grounds for suspecting that a child has been abused, or is at risk of being abused … as soon as practicable, notify a prescribed child welfare authority [defined in s 4(1)] of his or her suspicion and the basis of the suspicion’. However, there is no obligation to notify if the person knows that the authority has been previously notified about the abuse or risk of [page 140] abuse: s 67ZA(4). Higgins and Kaspiew172 point out that while there is mandatory reporting under the FLA, resource limitations

of the child protection authorities restrain their ability to respond to all notifications. Furthermore, while allegations might be regarded as serious in the family law context, the state protection agencies may be unable to prioritise them over other notifications. 3.39 While the statutory obligation to report is limited to these serious forms of abuse defined in s 4(1), persons specified under the FLA have a discretion to notify a prescribed child welfare authority of other forms of abuse. Section 67ZA(3) states that: If the person has reasonable grounds for suspecting that a child: (a) has been ill treated, or is at risk of being ill treated; or (b) has been exposed or subjected, or is at risk of being exposed or subjected, to behaviour which psychologically harms the child; the person may notify a prescribed child welfare authority of his or her suspicion and the basis for the suspicion.

The Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) inserted a new note at the end of s 67ZA(3), the purpose of which is to clarify that where a person is authorised to report suspicions under s 67ZA(3) they are not excused from their mandatory reporting obligations under s 67ZA(2).173 In the event of a notification under s 67ZA (or under s 67Z(3), dealing with the Registry Manager’s duty to notify where a party has filed a notice alleging child abuse), the person may make such disclosures of other information as the person reasonably believes are necessary to enable the authority to properly manage the matter that is the subject of the notification: s 67ZA(6). Section 67ZB goes on to make it clear that the duty or discretion to disclose under s 67Z or s 67ZA exists, despite ‘any obligation of confidentiality imposed on the person by [the FLA], another Act, another law or anything else (including a contract or professional ethics)’. Importantly, persons making disclosure pursuant to the statutory obligation to notify are given immunity from liability in civil or criminal proceedings, and are not to be considered to have breached any professional ethics: s 67ZB(2). Similarly, where a

person, in the exercise of their discretion, makes notification under the Act of suspected ill-treatment or exposure to behaviour that psychologically harms the child, that person is immune from liability in civil or criminal proceedings as well as any breach of professional ethics, provided that the notification was made in good faith: s 67ZB(3). [page 141] 3.40 The relationship between s 67ZB and another provision of the FLA, then s 19N, was considered in Re W & W: Abuse Allegations; Expert Evidence.174 The latter section rendered inadmissible things said, or admissions made, to specified family counsellors and mediators in a meeting/conference when they were acting in that capacity. Allegations of sexual abuse had been made against the father by both the mother and a child. On appeal, the state welfare department sought to intervene and to tender into evidence an affidavit of a court counsellor. It was said that the father had made admissions of inappropriate sexual behaviour to the counsellor, but the child representative had not tendered this evidence, believing it inadmissible under s 19N. The department argued that s 67ZB(4) rendered the evidence admissible. It was held the evidence was inadmissible, and that the provisions of s 67ZB did not change this fact. This decision confirms that the intent here was to permit notification of abuse, not to make public the content of otherwise privileged communications. To overcome the effect of this decision, however, s 19N was amended in 2004,175 with the result that admissions by an adult that a child may have been physically or sexually abused (or was at risk of such abuse) and disclosures by children of such abuse were admissible, unless the court considered there was sufficient other evidence of the admission or disclosure. Section 19N was repealed in the 2006 amendments and replaced with s 10E (family

counsellors) and s 10J (dispute resolution practitioners), which are in similar terms: see 2.59ff. No such provision is required in the case of family consultants, as all communications with them are admissible: s 11C. 3.41 In conjunction with the introduction of the mandatory reporting provisions in 1991, amendments were made to the FLA with regard to rights of intervention in child abuse cases. Section 92A specifies that in proceedings where it has been alleged that a child has been abused or is at risk of being abused, certain persons are entitled to intervene, including a prescribed child welfare authority: s 92A(2)(d). Where such intervention occurs, the person is thereby taken to be a party to the proceedings, unless the court orders otherwise: s 92A(3). 3.42 Reference should also be made to s 91B (see 3.47–3.48), which enables the court, in any proceedings under the Act that affect or may affect the welfare of a child, to request the intervention in the proceedings of a child welfare officer from the relevant state or territory. Since the introduction of the 1991 amendments, protocols have been developed between the Family Court and the relevant welfare authorities to improve coordination and cooperation in the handling of child abuse matters. Clearly, investigation of allegations of abuse is beyond the legislative mandate of the Family Court, and the court therefore relies on the state and territory [page 142] agencies to undertake appropriate and timely investigations where allegations of abuse are made.176

State intervention for the protection of a child 3.43 In some circumstances, state intervention in the family is necessary in order to ensure adequate protection of a child. This may entail the removal of the child from the family in the face of parental opposition. Once the problem of child abuse has been identified, the case may progress in a number of ways: services to address the problem may be provided to the family by way of family therapy or counselling. Where there is cooperation from the perpetrator of the abuse, the child may be permitted to remain with their family, but subject to continuing supervision by the relevant department. In other cases, an agreement may be reached between the department and the family pursuant to which the child is placed in foster care or the abuser leaves the family home. Court applications for care and protection are usually only taken as a last resort.177 Some jurisdictions go further; for example, in New South Wales one of the ‘principles’ of intervention is that children will only be removed where it is necessary to protect the child from ‘the risk of serious harm’.178 In all Australian jurisdictions, care and protection applications are generally dealt with by the Children’s Court of the state or territory. The child welfare legislation in each of the jurisdictions makes provision for state intervention and removal of the child in certain circumstances.179 3.44 The legislation is generally framed on the basis that state intervention is justified if the child is in need of protection (or in some jurisdictions, if the child is ‘at risk’).180 Although there are differences in the specified grounds for [page 143]

intervention, by and large the provisions are drawn broadly so that any danger of significant harm, however caused, is covered (though in some jurisdictions ‘harm’ is not technically required to be ‘significant’). One important change to the provisions in New South Wales has the effect of requiring the Children’s Court to admit and consider evidence that a parent has previously had a child permanently removed from their care or has been named as involved in causing a reviewable death of a child. Such evidence now raises a rebuttable presumption that this is evidence of the child (who is the subject of the current care application) being in need of care and protection. The parent may rebut this presumption on the balance of probabilities: s 106A. The purpose of this provision is to overcome evidentiary obstacles that might arise with considering such evidence; this provision, rather than providing a separate basis for taking a child into care, simply ensures that the relevant evidence is considered and given the appropriate weight.181 There has been considerable concern in recent in years about the way care and protection proceedings are handled. This has resulted in various reviews of the legislation and systems in place in the different Australian jurisdictions. For example, at 3.5 we referred to the Cummins Report, a report on child protection that made 90 recommendations and suggested significant need for reform in the area of child protection.182 As a result of that report and the subsequent reviews that it generated, the Victorian legislation was amended in 2014 (with these amendments coming into effect in March 2016, to be reviewed within six months thereof),183 and there is a further amendment being considered.184 It is not possible in a book such as this to outline in detail all of the various care and protection provisions in the different jurisdictions, and so reference should be made to the relevant legislation for further details. There are a number of possible orders or dispositions available in the care and protection system, with some variations in law and

practice between jurisdictions. Possible orders include: supervision orders, where the child remains with their family under the supervision of the relevant state or territory department; orders [page 144] for the placement of the child with relatives or other appropriate people; and orders for guardianship (or parental responsibility) to the minister or department or (in some jurisdictions) to an individual. Children placed under the care of the minister or department have historically been referred to as ‘wards of the state’. The shift in terminology in the FLA away from the terms ‘custody’ and ‘guardianship’ has led gradually to corresponding changes in the terminology used in legislation governing care and protection. For example, the Western Australian and Northern Territory legislation refers to children being ‘in the CEO’s care’ (ie the care of the chief executive officer of the relevant department).185 In most jurisdictions, legislation is framed so as to ensure that a child is not removed from the care of their parents without appropriate justification. This approach is in accordance with Art 9 of CROC (see 3.6). In the majority of cases, children under care and protection orders who are removed from their families are placed in home-based care, either in a foster situation or with family or someone known to them.186 In most cases where a child has been removed from the care of their parents, the ultimate objective is to endeavour to work towards having the parents resume full responsibility for their child. Thus, alternative care arrangements are generally kept under review and, where possible, without compromising the safety of the child, efforts are made to reunite the child with their parents. Research data has shown that ‘most children who are placed in out-of-home care are eventually reunited with their families’.187

Child protection: the relationship between the Commonwealth and state and territory laws 3.45 The FLA and the state and territory legislation ‘both enable courts to make orders regulating and displacing parental responsibility for children’.188 The mere fact that parents separate does not automatically indicate that abuse and/or violence ceases; and as we have documented above, allegations of family violence are common in family court parenting disputes. It is therefore common for child [page 145] protection concerns to be raised in the context of parenting disputes. There is also a greater recognition of the link between child abuse and parental separation. When families separate, issues of child protection may arise in the Family Court in cases where it is alleged that a child will be exposed to a risk of sexual abuse or family violence when spending time with the other parent. In the context of allegations of sexual abuse of a child by a parent, and in order to determine whether a child should be permitted to spend time with such a person, the High Court developed the ‘unacceptable risk’ test in M & M:189 see 9.103ff, where this ‘test’ is discussed in detail. This test is invariably applied to cases where sexual abuse of a child is alleged, and though not always used in this context, is also commonly applied where family violence is claimed. In essence, the test mandates (somewhat self-evidently) that a parenting order should not be made where it would expose a child to an ‘unacceptable risk’ of abuse. As discussed at 9.103ff, determining the risk of abuse is not necessarily straightforward, particularly in

cases of alleged sexual abuse, because it may be difficult to establish whether the alleged past abuse occurred (and this is very often an important consideration in determining future risk). The task for the decision-maker becomes somewhat easier where the alleged past abuse is clearly established. Child protection issues may also arise where abuse takes the form of neglect and/or the general inability to parent.190 Such behaviour may have existed prior to separation and may have prevailed in conjunction with alleged sexual abuse and/ or family violence. One or both parties may be arguing that this history is relevant to post-separation arrangements. A third area where child protection issues may be relevant is where there is a dispute before the Family Court regarding living arrangements for a child, and the court is of the opinion that none of the parties before the court are suitable caregivers: see, for example, Secretary of the Department of Health & Human Services v Ray191 at 3.48. Likewise, where there is a parenting dispute between parties who are involved in proceedings in the Children’s Court, the limited jurisdiction of the Children’s Court means that parties may be obliged to initiate proceedings in the Family Court.192 To resolve the issue of proceedings in multiple jurisdictions, the ALRC Family Violence Report recommended that the FLA be amended to allow that in child protection proceedings, the Children’s Courts should have the same power as that given to the Magistrates’ Courts to make decisions in relation to children (Recommendation 19-4); however, this recommendation has not been implemented. 3.46 While child protection issues may arise during the course of a family law parenting dispute, child protection proceedings are brought under state [page 146]

and territory legislation in the Children’s Court to determine whether a child is in need of care and/or protection. As the Commonwealth Parliament does not have legislative power in respect of child protection issues, the making of orders under child welfare legislation has the effect of limiting the Family Court’s jurisdiction. The ALRC Family Violence Report identified two gaps in the relationship between the family law courts and the child protection agencies that may put children — and, for that matter, adults — at risk.193 The first gap is what the Report termed an ‘investigatory gap’, which arises because the family courts lack mechanisms to conduct independent investigations into allegations of family violence and abuse that arise in parenting disputes. The family courts are reliant on the parties, independent children’s lawyers, family consultants and importantly state and territory child protection authorities to provide them with the necessary information to make decisions regarding children who are at risk. In this context, the Report recommended that the provision of investigatory and reporting services to the family courts be strengthened by creating mechanisms for the child protection services to provide these services: Recommendation 191. The ALRC Family Violence Report also recommended that the state and territory protection agencies develop protocols for dealing with requests for documents and information under the FLA and for responding to subpoenas issued by the family courts: Recommendation 30-5. The second gap is a ‘jurisdictional gap’ that occurs when the family courts are faced with allegations of violence and abuse, and consider that none of the parties to the parenting dispute is a viable or protective carer. The court may consider that an order should be made granting parental responsibility to the child protection authority. However, the family courts do not have the statutory power to make such an order.194 Conversely, proceedings may commence in the Children’s Court but then be referred to the Family Court. This may occur when the child protection agency identifies a viable carer, and advises the carer to apply to the

Family Court for a parenting order. The gap arises when the orders envisaged by the agency are not made in the Family Court because the carer failed to commence proceedings in the Family Court, or because the applicant was not able to provide sufficient evidence of violence.195 The ALRC Family Violence Report recommended that the child protection agencies should provide greater support for Family Court litigants with child protection concerns: Recommendation 19-3. [page 147] Shortly after the release of the ALRC Family Violence Report, the National Justice Chief Executive Officers’ Group (the NJCEO) approved a plan to develop national initiatives with the goal of improving collaboration between federal family courts and child welfare authorities. Considerable work has resulted from this initiative. The Commonwealth Attorney-General’s Department released an Options Paper in December 2011, Improving the Interface between the Child Protection Systems and the Family Law System. The 15 recommendations from this paper did not require any legislative amendment. One recommendation related to the creation of a national best practice framework for information sharing between the federal family courts and the child welfare authorities, and this was taken a step further through consideration of the issue in a report by Professor Chisholm delivered in March 2013: Information-sharing in Family Law and Child Protection: Enhancing Collaboration.196 This report made recommendations that could be implemented within the current legislative-framework, but also recommended legislative change that would both remove barriers to, and positively encourage, information-sharing. Following on from that report, in March 2014 Prof Chisholm delivered a further, related, report, The Sharing of Experts’ Reports between the Child Protection System and the Family

Law System,197 and a number of state/territory-based initiatives have been developed to improve collaboration.198 3.47 Section 69ZK of the FLA generally precludes the Family Court from making an order in relation to a child who is under the care of a person under a child welfare law as defined in the FLA: s 4. There are exceptions to this rule: where at the time the order is expressed to come into effect the child ceases to be under that care, or where a child welfare officer of the relevant state or territory has given written consent for the institution or continuation of those proceedings: see s 69ZK(1)(a) and (b). Just because in many cases the court could make a parenting order designed to take effect when the care and protection order ends, this does not mean that the court must consider any such application in detail. A judge is entitled to take the view that it is not appropriate at the time to consider the making of a future order and dismiss the parenting application on the basis of the existing care and protection order.199 In the absence of orders under child welfare legislation, and where proceedings are pending in the Family Court, the court may request the intervention of a child welfare officer: s 91B.200 Where such intervention occurs, the officer becomes a party to the proceedings: s 91B(2)(b). However, such intervention does not prevent [page 148] state or territory welfare authorities from obtaining an order under child welfare legislation, thereby ousting the jurisdiction of the Family Court.201 3.48 In Secretary of the Department of Health & Human Services v Ray,202 the Full Court of the Family Court (Bryant CJ, Finn and Ryan JJ) confirmed that the Secretary of the Child Welfare

Department cannot be compelled to intervene in family law proceedings. Furthermore, the jurisdiction of the family courts extends only to those with parental responsibility or those willing to accept it. Thus while a parenting order may be made in favour of the secretary of the child welfare department, it can only be done with their consent. The case concerned two children, aged 15 and nine. There was some suggestion that these children may have been at risk of abuse and harm. Benjamin J at first instance was concerned that none of the parties was a suitable candidate for parental responsibility and made a request pursuant to s 91B of the FLA that the Secretary intervene in proceedings. The Secretary did not wish to intervene in proceedings and refused to consent to an order for parental responsibility. After hearing argument, Benjamin J ordered that the Secretary be joined as a party to the proceedings. The Secretary appealed this decision and the appeal was upheld. The Full Court confirmed that, without the Secretary’s consent, such an order could not be made. While acknowledging the dilemma that confronted Benjamin J, the members of the Full Court were adamant that ‘it is not for a federal court to instruct the Secretary as how he should prioritise the use of his resources or exercise his State powers’.203 The Full Court acknowledged ‘the need for continuing attempts to harmonise in some way the administration of State and Federal laws concerning the welfare of children’.204 3.49 One possible option for resolving the fragmentation issue, which has been canvassed for some time, is for the jurisdiction over care and protection of children to be transferred from the state and territory Children’s Courts to the Family Court of Australia.205 Thus, in place of the existing situation, where the Family Court is precluded from making orders in respect of children who come within child welfare legislation (s 69ZK), the Family Court would have exclusive jurisdiction in respect of care and protection matters. Various factors have been advanced in

support of this proposal, including the status of the Family Court as a specialist court dealing with children’s issues and the already wide-ranging juridiction of [page 149] the court, encompassing also welfare and parens patriae jurisdictions, which are consistent with state and territory care and protection jurisdictions. While such a proposal may have considerable merit in principle, it may, in practice, be difficult to achieve as it would depend on the referral by the states to the Commonwealth of their powers in respect of child welfare matters. Referral of powers by the states in the area of family law has been achieved in the past with the major referral of powers in respect of ex-nuptial children (pursuant to which child welfare matters were notably excluded) and, more recently, de facto relationships, but in neither instance was it an easy process, and in fact on both occasions not all states participated in the original referral of power: for discussion of referral of power, see 4.89–4.92. 3.50 There has also been an increasing focus on the problems experienced by children interacting with both state/territory welfare jurisdictions and the family courts.206 The obvious issue is that the same families may be involved in more than one jurisdiction. The Family Law Council has previously supported amendments that would enable the court before which a matter arises to deal with all related parenting disputes together with child welfare/protection issues, thus avoiding duplicated proceedings and conflicting decisions.207 However, the specific recommendations in that report met with some opposition208 and relied to some extent on cross-vesting, which has since proved to be a very limited option. In 1997, the ALRC addressed the issue as part of its review of children in the legal process,209 saying:

The lack of co-ordination between the family law and care and protection jurisdictions and between the care and protection systems of each State and Territory was raised as a source of serious concern during the Inquiry. There was wide agreement that the current jurisdictional arrangements fail to serve the interests of many children in the family law and care and protection systems and may add to their disadvantage and distress.210

3.51 The Family Law Council revisited the issue in 2002 when it published its report on Family Law and Child Protection,211 which recommended that the Federal [page 150] Government establish a national child protection service: Recommendations 1 and 2. It noted that cases involving child abuse are the core business of the Family Court, but that state and territory authorities often do not investigate these cases as the Family Court is seen to be in a position to safeguard the child through the making of appropriate parenting orders. However, once in the Family Court, there is no independent investigation of any abuse allegation. The Council recommended that a national Child Protection Service be established with the objectives of investigating child courts, avoiding systems abuse and duplication of decision-making, and promoting cooperation between state and federal agencies: Recommendation 3. In December 2003, the House Standing Committee on Family and Community Affairs delivered its report on child custody arrangements212 and noted the Council’s recommendations, but preferred increased resourcing of services and nationally consistent child protection laws. However, it agreed that a ‘one-court’ principle should be investigated; that is, that separating families should be able to resolve all issues in one court.213 This led to the announcement by the present federal government of a ‘national child protection framework’ which will be fast-tracked, with the goal of improving information sharing and detection of child abuse. In its 2009 report Improving Responses to Family Violence in the

Family Law System: An Advice on the Intersection of Family Violence and Family Law Issues, the Family Law Council recommended (Recommendation 7) that there be a: … referral of powers to Federal Family Courts so that in determining a parenting application, these family courts have concurrent jurisdiction with the State Courts to deal with all matters in relation to children.

Further, the ALRC Family Violence Report specifically recommended that there be a limited reference of powers to enable the courts to make orders giving parental rights and duties to a child protection agency where there is no other viable and protective carer for a child. This report also recommended that the family courts have the power to join a child protection agency as a party in this limited class of cases: Recommendation 19-2.214 3.52 While s 69ZK of the FLA sets express limits on the jurisdiction of the family courts where a child is under state care and protection, in circumstances falling outside those express limits the question has arisen as to whether the family courts may, in the course of contested child proceedings, require the disclosure of information held by the relevant state or territory welfare department, [page 151] notwithstanding the confidentiality provisions contained in state or territory care and protection legislation. In child-related proceedings, s 69ZW allows the family courts to make an order requiring a state or territory agency to provide the court with documents and information relating to notifications of suspected abuse of a child or suspected family violence relating to a child. In Re Z (No 2),215 a majority of the Full Court (on a case stated) held, among other things, that s 97(3) of the Community Welfare Act 1983 (NT), the provision which at that time dealt with the confidentiality of information,216 was inconsistent with the best

interests of the child principle contained in the FLA and was therefore inoperative to the extent of the inconsistency. Their Honours held that although it was important for child protection systems to maintain confidentiality, the protection was not absolute and the Family Court should not be precluded from obtaining information held by child welfare authorities in appropriate cases, as to do so would operate as a significant inhibition on the discharge of the court’s statutory functions in cases involving allegations of child abuse or ill-treatment. The Northern Territory Government, which had intervened in the Full Court hearing, appealed this decision to the High Court: Northern Territory v GPAO.217 A majority of the High Court (Kirby J dissenting) overturned the Full Court’s decision, finding there to be no inconsistency between s 65E (now s 60CA) and the territory law protecting confidentiality. Gaudron J said: It is correct to say that the ‘paramountcy principle’ … permeates the whole of Part VII of the Act. But, so far as concerns s 65E of the Act, its significance is, in terms, confined to ‘deciding whether to make a particular parenting order’. It does not apply to the conduct of proceedings for the making of such an order or the procedures to be observed in relation to those proceedings. The question whether a person who is not a party to proceedings is or may be made subject to the court’s powers to compel the production of documents is, essentially, a question of procedure. And on that issue, s 65E of the Act has nothing to say.218

For further discussion of the case, see 8.66. 3.53 The 2011 reforms to the FLA inserted a number of amendments regarding the obligations to provide the Family Court with information regarding the risk of abuse to a child. The obligations are stricter for those who are parties to the proceedings than those who are not. Parties to the proceedings are obliged to notify the court if a child who is the subject of the proceedings, or a member of the child’s family, is under the care of a person under a child welfare law: s 60CH. This provision operates subject to s 69ZK. Likewise, parties to the proceedings [page 152]

are obliged to disclose to the court whether the child, or another child who is a member of the child’s family, has been the subject of a notification or report to a child welfare authority or an investigation, inquiry or assessment by a child welfare authority: s 60CI. Under both sections, people who are not parties to the proceedings may provide such information to the court, but are not obliged to do so. A failure to provide the court with this information will not affect the validity of such orders. These sections were introduced to provide information to assist the Family Court in making decisions regarding children who are under a care order, or the subject of investigation or assessment by a child welfare authority.219

Other strategies 3.54 Cases where child abuse is alleged present particular problems for the Family Court, not least of which is the danger that the child will suffer further trauma as a consequence of the legal proceedings. It has been known since the late 1990s that child abuse is core business of the Family Court and the court has not necessarily dealt with the issue well.220 In particular, the adversarial nature of the court system has been highlighted as being poorly suited to the complexities of these cases, resulting in lengthy proceedings that further traumatised the children, were very costly, and commonly had inconclusive results.221 Difficulties have also arisen from problems managing the various organisations typically involved in abuse cases. In response, the Family Court developed and trialled a special program for managing parenting disputes where child abuse is alleged, called Project Magellan. Project Magellan was first run in Victoria, in the Melbourne and Dandenong Registries of the Family Court, in 1998 and 2000. Residence and contact disputes

involving allegations of serious sexual or physical child abuse were selected for the trial. Key features of the Magellan management process included: (a) a child-focused approach with state-funded child representation in all cases; (b) tight judicial management, with four clear stages and a fixedtime program; and (c) a multidisciplinary approach, with close liaison between the court and outside services.222 [page 153] The final stage of the project was its evaluation, which provided very positive results: levels of child distress were reduced; parent satisfaction was generally higher, with a ‘feeling of being heard’ consistently expressed; dispute resolution time was faster; fewer cases proceeded to a final trial; there was a greater finality of orders/outcomes; and the average cost per case decreased.223 Following this success, Magellan was implemented nationally. A further review has concluded that, while there is room for improvement, overall, Magellan provides a successful case management process for these cases.224 Section 67ZBB (which substantially replaces s 60K) complements the operation of Magellan, by helping to identify the relevant cases. Given the expanded definitions of family violence and abuse now found in the FLA, it has been suggested that the Magellan

program ought to be expanded to cover a broader range of cases.225 It is also notable that while Magellan has been reviewed from a case management point of view, there has been no evaluation of outcomes on children who cases are managed via the Magellan program. Section 67Z provides that where an interested person alleges that a child to whom the proceedings relate has been abused or is at risk of abuse, a notice must be filed in the prescribed form. Similarly, s 67ZBA provides that where allegations of family violence or the risk of family violence are relevant to the making of a parenting order, an interested person must file a notice in the prescribed form. When a notice is filed alleging abuse or the risk of abuse of a child, or family violence or the risk of such violence (ss 67Z(2) and 67ZBA(2)), s 67ZBB places an obligation on the court to take ‘prompt action’ in relation to the allegations of child abuse or family violence and to ensure that the matter is dealt with as expeditiously as possible.226 To this end, the court must, as soon as practicable and [page 154] preferably within eight weeks after the notice is filed, consider what interim orders should be made to obtain the required evidence and to protect the child or any of the parties to the proceedings. The kind of orders that the court may consider making are an order for the appointment of an independent children’s lawyer, an order to obtain documents or information from a state or territory agency (s 69ZW), or an injunction under s 68B. Western Australia, which has its own state family court, has adopted its own solution to this particular issue. In 2001, the Family Court of Western Australia implemented a trial program

called the Columbus Pilot. Recognising that even where a child is not directly involved, domestic violence is a form of child abuse, Columbus targeted not only cases involving allegations of direct child abuse, but also those where there was family violence that was a risk to children.227 Columbus opted for an interdisciplinary management system, placing a Family Court counsellor alongside a registrar to jointly manage the selected cases. The process involved a series of case conferences but, unlike Project Magellan, there was no predetermined number. While cases were still tightly managed to reduce the length of the overall process, the aim was not just to resolve immediate issues, but also to address underlying issues, with the goal of achieving ‘durable, safe outcomes for parents and their children’.228 Children were given legal representation and conference proceedings were privileged. The results of Columbus were also highly successful, with children, parents and legal representatives reporting high levels of satisfaction.229 This pilot has led to the implementation in July 2004 of a Case Assessment Conference Model. Now, in all but the most urgent parenting cases, the first court event is a preliminary conference run by a family consultant. The aim of this conference is to provide an early intervention in parenting disputes so that the management of the particular case can be considered, any risk of abuse assessed and opportunities for resolution by agreement explored. All cases then proceed to a case assessment hearing (before a magistrate or judge, as the case may be), which is a procedural hearing that may progress the matter, provide the opportunity for consent orders to be made, and so on. Where a risk of abuse is [page 155] identified, the matter will be case-managed by a judge (the ‘judge track’) in a way similar to the Columbus Pilot.230

3.55 It is often said that a society can be judged by how it treats its children. It is clear there remains much to be done; as a society we need to ensure that we are doing all that we can to protect our young and support the families in which they grow up. Legislative change is but one part of the puzzle; much depends on how ‘the system’ operates in practice. Perhaps the greatest legal challenge remains the jurisdictional problems arising from having so many ‘systems’ in place in Australia. However, legal responses alone are not sufficient to combat the widespread and insidious phenomenon of violence within families; violence is a pervasive problem and until there is a cultural shift away from violence more generally, it is hard to see how dramatic improvements will be achieved. 1.

See H Rhoades, C Frew and S Swain, ‘Recognition of Violence in the Australian Family Law System: A Long Journey’ (2010) 24 Australian Journal of Family Law 296 for a historical overview of the responses of the Australian federal family law system to family violence.

2.

D Higgins and R Kaspiew, ‘Child Protection and Family Law … Joining the Dots’ (2011) National Child Protection Clearinghouse Issues 34, available at https://aifs.gov.au (accessed 6 March 2016). I Wolcott and J Hughes, Towards Understanding the Reasons for Divorce, Working Paper No 20, AIFC, 1999, p 8.

3. 4. 5. 6.

7.

G Sheehan and B Smyth, ‘Spousal Violence and Post Separation Financial Outcomes’ (2000) 14(2) Australian Journal of Family Law 102. L Moloney et al, Allegations of Family Violence and Child Abuse in Family Law Children’s Proceedings, Research Report No 15, AIFC, 2007, [5.2.1]. T Brown et al, Violence in Families Report Number One: The Management of Child Abuse Allegations in Custody and Access Disputes Before the Family Court of Australia, Family Violence and Family Court Research Program, Department of Social Work, Monash University, Clayton and Department of Social Work, Australian Catholic University, Canberra, 1998; T Brown et al, Resolving Family Violence to Children: The Evaluation of Project Magellan, a Pilot Project for Managing Family Court Residence and Contact Disputes Where Allegations of Child Abuse Have Been Made, Report No 3, Family Violence and Family Court Research Program, Monash University, 2001. J Dewar and S Parker, Parenting Planning and Partnership: The Impact of the New Part VII of the Family Law Act of 1975, Working Paper No 3, Family Law Research Unit, Griffith University, 1999; H Rhoades et al, The Family Law Reform Act, 1995: The First Three Years, University of Sydney and Family Court of Australia, 2000; R Kaspiew, ‘Violence in Contested Children’s Cases: An Empirical Exploration’ (2005) 19 Australian Journal of Family Law 112.

8.

B Fehlberg et al, Australian Family Law: The Contemporary Context, 2nd ed, Oxford University Press, South Melbourne, 2015, p 148 and see the references cited therein.

9.

C Banks et al, ‘Review of the Exposure Draft of Family Law Amendment (Shared Parental Responsibility) Bill 2005’ (2005) 19 Australian Journal of Family Law 79. K Wilcox, ‘Connecting Systems, Protecting Victims: Towards Vertical Coordination of Australia’s Response to Domestic and Family Violence’ (2010) 33 University of New South Wales Law Journal 1013 at 1022.

10.

11. 12. 13.

14. 15.

16.

R Kaspiew et al, Evaluation of the 2006 Family Law Reforms, AIFS and the Australian Government, Commonwealth of Australia, 2009. Ibid, p 26. Family Law Council, Improving Responses to Family Violence in the Family Law System: An Advice on the Intersection of Family Violence and Family Law Issues, Family Violence Committee, Family Law Council, Attorney-General’s Department, Commonwealth of Australia, 2009. R Chisholm, Family Courts Violence Review: A Report by Professor Richard Chisholm AM, Commonwealth of Australia, 2009. Australian Law Reform Commission (ALRC) and New South Wales Law Reform Commission (NSWLRC), Family Violence: A National Legal Response: Final Report, ALRC Report No 114/NSWLRC Report No 128, Commonwealth of Australia, 2010. National Council to Reduce Violence against Women and their Children, Time for Action: The National Council’s Plan for Australia to Reduce Violence against Women and their Children 2009–21, 2009.

17. 18.

Ibid, p 120. Ibid, p v; KPMG, The Cost of Violence against Women and their Children, 2009, prepared for the National Council.

19.

ALRC and NSWLRC, Family Violence: Improving Legal Frameworks, Consultation Paper Summary, ALRC CPS 1/NSWLRC CPS 9, Commonwealth of Australia, 2010, p 3. ALRC, Family Violence and Commonwealth Laws: Improving Legal Frameworks, Report No 117, Commonwealth of Australia, February 2012.

20. 21.

22.

I Katz et al, Shared Care Parenting Arrangements Since the 2006 Family Law Reforms, Social Policy Research Centre, University of New South Wales, Commonwealth of Australia, 2010; J McIntosh et al, Post Separation Parenting Arrangements and Developmental Outcomes for Infants and Children: Collected Reports, Family Transitions, 2010. Available at www.ag.gov.au/inquiries/family-violence/implementation (accessed 15 February 2016).

23. 24.

For a discussion of this requirement, see Nawaqaliva & Marshall (2006) FLC ¶93-296. The term ‘family member’ in s 4AB includes the child who is the subject of the proceedings: Bant & Clayton [2015] FamCAFC 222.

25. 26.

See, for example, Faden & Faden [2014] FamCA 1182. [2015] FamCA 1124 at [34].

27.

R Kaspiew et al, Evaluation of the 2012 Family Violence Amendments: Synthesis Report, AIFS, October 2015, https://aifs.gov.au/publications/evaluation-2012-family-violen-

28. 29. 30. 31.

ce-amendments (accessed 15 February 2016). The findings from the Inquest into the Death of Luke Geoffrey Batty are available at www.coronerscourt.vic.gov.au (accessed 15 February 2016). Family Court Bulletin, Issue 17, December 2015, available at www.familycourt.gov.au (accessed 15 February 2016). For further details, see www.avertfamilyviolence.com.au (accessed 15 February 2016). See www.familylawdoors.com.au (accessed 15 February 2016).

32. 33.

For details, see www.rcfv.com.au (accessed 15 February 2016). ‘Not Now — Not Ever’: Putting an End to Domestic and Family Violence in Queensland, available at www.qld.gov.au (accessed 15 February 2016).

34. 35.

See further, www.qld.gov.au (accessed 15 February 2016). Family Law Council, Interim Report to the Attorney-General, In Response to the First Two Terms of Reference on Families with Complex Needs and the Intersection with Family Law and Child Protection Systems, June 2015, p 95, available at www.ag.gov.au (accessed 15 February 2016).

36.

Commonwealth Attorney-General and the Minister Assisting the Prime Minister for Women, ‘National Family Violence Bench Book’, Joint Media Release, 9 June 2015, available at www.attorneygeneral.gov.au (accessed 15 February 2015). Available at www.dpmc.gov.au/taskforces/reducing-violence-women (accessed 15 February 2016).

37. 38. 39. 40.

41. 42. 43.

Senate Finance and Public Administration References Committee, Domestic Violence in Australia, August 2015, available at www.aph.gov.au (accessed 15 February 2016). Details available at www.aph.gov.au (accessed 15 February 2016). Prime Minister’s Office, ‘Women’s Safety Package to Stop the Violence’, Media Release, 24 September 2015, available at www.malcolmturnbull.com.au (accessed 15 February 2016). Available at www.dpmc.gov.au (accessed 15 February 2016). Available at www.coag.gov.au/taskforces/reducing-violence-women (accessed 15 February 2016). National Committee on Violence, Violence: Directions for Change, Australian Institute of Criminology, Canberra, 1990.

44. 45.

See https://aifs.gov.au (accessed 16 February 2016). Commonwealth of Australia, Protecting Children Is Everyone’s Business: National Framework for Protecting Australia’s Children 2009–20, 2009.

46. 47.

Available at www.childprotectioninquiry.nt.gov.au (accessed 2 March 2016). Available at www.dpc.nsw.gov.au/publications/news/stories/?a=33796 (accessed 2 March 2016).

48. 49.

Available at www.keepthemsafe.nsw.gov.au (accessed 2 March 2016). R Cassells et al, Keep Them Safe Outcomes Evaluation: Final Report, New South Wales Department of Premier and Cabinet, Sydney, 2014, available at www.keepthemsafe.nsw.gov.au (accessed 16 February 2016).

50.

Victorian Law Reform Commission, Protection Applications in the Children’s Court, Final Report 19, Victorian Government Printer, Melbourne, 2010, available at www.lawreform.vic.gov.au (accessed 2 March 2016).

51. 52.

Available at www.childprotectioninquiry.vic.gov.au (accessed 2 March 2016). For a discussion of the implementation of the recommendations from the Cummins Report, see Legal and Social Issues Committee, Parliament of Victoria, Inquiry into the Children, Youth and Families Amendment (Restrictions on the Making of Protection Orders) Bill 2015, August 2015, available at www.parliament.vic.gov.au (accessed 16 February 2016).

53.

Taking Responsibility: A Roadmap for Queensland Child Protection, available at www.childpretectioninquiry.qld.gov.au (accessed 25 February 2016). Queensland Government Response to the Queensland Child Protection Commission of Inquiry Final Report, December 2013, available at www.communities.qld.gov.au (accessed 25 February 2016).

54.

55. 56.

For further information, see www.justice.qld.gov.au (accessed 25 February 2016). Explanatory Memorandum, Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011 (Cth), House of Representatives, 2011, p 6.

57.

See the obiter comment of the Full Court in Langmeil & Grange [2013] FamCAFC 31 at [25]. [2013] FamCAFC 110 at [134].

58. 59. 60.

M Rayner, ‘Home Truths’ (1995) 5 Eureka Street 16 at 17. Australian Human Rights Commission, Children’s Rights Report 2015, 2015, www.humanrights.gov.au/our-work/childrens-rights/publications/childrens-rights-report-2015 (accessed 9 February 2016).

61.

M Mitchell, Children’s Commissioner, Launch of Children’s Rights Report 2015, 7 December 2015, www.humanrights.gov.au/news/speeches/launch-childrens-rights-report-2015 (accessed 9 February 2016). Australian Human Rights Commission, Children’s Rights Report 2015, 2015, www.humanrights.gov.au/our-work/childrens-rights/publications/childrens-rights-report-2015 (accessed 9 February 2016).

62.

63. 64. 65.

66.

S Peel and R Croucher, ‘Mind(ing) the Gap: Law Reform Recommendations Responding to Child Protection in a Federal System’ (2011) Family Matters 21 at 23. See, for example, Property (Relationships) Act 1984 (NSW) s 53. Seminara & Ferguson (1993) 16 Fam LR 410. De facto relationship legislation in Western Australia also provides injunctive relief similar to the FLA: see Family Court Act 1997 (WA) Pt 11. Leibinger & Leibinger (No 2) (1986) 11 Fam LR 33; FLC ¶91-775.

67. 68.

A Nicholson CJ, ‘Foreword’ (1995) 9 Australian Journal of Family Law 1 at 1. See R Alexander, Domestic Violence in Australia: The Legal Response, 3rd ed, Federation Press, Leichhardt, 2002, Ch 3.

69.

See, for example, Report of the Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act, AGPS, Canberra, 1992, Ch 7; Australian Law Reform Commission (ALRC), Report No 69, Part I, Equality Before the

70. 71. 72.

Law: Justice for Women, AGPS, Canberra, 1994, [9.72]–[9.75]. Explanatory Memorandum, Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011 (Cth), House of Representatives, 2011, p 1. See Chief Justice A Nicholson, ‘Foreword’ (1995) 9 Australian Journal of Family Law 4.

73.

See, for example, Family Court of Australia, ‘Chief Justice Bryant Calls for Crucial Funding of Family Law Courts to Address Family Violence’, Media Release, 10 October 2015, available at www.familycourt.gov.au (accessed 6 March 2016). See www.familycourt.gov.au (accessed 2 March 2016).

74. 75.

Ibid. Available at www.familylawsection.org.au (accessed 2 March 2016).

76. 77.

Marriage of Kemsley (1984) 10 Fam LR 125 at 130; FLC ¶91-567. (2008) FLC ¶93-365.

78. 79.

Seminara v Ferguson (1993) 16 Fam LR 410. English & English (1986) 10 Fam LR 808; FLC ¶91-729.

80. 81.

See, for example, O’Dea & O’Dea (1980) 6 Fam LR 675; FLC ¶90-896. Fedele & Fedele (1986) 10 Fam LR 1069 at 1075; FLC ¶91-744; see also Davis & Davis (1976) 1 Fam LR 11,522; FLC ¶90-062; Jolly & Jolly (1978) FLC ¶90-458; Page & Page (1980) 6 Fam LR 669; (1981) FLC ¶91-025; Briers & Briers (1978) FLC ¶90-483; O’Dea &O’Dea (1980) 6 Fam LR 675; FLC ¶90-896; Davis & Davis (1982) 8 Fam LR 975; FLC ¶91-319.

82. 83.

(1983) 8 Fam LR 975; FLC ¶91-319 at 75,309. R Alexander, ‘Domestic Violence’, Subtitle 17.5, The Laws of Australia, Law Book Co, Sydney, [980].

84. 85.

See FLA s 114(1)(b), (2A)(b); Marriage of Merryman (1994) FLC ¶92-497. Gillespie v Bahrin (1993) 16 Fam LR 642; (1992) FLC ¶92-388.

86. 87.

(2010) 44 Fam LR 486; FLC ¶93-446. (2001) 27 Fam LR 615; (2001) FLC ¶93-074.

88.

See KN & SD & Department of Immigration & Multicultural & Indigenous Affairs (2003) 30 Fam LR 394; FLC ¶93-148; Bennett & Bennett (2001) 28 Fam LR 231; FLC ¶93-088. See, for example, Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 7(1)(b); Family Violence Protection Act 2008 (Vic) ss 5(1)(b), 8(1)(d)–(e).

89. 90. 91.

(1984) 10 Fam LR 125; FLC ¶91-567. See also R Alexander, ‘Domestic Violence’, Subtitle 17.5, The Laws of Australia, [59] for further discussion of this point.

92.

93.

See Report of the Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act, AGPS, Canberra, 1992, [7.120]–[7.133], Recommendations 50–5 and 58–9; Australian Law Reform Commission Report No 69, Part I: Equality Before the Law: Justice for Women, 1994, [9.72]. See R Alexander, ‘Domestic Violence’, Subtitle 17.5, The Laws of Australia, [990].

94.

Cauchi & Cauchi (1994) FLC ¶92-447.

95.

See Pts XIIIA, XIIIB.

96. 97.

See ss 112AD, 112AP. Report of the Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act, AGPS, Canberra, 1992, [7.110.1] and Recommendations 58, 59; Australian Law Reform Commission (ALRC), Report No 69, Part I: Equality Before the Law: Justice For Women, AGPS, Canberra, 1994, [9.74].

98. 99.

(1992) 15 Fam LR 545; FLC ¶92-303. (1992) 15 Fam LR 545 at 554–5.

100. (1995) 19 Fam LR 649; FLC ¶92-638. 101. (2002) 29 Fam LR 195; FLC ¶93-107. 102. Mead & Mead (2006) FLC ¶93-267. This decision was appealed to the High Court, but only on the question of whether one of the elements was, in fact, proved to this standard: Mead & Mead (2007) 36 Fam LR 806; FLC ¶93-327. 103. See R Alexander, ‘Domestic Violence’, Subtitle 17.5, The Laws of Australia, [1120]. 104. For a good overview of the legislation in the various states and territories, see A Harland et al, Family Law Principles, Lawbook Co, NSW, 2011, Ch 6. 105. Family Violence Protection Act 2008 (Vic) s 7. 106. For further details about the Queensland legislation, see www.communities.qld.gov.au (accessed 15 February 2015). 107. Domestic and Family Violence Act 2007 (NT) s 124A. 108. New South Wales Bureau of Crime Statistics and Research Evaluation, available at www.bocsar.nsw.gov.au (accessed 15 February 2016). 109. See the Tasmanian Government’s Safe Homes, Safe Families: Tasmania’s Family Violence Action Plan 2015–2020, available at www.safeathome.tas.gov.au (accessed 15 February 2016). 110. (2000) 27 Fam LR 133; (2001) FLC ¶93-067. For a discussion of the relationship between Family Court orders and terms imposed as a condition of bail (and therefore, not under ‘prescribed’ laws), see Dunne & P (No 2) (2004) 32 Fam LR 441; FLC ¶93-205. 111. Crimes (Family Violence) Act 1987 (Vic). 112. R Alexander, ‘Women and Domestic Violence’ in P Easteal (ed), Women and the Law in Australia, LexisNexis Butterworths, Sydney, 2010, pp 152, 172. 113. P Nygh, ‘The New Part VII: An Overview’ (1996) 10 Australian Journal of Family Law 4 at 10. 114. For a discussion on the interaction between the FLA and state and territory protection orders, see generally J Faulks, ‘Condemn the Fault and Not the Actor? Family Violence: How the Family Court of Australia Can Deal with the Fault and the Perpetrators’ (2010) 33 University of New South Wales Law Journal 818. 115. Australian Law Reform Commission (ALRC) and New South Wales Law Reform Commission (NSWLRC), Family Violence: A National Legal Response: Final Report, ALRC Report No 114/NSWLRC Report No 128, Commonwealth of Australia, 2010, Recommendation 16-1.

Jurisdictions with direct reference to s 68R of the FLA: Domestic and Violence 116. Protection Act 2012 (Qld) ss 76, 78; Intervention Orders (Prevention of Abuse) Act 2009 (SA) ss 10(2), 16(1); Family Violence Protection Act 2008 (Vic) ss 89, 90. Jurisdictions that reference FLA orders generally and require that FLA orders must be considered when making a protection order: Family Violence Act 2004 (Tas) ss 18, 33; Domestic and Family Violence Act 2007 (NT) ss 19(2)(a), 90; Restraining Order Act 1997 (WA) ss 5, 13, 65, 66; Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 42(3)(b). Note that the Family Violence Act 2004 (Tas) s 33 requires protection orders to operate subject to any FLA order, and the Restraining Order Act 1997 (WA) s 65 prohibits a court from making a restraining order that conflicts with an FLA order if no jurisdiction exists to adjust the FLA order (thus indirectly referencing the operation of s 68R). 117. Australian Law Reform Commission (ALRC) and New South Wales Law Reform Commission (NSWLRC), Family Violence: A National Legal Response: Final Report, ALRC Report No 114/NSWLRC Report No 128, Commonwealth of Australia, 2010, [16.97]. 118. See, for example, Family Violence Act 2004 (Tas) s 18; Restraining Order Act 1997 (WA) s 12; Family Violence Protection Act 2008 (Vic) s 80. 119. See, for example, Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 10(2) (a),(b); Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 42(3)(b). 120. See the Royal Commission on Human Relationships, Final Report, AGPS, Canberra, 1978, vol 4, p 160. 121. Ibid, p 161. 122. See M James, ‘Child Abuse and Neglect’ (1994) 37 Family Matters 80. For further discussion of what constitutes child abuse, see R Price-Robertson and L Bromfield, What is Child Abuse and Neglect?, National Child Protection Clearinghouse, Resource Sheet Number 6, AIFS, Melbourne, 2009. 123. See A Tomison, ‘Spotlight on Child Neglect’ (1995) 4 Issues in Child Abuse Prevention 1; M James, ‘Child Abuse and Neglect’ (1994) 37 Family Matters 80. 124. See M James, ibid. 125. Australian Institute of Health and Welfare (AIHW), A Picture of Australia’s Children, AIHW, Canberra, 2005, p 56; R Price-Robertson and L Bromfield, What is Child Abuse and Neglect?, National Child Protection Clearinghouse, Resource Sheet Number 6, AIFS, Melbourne, 2009; World Health Organization, Preventing Child Maltreatment: A Guide to Taking Action and Generating Evidence, Geneva, 2006. 126. See P Holzer and A Lamont, Corporal Punishment: Key Issues, National Child Protection Clearinghouse Resource Sheet Number 19, AIFS, Melbourne, 2010. 127. See, for example, R v Terry [1955] VLR 114. 128. See, for example, Criminal Code 1913 (WA) s 257; Criminal Code Act 1924 (Tas) s 50. For a recent summary of the issues and law relating to corporal punishment, see AIFS, Corporal Punishment — Key Issues, Child Family Community Australia Resource Sheet, March 2014, available at https://aifs.gov.au (accessed 15 February 2016). 129. See the Australian Government’s position set out in Australia’s Combined Second and

Third Reports under the Convention on the Rights of the Child, Attorney-General’s Department, Canberra, 2003, [185]. 130. See generally, J Cashmore and N de Hass, Legal and Social Aspects of the Physical Punishment of Children: A Discussion Paper Commissioned by the Commonwealth Department of Human Services under the Auspices of the National Child Protection Council, AGPS, Canberra, 2005. 131. See Royal Children’s Hospital, Policy Brief No 20, 2010, available at www.rch.org.au (accessed 20 May 2012); B Saunders and C Goddard, Physical Punishment in Childhood. The Rights of the Child, Wiley, Chichester, 2010. 132. Child Family Community Resource Sheet, Corporal Punishment: Key Issues, March 2014, available at www.aifs.gov.au (accessed 18 February 2016). 133. Committee on the Rights of the Child, The Right of the Child to Protection from Corporal Punishment and Other Cruel or Degrading Forms of Punishment, 2007, available at www2.ohchr.org (accessed 20 May 2012). For a discussion, see R Ludbrook, ‘The Child’s Right to Bodily Integrity’ (1995) 7 Current Issues in Criminal Justice 124; P Holzer and A Lamont, Corporal Punishment: Key Issues, National Child Protection Clearinghouse Resource Sheet No 19, AIFS, Melbourne, 2010; M Straus, ‘Prevalence, Societal Causes, and Trends in Corporal Punishment by Parents in World Perspective’ (2010) 73 Law and Contemporary Problems 1. For a comment on international moves in this area, see B Phillips and P Alderson, ‘Beyond AntiSmacking: A Series of Updates’ (2004) 38 Australian Children’s Rights News 14. 134. Tasmanian Law Reform Institute, Final Report No 4, Physical Punishment of Children, University of Tasmania, Hobart, 2003. 135. See, for example, World Health Organization, Female Genital Mutilation, Fact Sheet, 2012, available at www.who.int (accessed 21 May 2012) and the recommendations of the Family Law Council of Australia in its 1994 report, Female Genital Mutilation: A Report to the Attorney-General, AGPS, Canberra, 1994. 136. See A Funder, ‘Culture a Lethal Cloak: Female Genital Mutilation in Australia’ (1995) 3 The Crossexaminer 16; L Manderson, ‘Local Rites and Body Politics: Tensions between Cultural Diversity and Human Rights’ (2004) 6(2) International Feminist Journal of Politics 285. 137. Crimes Act 1900 (ACT) Pt 4; Crimes Act 1900 (NSW) s 45; Criminal Code Act 1983 (NT) Pt VI Div 4A; Criminal Code Act 1899 (Qld) ss 323A, 323B; Criminal Law Consolidation Act 1935 (SA) Pt 3 Div 8; Criminal Code Act 1924 (Tas) ss 178A, 178B; Crimes Act 1958 (Vic) ss 32–34A; Criminal Code Act Compilation Act 1913 (WA) s 306. 138. Review of Australia’s Female Genital Mutilation Legal Framework: Final Report, Attorney-General’s Department, Commonwealth of Australia, available at www.ag.gov.au (accessed 14 February 2016). 139. Crimes Act 1900 (NSW) s 45. 140. See P Ferrari, ‘Female Genital Mutilation: We Must Save Australian Girls from this Cruelty’, The Drum, 22 September 2015, www.abc.net.au/news/2015-09-22/ferrari-fgm-in-australia/6794278 (accessed 14 February 2016). 141. For more information, see the UK Government’s response to the Second Report from the Home Affairs Select Committee Session 2014–15, HC 201, Female Genital

Mutilation: The Case for a National Action Plan, December 2014, available at www.gov.uk (accessed 14 February 2016). 142. Child Family Community Resource Sheet, Child Abuse and Neglect Statistics, AIFS, July 2015, available at www.aifs.gov.au (accessed 15 February 2016). 143. Child Family Community Resource Sheet, The Economic Costs of Child Abuse and Neglect, AIFS, December 2015, available at www.aifs.gov.au (accessed 18 February 2016). 144. See M James, ‘Child Abuse and Neglect’ (1994) 37 Family Matters 80 at 82–3. 145. Ibid at 82; Victorian Department of Human Services, ‘What is Child Abuse?’, available at www.dhs.vic.gov.au (accessed 21 May 2012). 146. For further details, see Child Family Community Australia, Who Abuses Children?, CFCA Resource Sheet, September 2014, available at www.aifs.gov.au (accessed 18 February 2016). 147. See R Oates, ‘Understanding Child Sexual Abuse’ (1990) 67 Current Affairs Bulletin 21; Child Sexual Abuse: Understanding and Responding: For Professionals Working with Children Who Have Experienced Sexual Abuse, Office for Children, Victorian Government Department of Human Services, Melbourne, 2009. 148. K O’Hagan, Working with Child Sexual Abuse: A Post Cleveland Guide to Effective Principles and Practice, Open University Press, Milton Keynes and Philadelphia, 1989, pp 22–9. 149. See A Tomison, ‘Exploring Family Violence: Links between Child Maltreatment and Domestic Violence’ (2000) 13 Issues in Child Abuse Prevention. See also Child Sexual Abuse: Understanding and Responding: For Professionals Working with Children Who Have Experienced Sexual Abuse, Office for Children, Victorian Government Department of Human Services, Melbourne, 2009. 150. D Finkelhor, Child Sexual Abuse: New Theory and Research, The Free Press, New York, 1984. 151. See M James, ‘Domestic Violence as a Form of Child Abuse: Identification and Prevention’ (1994) 2 Issues in Child Abuse Prevention. 152. See A Tomison, ‘Exploring Family Violence: Links between Child Maltreatment and Domestic Violence’ (2000) 13 Issues in Child Abuse Prevention. 153. See A Tomison, ‘Update on Child Sexual Abuse’ (1995) 5 Issues in Child Abuse Prevention. 154. J Beven, ‘Child Maltreatment’ in G Monahan and L Young, Children and the Law in Australia, LexisNexis Butterworths, Sydney, 2008, p 107. 155. On this issue generally, see Child Family Community Australia, ‘Effects of Child Abuse and Neglect for Children and Adolescents’, CFCA Resource Sheet, January 2014; Child Family Community Australia, Effects of Child Abuse and Neglect for Adult Survivors, CFCA Resource Sheet, January 2014, both available at www.aifs.gov.au (accessed 18 February 2016). 156. Child Family Community Australia, Child Deaths from Abuse and Neglect, CFCA Resource Sheet, August 2014, available at www.aifs.gov.au (accessed 15 February 2016). 157. See Australian Law Reform Commission (ALRC), Report No 69, Part I: Equality Before

the Law: Justice for Women, AGPS, Canberra, 1994, [9.16]. See also A Lamont, Effects of Child Abuse and Neglect for Children and Adolescents, National Child Protection Clearinghouse Resource Sheet, AIFS, Melbourne, 2010. 158. M James, ‘Child Abuse and Neglect’ (1994) 37 Family Matters 80 at 84. 159. J Cashmore and R Shackel, The Long-term Effects of Childhood Sex Abuse, Child Family Community Australia Paper No 11, January 2013, available at www.aifs.gov.au (accessed 25 February 2016). 160. See, for example, H Gamble, Law for Parents and Children, 2nd ed, Law Book Co, Sydney, 1986, p 108. 161. Royal Commission on Human Relationships: Final Report, AGPS, Canberra, 1978, [235]. 162. Ibid, [234]. 163. D Higgins and R Kaspiew, ‘Child Protection and Family Law Joining the Dots’ (2011) NCPC Issues 6. 164. Ibid. 165. D Higgins and R Kaspiew, ‘Mind the Gap … Protecting Children in Family Law Cases’ (2008) 22 Australian Journal of Family Law 235 at 244. 166. For a discussion, see the Royal Commission on Human Relationships Final Report, AGPS, Canberra, 1978, [243]. 167. See, for example, A Carment, ‘Mandatory Notification of Child Abuse and Neglect’ (1990) 25 Australian Journal of Social Issues 15; S Bird, ‘Mandatory Notification of Child Abuse: When to Report?’ (2005) 34 Australian Family Physician 779. 168. See, for example, F Ainsworth, ‘Mandatory Reporting of Child Abuse and Neglect: Does it Really Make a Difference?’ (2002) 7 Child and Family Social Work 57; J Cashmore, ‘Mandatory Reporting: Is It the Culprit? Where Is the Evidence?’ (2002) 4 Developing Practice 9; C Humphreys, ‘Problems in the System of Mandatory Reporting of Children Living with Domestic Violence’ (2008) 14 Journal of Family Studies 228. 169. Children and Young People Act 2008 (ACT) s 356; Children and Young Person’s (Care and Protection) Act 1998 (NSW) ss 23, 27; Care and Protection of Children Act (2007) (NT) ss 15, 16, 26; Child Protection Act 1999 (Qld) Ch 2 Pt 1AA; Education (General Provisions) Act (Qld) 2006 ss 364, 365, 365A, 366, 366A; Children’s Protection Act 1999 (SA) Chapter 2 Pt 1AA; Children, Young Persons and their Families Act 1997 (Tas) ss 3, 4, 14; Children, Youth and Families Act 2005 (Vic) ss 182(1)(a)–(e), 184, 162(c)–(d); Children and Community Services Act 2004 (WA) ss 124A, 124B; Family Court Act 1997 (WA) ss 5, 160. 170. L Young et al, Family Law in Australia, 8th ed, LexisNexis Butterworths, Sydney, 2013, [3.35ff]. 171. August 2014, available at www.aifs.gov.au (accessed 18 February 2016). 172. D Higgins and R Kaspiew, ‘Child Protection and Family Law … Joining the Dots’ (2011) NCPC Issues 6. 173. Explanatory Memorandum, Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011 (Cth), House of Representatives, 2011, p 11. 174. (2001) 28 Fam LR 45; FLC ¶93-085.

175. See Family Law Amendment Act 2003 (Cth). 176. See also the Report of the Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act, Family Law Act 1975: Aspects of its Operation and Interpretation, 1992, p 142. 177. Australian Institute of Health and Welfare (AIHW), Child Protection Australia 2006– 07, Child Welfare Series No 43, AIHW, Canberra, 2008, p 4. This is also reflected in the relevant legislation; for example, Children and Community Services Act 2004 (WA) s 9(a), (b), (f). 178. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 36(1)(c). 179. Children and Young People Act 2008 (ACT) Chs 10–19; Children and Young Persons (Care and Protection) Act 1998 (NSW) Chs 4, 5; Care and Protection of Children Act 2007 (NT) Ch 2; Child Protection Act 1999 (Qld) Ch 2; Children’s Protection Act 1993 (SA) Pt 5; Children, Young Persons and Their Families Act 1997 (Tas) Pt 5; Children Youth and Families Act 2005 (Vic) Ch 4; Children and Community Services Act 2004 (WA) Pt 4. 180. For a summary, see Child Family Community Australia, Australian Legal Definitions: When is a Child in Need of Protection?, CFCA Resource Sheet, August 2014, available at www.aifs.gov.au (accessed 18 February 2016). 181. Re Henry; JL v Secretary, Department of Family and Community Services [2015] NSWCA 89; SB v Parramatta Children’s Court [2007] NSWSC 1297. 182. P Cummins, D Scott and B Scales, Parliament of Victoria, Protecting Victoria’s Vulnerable Children Inquiry Report, 2012, available at www.childprotectioninquiry.vic.gov.au (accessed 2 March 2016). 183. Children, Youth and Families Amendment (Permanent Care and Other Matters) Act 2014 (Vic). 184. Children, Youth and Families Amendment (Restrictions on the Making of Protection Orders) Bill 2015 (Vic). For a discussion of the implementation of the recommendations from the Cummins Report: see Legal and Social Issues Committee, Parliament of Victoria, Inquiry into the Children, Youth and Families Amendment (Restrictions on the Making of Protection Orders) Bill 2015, August 2015, available at www.parliament.vic.gov.au (accessed 16 February 2016). 185. Children and Community Services Act 2004 (WA) s 30; Care and Protection of Children Act 2007 (NT) s 67; cf Children’s Protection Act 1993 (SA) s 43, which still refers to guardianship. To determine the impact that a protection order has on parental responsibility, regard should be had to the state and territory legislation. 186. See Australian Institute of Health and Welfare (AIHW), Child Protection Australia 2006–07, Child Welfare Series No 43, AIHW, Canberra, 2010–11, p 32. 187. Ibid, p 51, citing A Forwood and MA Carver, ‘The Reunification of South Australian Children with their Families: Case Characteristics and Outcomes Preliminary Findings’, Proceedings from the 7th Australian Conference on Child Abuse and Neglect, Promaco Conventions, Western Australia, 1999, p 740. 188. Australian Law Reform Commission (ALRC) and New South Wales Law Reform Commission (NSWLRC), Family Violence: A National Legal Response Final Report, ALRC Report No 114/ NSWLRC Report No 128, Commonwealth of Australia, 2010,

[19.46]. 189. (1988) 166 CLR 69. 190. See, for example, Akston & Boyle (2010) FLC ¶93-436. 191. (2010) 45 Fam LR 1; FLC ¶93-457. 192. See generally, T Altobelli, ‘Family Violence and Parenting: Future Directions in Practice’ (2009) 23 Australian Journal of Family Law 194. 193. For a general discussion on the fragmented family law system, see H Astor and R Croucher, ‘Fractured Families, Fragmented Responsibilities Responding to Family Violence in a Federal System’ (2010) 33 University of New South Wales Law Journal 854. 194. Australian Law Reform Commission (ALRC) and New South Wales Law Reform Commission (NSWLRC), Family Violence: A National Legal Response Final Report, ALRC Report No 114/NSWLRC Report No 128, Commonwealth of Australia, 2010, [19.79]. 195. S Peel and R Croucher, ‘Mind(ing) the Gap: Law Reform Recommendations Responding to Child Protection in a Federal System’ (2011) 89 Family Matters 21 at 27. 196. Available at www.ag.gov.au (accessed 19 February 2016). 197. Ibid. 198. Pages 47–8. 199. Ford & Ford & Department of Child Safety (2007) FLC ¶93-337. 200. If officers of a state or territory child welfare agency intervene in proceedings following a request by the court and act in good faith, s 117(4A) provides immunity from orders for or security for costs. 201. H Gibbs, ‘The Law and Child Abuse’ (1992) 24 Australian Journal of Family Law 3 at 4. 202. (2010) 45 Fam LR 1; FLC ¶93-457. 203. (2010) 45 Fam LR 1 at [83]. 204. Ibid at [96]. For a discussion on this decision, see B Fehlberg, ‘Parenting Disputes and Child Protection Laws’ (2011) 25 Australian Journal of Family Law 157. 205. See Australian Law Reform Commission and Human Rights and Equal Opportunity Commission, Issues Paper 18, Speaking for Ourselves: Children and the Legal Process, 1996, [7.64]. 206. For a discussion of the issues, see F Kelly and B Fehlberg, ‘Jurisdictional Overlaps between the Family Division of the Children’s Court and the Family Court of Australia’ (2000) 14 Australian Journal of Family Law 211. 207. Family Law Council, Child Sexual Abuse, AGPS, Canberra, 1988, pp 30–1. 208. See, for example, the views of Chief Justice Nicholson, set out in a paper delivered to the Australian Psychological Society International Conference, ‘Domestic Violence and Child Abuse — The Professional’s Professional Problem’, 10 September 1988. 209. Australian Law Reform Commission (ALRC), Report No 84, Seen and Heard: Priority

for Children in the Legal Process, AGPS, Canberra, 1997. 210. Ibid, [15.2]. 211. Family Law Council, Family Law and Child Protection, AGPS, Canberra, 2002. 212. House of Representatives Standing Committee on Family and Community Affairs, Every Picture Tells a Story: Report on the Inquiry into Child Custody Arrangements in the Event of Family Separation, 2003, [4.26]. 213. See Family Law Council, Family Law and Child Protection, AGPS, Canberra, 2002, Recommendation 13. 214. See also Recommendation 19-3. 215. (1996) 20 Fam LR 743; FLC ¶92-694. 216. This Act was replaced by the Care and Protection of Children Act 2007 (NT) on 8 December 2008. The new confidentiality provision is found in s 308. 217. (1999) 24 Fam LR 253; 161 ALR 318; FLC ¶92-838. 218. (1999) 24 Fam LR 253 at [139]. 219. Explanatory Memorandum, Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011 (Cth), House of Representatives, 2011, p 9. 220. See, for example, Australian Law Reform Commission (ALRC), Report No 84, Seen and Heard: Priority for Children in the Legal Process, AGPS, Canberra, 1997, Chs 15, 16. 221. T Brown, ‘Project Magellan’, Paper presented at the Child Sexual Abuse: Justice Response or Alternative Resolution Conference convened by the Australian Institute of Criminology, Adelaide, 2003, p 2. 222. See ibid for further details. 223. Ibid, pp 7–8. 224. D Higgins, Cooperation and Coordination: An Evaluation of the Family Court of Australia’s Magellan Case-management Model, Family Court of Australia and AIFS, Canberra, 2007. 225. Australian Human Rights Commission, Children’s Rights Report 2015, 2015, Recommendation 10, www.humanrights.gov.au/our-work/childrens-rights/publications/childrens-rights-report-2015 (accessed 9 February 2016). 226. Note that under ss 67Z and 67BA, if ‘an interested person’ — which includes a party and an independent children’s lawyer to any proceedings under the FLA — alleges a child has been abused or is at risk of abuse or there has been family violence or a risk of family violence, then they must file a Form 4 ‘Notice of Child Abuse or Family Violence’. Rule 2.04E of the Family Law Rules 2004 (Cth) was introduced to supplement s 67ZBB to capture situations where proceedings were instituted before 7 June 2012, and a party to the proceedings alleges that there has been or there is a risk of family violence by one of the parties to the proceedings, and the party making the allegation has not previously filed a Form 4. In addition, if the alleged or risk of violence or abuse involves a child, the Registry Manager must notify a child welfare authority. 227. P Murphy and L Pike, Evaluation of the Columbus Pilot in the Family Court of Western Australia: Final Report, Report prepared for the Family Court of Western Australia

and School of Psychology, Edith Cowan University, Perth, 2005. 228. Ibid, p 1. 229. Ibid, pp 2–4. 230. For a more detailed description of the Case Assessment Conference Model, see P Murphy, L Pike and P Kerin, ‘Developing the Case Assessment Conference Model in the Family Court of Western Australia: Breaking Down the Firewall’ (2005) 11 Journal of Family Studies 111.

[page 156]

4 CONSTITUTIONAL POWERS AND THE FAMILY COURTS ___________________________

Introduction 4.1 This chapter considers the power conferred by the Australian Constitution on the Commonwealth Parliament to legislate for family law in Australia. The first part of the chapter examines the constitutional powers that underpin the Family Law Act 1975 (Cth) (FLA) and the Marriage Act 1961 (Cth) (Marriage Act). The chapter then examines domicile and the modern-day principles by which the court’s jurisdiction over parties bringing proceedings for matrimonial causes is established. The final part of the chapter identifies the courts that are invested with jurisdiction to determine family law matters in Australia and the appeal system applied to those courts.

Constitutional powers 4.2 The Australian Constitution, which commenced on 1 January 1901, vests in the Commonwealth certain powers to make laws with respect to 40 enumerated subjects. Most of these are

found in s 51. The relevant areas for family law purposes are found in placita (xxi) and (xxii). Consequently, s 51, with these two placita, reads as follows: The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to: … (xxi) marriage; (xxii) divorce and matrimonial causes, and in relation thereto, parental rights, and the custody and guardianship of infants.

Additionally, placitum (xxxix) confers an incidental power to enable the making of legislation in matters incidental to the execution of any power vested in the parliament. [page 157] 4.3 The High Court of Australia has said repeatedly that the connotation or meaning of a given term in the Constitution remains fixed as it was in 1900, while its denotation or the extent of its application changes according to circumstances.1 In the 1999 case of Re Wakim; Ex parte McNally,2 McHugh J commented: … many words and phrases of the Constitution are expressed at such a level of generality that the most sensible conclusion to be drawn from their use in a Constitution is that the makers of the Constitution intended that they should apply to whatever facts and circumstances succeeding generations thought they covered.3

While the meanings of the terms ‘marriage’ and ‘divorce’ have remained fairly constant, the changes that have taken place have largely occurred by legislative action rather than by judicial interpretation. Interestingly, in the context of ‘marriage’, McHugh J in Re Wakim also commented: … in 1901 ‘marriage’ was seen as meaning a voluntary union for life between one man and one woman to the exclusion of all others. If that level of abstraction were now accepted, it would deny the Parliament of the Commonwealth the power to

legislate for same sex marriages, although arguably ‘marriage’ now means, or in the near future may mean, a voluntary union for life between two people to the exclusion of others. (original emphasis)4

Of course, the insertion of a formal definition of ‘marriage’ into the Marriage Act in 2004 made it clear that parliament did not share the former High Court justice’s optimism for any future modification in the traditional view of marriage.5 Indeed, while the political debate continues more than a decade later, it is clear that it is constitutionally possible for parliament to legislate to change the definition of marriage. This was recently confirmed by the High Court in Commonwealth v Australian Capital Territory.6 In that case, the High Court considered legislation enacted in the Australian Capital Territory7 that purported to confer a right to marry for same-sex couples who were unable to marry under the federal legislation. In a unanimous decision, the High Court (French CJ, Hayne, Crennan, Kiefel, [page 158] Bell and Keane JJ) found that the Australian Capital Territory legislation could not operate concurrently with the Marriage Act 1961 (Cth).8 The High Court held that the federal legislation, which currently defines marriage as being between persons of the opposite sex, was a comprehensive and exhaustive statement of the law with respect to the creation and recognition of the legal status of marriages in Australia.9 In respect of the meaning of ‘marriage’, the High Court stated: Once it is accepted that ‘marriage’ can include polygamous marriages, it becomes evident that the juristic concept of ‘marriage’ cannot be confined to a union having the characteristics described in Hyde [v Hyde & Woodmansee10] and other nineteenth century cases. Rather, ‘marriage’ is to be understood in s 51(xxi) of the Constitution as referring to a consensual union formed between natural persons in accordance with legally prescribed requirements which is not only a union the law recognises as intended to endure and be terminable only in accordance with law but also a union to which the law accords a status affecting and defining mutual rights and obligations.11

After noting that other legal systems have now provided for samesex marriage, the High Court confirmed that when used in s 51(xxi) of the Australian Constitution, ‘marriage’ is a term that includes a marriage between persons of the same sex.12 This decision has therefore settled the debate over whether the Federal Parliament has power to legislate with respect to same-sex marriage. 4.4 If family law is viewed as an integral and homogeneous subject area on which it is appropriate to legislate, containing within it subject matters requiring a uniform approach, the conferral of legislative power has been incomplete. The Commonwealth has, in fact, no power with respect to ‘family law’.13 As Barwick CJ said in the 1981 case of Vitzdamm-Jones v Vitzdamm-Jones; St Clair v Nicholson,14 ‘the constitutional power does not relate to family, but relevantly so far as concerns present matters only to marriage and matrimonial causes’. But while a uniform approach may appear desirable in Australia after more than a [page 159] century of Federation, this was far from self-evident in 1901. Then, the resolution of family disputes was seen as raising legal problems requiring legal remedies, rather than as involving social and behavioural problems, the solution to which might more profitably be looked for in the social and behavioural sciences. In keeping with this approach, family relationships were viewed as being dominated by legal rights and duties, and any problems involved the infringement of these rights and the dereliction of such duties. As such, legal action was required to solve them. 4.5 The necessity of looking for a constitutional foundation for Commonwealth power over family law in two separate paragraphs

must arguably make for a fragmented approach. Even adding them together, they fall far short of providing a comprehensive system of family law. It is clear that an integrated approach to family law as a discrete area of private law is not possible in the absence of the conferral of a plenary power identified as such and capable of being delimited by reference to a full range of rights, duties and legal relationships answering to the description ‘family law’. 4.6 The statement of the two subjects ‘marriage’ and ‘matrimonial causes’ in two separate paragraphs does not mean that they form two watertight compartments. It is well recognised that a law may be characterised as being a law with respect to more than one particular subject matter;15 overlapping may therefore occur. A law may be a law with respect both to marriage and to matrimonial causes. Indeed, divorce may be viewed as a particular aspect of marriage, namely the termination of that relationship. The view, for instance, that if placitum (xxii) had not been included in s 51 of the Constitution there would have been no power to make laws providing for divorce solely in reliance on placitum (xxi), is unnecessarily narrow and must now be regarded as discredited.16 Indeed, an existing Commonwealth power may be used in furtherance of an objective not directly within Commonwealth jurisdiction, if that objective can be regarded as being ‘associated with matters in which the jurisdiction of the Commonwealth is invoked’.17 The availability of this ‘associated jurisdiction’, discussed at 4.83, is expressly recognised in s 33 of the FLA. 4.7 This brief reference to the legal delimitation of the powers with respect to marriage and divorce reflects the view held at the time of Federation, that these two subjects were concerned primarily with legal rights and duties. For example, John Quick and Robert Garran’s Annotated Constitution of the Commonwealth of [page 160]

Australia, the authoritative commentary published in 1901, deals with the topic of marriage in a way that is revealing of attitudes held at the turn of the last century: Marriage is a relationship originating in contract, but it is something more than a contract. It is what is technically called a status, involving a complex bundle of rights, privileges, obligations and responsibilities which are determined and annexed to it by law independent of contract. According to the law of England a marriage is a union between a man and a woman on the same basis as that on which the institution is recognised throughout Christendom, and its essence is that it is (1) a voluntary union, (2) for life, (3) of one man and one woman, (4) to the exclusion of all others. Laws relating to this subject will therefore embrace (1) the establishment of the relation including preliminary conditions, contractual capacity, banns, licence, consent of parents or guardians, solemnisation, evidence, and rules in restraint, (2) the consequences of the relation, including the status of the married parties, their mutual rights and obligations, the legitimacy of children and their civil rights. Quaere whether this power will enable the Parliament to legislate with respect to breach of promise of marriage; immoral agreements concerning marriage; and the separate property of married women. It could be argued that the first two matters belong to the general law of contracts, and the last one to the general law relating to civil rights; both of which classes of laws are reserved to the states. It might be said, however, that they impinge on the principal ground of power, ‘marriage’, and are conveyed by it.18

4.8 In the Commonwealth Constitution, as a general principle, private rights were regarded as more appropriately a matter for the states than for the Commonwealth. However, in the important matter of personal status, it was felt that the case for uniformity was unanswerable.19 We see, running through this authoritative commentary, the theme that divorce was indeed the subject of placitum (xxii) so as to enable the Federal Parliament ‘to abolish the varied and conflicting divorce laws which prevail in the States, and to establish uniformity in the cases for which divorce may be granted throughout the Commonwealth’.20 Reference was made to the example of the United States and the mistake made in that country in omitting to give its federal government the ability ‘to provide a number of contiguous and autonomous communities with uniformity of legislation on subjects of such vital and national importance as marriage and

divorce’. ‘Matrimonial causes’ in placitum (xxii) was regarded as being concerned [page 161] with matters ‘subsidiary and consequential to marriage and divorce’, including ‘probably maintenance of wives and children, and marriage settlements’.21 Later developments in the law of matrimonial causes have removed many doubts on this aspect, but the fact that the learned authors felt doubts at all shows the extent to which private rights were thought, in 1901, to be matters that should remain within the jurisdiction of the states. Again, in relation to parental rights it was made clear that the transfer of power to the Commonwealth was strictly limited to what was incidental to divorce and matrimonial causes, in order to make those powers more complete.22 4.9 Harrison Moore’s view was that with the diversity of matrimonial laws in the six Australian states, individuals might be regarded as married in one state and single in another.23 This directly contradicts what must have been one of the main underlying reasons for entrusting marriage and divorce to the Commonwealth. Certainly, it was not borne out in the 60 years after Federation, when the Commonwealth did not choose to exercise these two powers, but left the states to continue to occupy the area practically unhampered until the Marriage Act and the Matrimonial Causes Act 1959 (Cth) (Matrimonial Causes Act) were enacted. A study of the early Australian constitutional authorities shows that what was chiefly in the minds of the framers of the Constitution was the need to ensure the recognition of such a basic institution as marriage in the different parts of the new Commonwealth and beyond its borders, throughout what was then known as the British Empire. Legislation for marriage

necessarily also implied legislation for its dissolution, since the recognition of a person’s status as a divorced person was a necessary precondition to the capacity to remarry. Both Harrison Moore and Quick and Garran24 make it clear that recognition of the validity of marriage and divorce is regarded as of considerable importance. 4.10 If the approach to ‘family law’ in the Constitution appears to us as a piecemeal solution, it did not, as it turned out, raise many constitutional problems for the first 60 years of Federation. As previously mentioned, the Commonwealth chose not to exercise the substance of its jurisdiction under s 51(xxi) and (xxii) of the Constitution, and these matters remained within the jurisdiction of the states. The Commonwealth had ventured into the matrimonial causes field during World Wars I and II, when jurisdictional problems arose from the movement of servicemen into, out of, and within Australia. When marriage breakdown — which seems to be higher in times [page 162] of war — became a problem, the domiciliary requirements of jurisdiction, based on the laws of six states, were found to present considerable inconvenience and required legislative intervention. The Matrimonial Causes (Expeditionary Forces) Act 1919 (Cth) gave effect to an Imperial Act relaxing the restrictions imposed by the doctrine of domicile on proceedings in matrimonial causes. In the Matrimonial Causes Act 1945 (Cth), the Commonwealth widened the jurisdiction of state courts in matrimonial causes. This was to enable deserted wives (who had lost their Australian domicile and had acquired the domicile of their husbands, while still resident in Australia) to sue in the courts of their residence; their husbands in many cases having disappeared to the overseas countries from which they had come.25 In 1955, a further

extension took place when the requirement of domicile to found jurisdiction was further relaxed in relation to women, and the criterion of three years’ residence was substituted for it.26 These Acts did not, however, effect any permanent changes in Australian marriage and divorce laws. In 1959, demands for a uniform divorce law culminated in the enactment of the Matrimonial Causes Act. In the Marriage Act, the Commonwealth sought to regulate the legal aspects of marriage and the legal relationships that it brought into being in its various aspects. These Acts superseded the laws of the states and formulated one uniform Commonwealth law on marriage and divorce.

The marriage power 4.11 In using the expression ‘matrimonial causes’, the Constitution did not spell out the precise meaning and extent of that phrase; it has always been a matter of statutory interpretation, which has varied from time to time. The meaning of ‘marriage’ is less obscure. Until more recent times, the definition of marriage for the purposes of marriage law had been settled in the UK and in countries that derived their laws from that country as ‘the union of one man and one woman, for life to the exclusion of all others’.27 Yet in the constitutional context, this simple expression has presented problems. In conferring upon the Commonwealth power to make laws with respect simply to ‘marriage’, what was the extent of that power? Did marriage connote simply the act of marrying, or did it bring with it a power to regulate the status that was created by that act? And if so, how far did the Commonwealth power reach in regulating the legal incidents and consequences of that act? 4.12

These questions came before the High Court in in 1962.

The question that arose concerned Pt VI (ss 89–91 and 94) of the Marriage Act. It required a detailed [page 163] discussion of those four sections. Section 89 provided for the legitimation of an ex-nuptial child by the subsequent marriage of the child’s parents. Section 90 extended that principle further by making it applicable even where the subsequent marriage of the parents took place outside Australia and the father was not domiciled in Australia at the time. In such circumstances, the marriage had the same effect of legitimating the child, even though the laws of the father’s domicile did not recognise such a legitimating effect. Section 91 embodied the concept of the ‘putative marriage’. It provided that the child of a void marriage is deemed to be legitimate if at the time of the conception of the child, or of the ceremony of marriage — whichever was the later — either party believed on reasonable grounds that the marriage was validly entered into. Last, s 94 made the crime of bigamy an offence under the Marriage Act, a Commonwealth law. It had previously been an offence under the laws of the states (and, interestingly, bigamy continues to remain a crime under state law, except in Tasmania and Western Australia where the state provision has been removed).28 The Marriage Act case raised squarely the question of how far the Commonwealth could go in legislating in relation to marriage. In separate judgments, discussed further below, ss 89–91 were held by a majority of the High Court (Kitto, Taylor, Menzies and Owen JJ) to be a valid exercise of the power to legislate with respect to marriage.29 The High Court was unanimous, however, in finding that s 94 was a valid exercise of ‘marriage power’. 4.13 The main interest of the decision lies in the court’s discussion of the marriage power and the extent of its operation in

areas of private law. The High Court distinguished between three aspects, or degrees, of the marriage power. In the first place, there was what Taylor J called the ‘forms and requisites’ of marriage.30 This primary aspect covered solemnisation of marriage, the ‘conditions and circumstances in which men and women might enter into matrimony, the method of doing so and the consequences of incapacities, impediments and informalities’. Consequently, it dealt with who might be married and how. Rules concerning these matters, and also divorce from matrimonial obligations and dissolution of the bonds of matrimony, constitute marriage law in a primary sense. It is, according to Windeyer J, ‘a body of rules relating to the creation or the termination of the status of husband and wife, as distinct from the legal attributes, incidents and consequences that attach and give a substance to that status’.31 [page 164] It does not seem arguable to suggest that these primary aspects of marriage are not covered by the marriage power, for if they are not, what is? Even Dixon CJ, who took the narrowest view of the power, held them to be included in it. 4.14 The second aspect seems only slightly less closely connected with the power. Quick and Garran recognised two groups of laws falling within the subject of marriage. The first was marriage in this primary sense. The second included ‘the consequences of the relation, including the status of the married parties, their mutual rights and obligations, the legitimacy of children and their civil rights’.32 This view found support in some of the judgments in the Marriage Act case. Taylor J stated: I feel bound to regard the paragraph as justification for the enactment of any law with respect to marriage considered as an institution … It extends not only to laws defining and regulating the respective rights duties and obligations of the parties

inter se. Indeed, the full measure of the legal effect of a marriage can be determined only by reference to the rights duties and obligations, which, by law, arise out of the relationship and I can see no reason why a constitutional power to make laws with respect to the subject matter of ‘marriage’ should not be thought to authorise laws defining or modifying and re-defining the legal incidents of the relationship.33

Menzies J’s views were expressed even more strongly: I do not think the existence of s 51(xxii) requires the implication that s 51(xxi) is limited to determining who may marry and the forms and ceremonies of marriage. The power must extend to the mutual rights and obligations of spouses unless it be that state law could deprive marriage according to Commonwealth law of any legal significance except for Commonwealth purposes (eg divorce, income tax, estate duty, etc). It would be quite unrealistic to construe s 51(xxi) and (xxii) together as according power to provide for the vows with which marriage shall begin and the grounds for divorce to bring it to an end but as having nothing to do with the obligations one to another of those who marry, the disregard of which obligations is the basis for divorce.34

Menzies J accordingly thought that ss 89 and 90 were laws ‘with respect to marriage because they relate to the effect of marriage upon the relationship of those who marry and their children’.35 [page 165] Windeyer J also agreed that Commonwealth law could extend: … at least to the personal relationships that are the consequences of marriage — cohabitation, conjugal society, all that is meant by consortium, the mutual society, help and comfort that the one ought to have of the other. These are of the very nature of marriage.36

4.15 It was with the third aspect of the marriage power that greater doubts arose. These concerned the wider consequences of marriage on the rights and obligations of the spouses, of which Harrison Moore said: Whether the marriage power goes further and enables the Commonwealth Parliament to legislate as to the effect of marriage on the property of the spouses, their contractual and tortious responsibility, and their rights of succession inter se may be doubted.37

It is in matters of property and succession laws that these remoter consequences of marriage are chiefly called into question. The Marriage Act case was not, of course, concerned with these particular aspects. It was concerned primarily with legitimacy — a subject that is more intimately connected with family law because of the conceptual connection between the two. The concept of the legitimacy or illegitimacy of children necessarily involves, and depends for its existence on, the concept of marriage. No such close and necessary connection existed with regard to property rights of spouses between themselves. Of course, legislation both as to divorce and concerning the property of married persons may be made to depend on different criteria connected with marriage. However, the constitutional question concerned the extent to which the Commonwealth can select these criteria and annex legal consequences to them. The same consideration applies in relation to both the maintenance of spouses and parenting disputes over the children of the marriage. However, in relation to property, the traditional view of the law meant that there was reluctance to go as far. Property rights were traditionally regarded as sacrosanct, and any interference with them was regarded as a matter for state legislation. Since there was no necessary legal connection between marriage and the distribution of property — unlike the maintenance of a spouse which was affected by the legal duty of support, now embodied in s 72 of the FLA — the mere invocation of the marriage power may not, of itself, have been thought to suffice to vest in the Commonwealth a power to enter into this area of private rights. [page 166] 4.16 At all events, the dicta in the Marriage Act case tended against the Commonwealth power in matters of property. Kitto J raised the question, but expressly declined to answer it.38

Windeyer J regarded it as ‘very doubtful’.39 There are dicta in Taylor J’s judgment that may be thought to allow such an extension.40 However, he spoke about ‘rights and duties and obligations of the parties inter se’, and ‘a power to modify, and redefine the legal incidents of the relationship’.41 These dicta do not go beyond personal rights and obligations. In relation to legitimacy and legitimation, the majority view really amounted to this: that the Commonwealth could alter the status of legitimacy under the power with respect to marriage, but that this left untouched the power of the states to annex legal consequences to that status (eg in matters of property), or to discriminate in this respect between persons born legitimate and those ‘federally legitimated’. Translated into matrimonial property law, property rights and interests of spouses and children are not of the ‘essence of the estate of matrimony’.42 4.17 As regards both the first and second classes of matters arguably within the concept of ‘marriage’ in s 51(xxi), it was the unanimous view of the High Court in the Marriage Act case that these fell squarely within the Commonwealth marriage power. It is a view that is fully in line with early authorities. The questions on which the High Court disagreed did not come within either class. Indeed, it was argued for the state of Victoria that the proper concern of the marriage power was just with the two classes already mentioned, namely solemnisation leading to the formation of marriage, and the status arising out of marriage. The objection to s 89 was that it was a law with respect to legitimation rather than with respect to marriage. Since legitimation means little in itself, it is necessary to look at the consequences to which it gives rise. When these are examined, it becomes clear that they are chiefly in the field of state legislative competence. It was argued that the prima facie effect of s 89 was to bring about major alterations to state laws of succession, which must be taken to be contrary to the intentions of the states. These, however, by virtue of s 109 of the

Constitution, must give way to Commonwealth laws with which they are inconsistent. Consequently, the Commonwealth would, in fact, by a circuitous route, be altering state laws which, according to Dixon CJ, it would not otherwise have the power to do.43 As the objection was put by McTiernan J, the effect of s 89 would be to confer the status of legitimacy by force of the section, not by the marriage of the parents.44 [page 167] The majority view was less rigid in that it recognised the duality of characteristics of the impugned law. The law was one with respect to legitimation, but it was also a law with respect to ‘the step to which a legitimating effect is given’.45 Nor should the question of dual characterisation be pursued too far. Although it was a law with respect to legitimation, s 89 could not be said to be a law with respect to descent or inheritance. Both these areas were matters within state power and, therefore, outside Commonwealth power. The reason it was not a law with respect to those areas was that it did not, of its own force, determine the devolution of property.46 It only appeared to have that effect because such consequences were annexed to the status of legitimacy by state law. The majority accepted the argument of the Commonwealth that it was open to a state to avoid these consequences by altering the rules of inheritance. A state could thus exclude a child who had been legitimated by s 89 from inheriting, by providing that such a child remained illegitimate for the purposes of state inheritance law. This argument did not commend itself to Dixon CJ, who thought that to discriminate between ‘the legitimate and … those federally legitimated’ would involve a very restrictive and unnatural interpretation of ss 89 and 91.47 4.18

As for s 91 — which purported to annex the status (and

consequences) of legitimacy to certain void marriages on the basis of a belief by at least one of the parties in the validity of such a marriage (called a ‘putative marriage’) — Dixon CJ left little doubt that he regarded it as, in effect, a contradiction in terms to recognise a law under the marriage power, which was concerned with something manifestly not a marriage at all. However, as is shown, for example, in the judgments of Windeyer J and of McTiernan J, the concept of the putative marriage was once well known, and it was merely being resurrected by s 91. Kitto J sums the matter up simply and clearly: Thus the Parliament, having rendered void five classes of marriage which otherwise would have been valid, has by s 91 done no more than add an ancillary provision, limiting the legal consequences of the avoidance.48

4.19 For a ‘marriage’ to come within s 91 of the Marriage Act, there must first have been a ceremony in the form of a marriage. It must have been intended to be effective by at least one of the parties. The very question as to whether a marriage is void involves a consideration of the Commonwealth law that prescribes the conditions for a valid marriage, as well as of s 18 of the Matrimonial Causes Act that renders the marriage void. Looking at the matter in another way, s 91 was a law that merely limited the legal consequences of the invalidity of the marriage [page 168] and was thus plainly an ancillary provision to the substantive questions of validity and avoidance. 4.20 While the Marriage Act case saw the beginning of a gradual widening of the marriage power, that process remained hesitant and at times almost reluctant. In the 1976 case of Russell v Russell49 (see 4.32), the question was debated as to whether proceedings between the parties to a marriage with respect to the property of either or both were authorised by the power. The

majority held that the marriage power encompassed both the creation of rights generally arising out of the marriage relationship and the enforcement of those rights.50 However, the reference to property as to which proceedings could be brought, could not be without limitations. The provision as it stood in Russell v Russell, which purported to relate to all property of the parties, was held to be invalid because it would have travelled beyond the marriage relationship and purported to include property rights that were not ‘grounded in that relationship’.51 However, where proceedings in relation to property arising out of the marriage relationship were instituted between the parties, the marriage power was also extended to enable those proceedings to be continued after a party’s death by or against that party’s personal representative.52

The matrimonial causes power 4.21 What is the meaning of ‘matrimonial cause’ in s 51(xxii) of the Constitution? Do the words conveying the power necessarily require interpretation in the light of the meaning that they bore in 1901, when the Constitution was enacted? Or is it possible that developing concepts and changing social conditions may have affected them? The first comprehensive enactment by the Commonwealth to regulate matrimonial causes was the Matrimonial Causes Act. The definitions of ‘matrimonial cause’ in that Act differed from those first enacted in the FLA and they, in turn, were altered on several subsequent occasions. 4.22 The question as to the extent to which the definition of ‘matrimonial cause’ falls within the constitutional power of the Commonwealth has often been considered by the High Court of Australia. The classic answer is that while the connotation or meaning of a given term in the Constitution remains fixed as in 1901, its denotation or extent of application will change according to changing

[page 169] conditions. This view has been expressed over the years and applied in varying degrees.53 In the 1964 case of Lansell v Lansell,54 Menzies J said: It is right, in construing a grant of power, to ascertain as a starting point at least what the words used in the Constitution meant in 1901 when the Constitution was enacted, but it is quite another thing to attempt to confine the legislative power of the Parliament to making the kind of laws then in existence.55

Similarly, Taylor J said: ‘although the meaning of these terms does not change, their denotation must extend as new concepts develop.’56 By the use of this somewhat sophistical reasoning, the High Court seems to want to have its cake and eat it too. Dealing specifically with the argument that in exercising a power assigned to it the Commonwealth must not go beyond the bounds of the power as delineated or understood in 1900, Windeyer J said: ‘The usage of 1900 gives us the central type; it does not give us the circumference of the power.’57 Clearly, then, whichever way one looks at it, a consideration of the meaning of ‘matrimonial cause’ in 1901 will be relevant as a starting point for the discussion of ‘matrimonial cause’ in current times. The modern starting point in a consideration of the meaning of this expression must be the UK Divorce and Matrimonial Causes Act 1857. This included divorce, nullity, judicial separation, jactitation58 and restitution of conjugal rights.59 Standard works of reference accordingly defined ‘matrimonial cause’ in those terms.60 Yet there was nothing sacrosanct in that definition. Seeking to discover the ‘outside limits’ rather than the ‘minimum content’ of a constitutional power,61 it will be not only legitimate, but also necessary to refer to the ‘nature of the subject’ rather than to any artificial limitation derived from a law passed in 1857.

[page 170] 4.23 It has been said that a ‘cause’ is not a technical word signifying one kind of action or another. It is a causa jurisdictionis: any suit, action, matter or other similar proceeding competently brought before and litigated in a particular court.62 ‘Matter’ has been held to mean not simply ‘legal proceeding’, but the subject matter for determination in a legal proceeding.63 ‘Cause’ under the Judiciary Act 1903 (Cth) s 2 includes any suit, with ‘suit’ including any ‘action or original proceeding between parties’. A ‘matrimonial cause’ in this sense must therefore refer to legal proceedings arising out of, or concerning, a matrimonial relationship. 4.24 The Commonwealth Constitution did not spell out the meaning of ‘matrimonial causes’ in s 51(xxii). The Commonwealth first legislated substantively under this head in s 5(1) of the Matrimonial Causes Act, as follows: ‘matrimonial cause’ means — (a) proceedings for a decree of — (i) dissolution of marriage; (ii nullity of marriage; (iii) judicial separation; (iv) restitution of conjugal rights; or (v) jactitation of marriage; (b) proceedings for a declaration of the validity of the dissolution or annulment of a marriage by a decree or otherwise of a decree of judicial separation, or for a declaration of the continued operation of a decree of judicial separation, or for an order discharging a decree of judicial separation; (c) proceedings with respect to the maintenance of a party to the proceedings, settlements, damages in respect of adultery, the custody or guardianship of infant children of the marriage or the maintenance, welfare, advancement or education of children of the marriage, being proceedings in relation to concurrent, pending or completed proceedings of a kind referred to in either of the last two preceding paragraphs, including proceedings of such a kind pending at, or completed before, the commencement of this Act; (d) any other proceedings (including proceedings with respect to the enforcement

of a decree, the service of process or costs) in relation to concurrent, pending or completed proceedings of a kind referred to in any of the last three preceding paragraphs, including proceedings of such a kind pending, at, or completed before, the commencement of this Act; or (e) proceedings seeking leave to institute proceedings for a decree of dissolution of marriage or of judicial separation, or proceedings in relation to proceedings seeking such leave.

[page 171] This definition of ‘matrimonial cause’ was by no means as comprehensive as it may have seemed. It included, as principal relief, divorce, nullity and the other forms of action in para (a).64 However declarations of validity, while not strictly proceedings for principal relief, were treated as such for the purposes of s 89 of the Act, enabling the court to make certain ancillary orders in relation to a petition for a declaration of validity that had been dismissed.65 4.25 The coverage of matrimonial causes under the Matrimonial Causes Act manifestly fell short of the possible coverage available to the Commonwealth under s 51(xxii) of the Constitution. The result of this incomplete coverage meant important areas were left outside its scope, notably the maintenance of wives and children, custody of children (except in relation to divorce or other ‘principal proceedings’) and guardianship of such children. In the other area of ancillary relief, concerning matrimonial property, there was again a bifurcation of jurisdiction. Jurisdiction was assumed under federal law where proceedings were in relation to proceedings for principal relief, but remained under state law where this was not the case. ‘Grey areas’ continued to exist; for instance, as to whether Commonwealth law could deal with matrimonial property matters where a matrimonial cause for principal relief had come into existence, but had been disposed of prior to the litigation of the property questions.66

4.26 The question in the 1964 case of Lansell v Lansell67 was whether there was power to order settlements of matrimonial property under the matrimonial causes power, and whether s 86(1) of the Matrimonial Causes Act which purportedly conferred such a power was valid and, if so, to what extent. The parties had been married, but their marriage had been dissolved in 1948 under the Marriage Act 1928 (Vic), which at that time governed divorce in Victoria. The fact that that divorce had taken place some 14 years before the proceedings in question was one of the matters in issue. By its terms, the Matrimonial Causes Act applied to such proceedings (‘proceedings with respect to … settlements … being proceedings in relation to concurrent, pending or completed proceedings’ (emphasis added)).68 The High Court held that the matrimonial causes power extended to such proceedings. Kitto J said: It is obvious that where any of these forms of principal relief is granted … a readjustment of property rights of the spouses may be required if consequential

[page 172] injustice to one or both of the spouses and to the children is not to result. The making of a settlement may be a way of carrying to completion, or nearer to completion, the task of dealing fully with the relationship which is the subject of the matrimonial cause. Orders with respect to maintenance are familiar as one means of dealing with an economic situation arising from the granting of substantive matrimonial relief. Orders varying ante-nuptial or post-nuptial settlements, as provided for by s 86(2) provide another example …69

In relation to both property and maintenance, Kitto J said they were: … relief incidental to, because consequential upon the dissolution of a marriage or the granting of one of the other forms of relief which identify a cause as a matrimonial cause in the ordinary English sense of the expression.70

4.27 The close relationship between maintenance and property orders, as forms of relief arising out of marriage and its dissolution,

was further stressed in the 1967 case of Sanders v Sanders.71 The view taken by the High Court of these two forms of relief was that they were very closely interlinked. They were said to overlap, rather than be mutually exclusive.72 Consequently, the property of a party could be settled on the other party in order to provide maintenance for that other party. These developments were to lead the way towards a more comprehensive view as to the property implications of marriage and divorce, and towards a more plenary view of Commonwealth power in family matters.

The FLA 4.28 The background to the enactment of the FLA is discussed at 1.40–1.43. When the FLA came to be enacted, it appeared that a wide approach was to be taken, conformably with the dicta referred to above. It was the intention of the framers of the new legislation to exercise as extensive a power as the Constitution conferred on the Commonwealth. In particular, the expedient of vesting federal jurisdiction in state Supreme Courts (see 1.38) was to be abolished with the setting up of a specialist federal court, the Family Court of Australia. The exercise of federal jurisdiction over matrimonial causes by the Family Court would be based on the Commonwealth’s constitutional power. In conferring this jurisdiction, the FLA definition of ‘matrimonial cause’ would determine the extent of the Family Court’s jurisdiction. [page 173] 4.29 The original definition of matrimonial cause in s 4 of the Act read as follows: ‘matrimonial cause’ means — (a) proceedings between the parties to a marriage for a decree of —

(i) dissolution of marriage; or (ii) nullity of marriage; (b) proceedings for a declaration as to the validity of a marriage or of the dissolution or annulment of a marriage by decree or otherwise; (c) proceedings with respect to — (i) the maintenance of one of the parties to a marriage; (ii) the property of the parties to a marriage or of either of them; or (iii) the custody, guardianship or maintenance of, or access to, a child of a marriage; (d) proceedings between the parties to a marriage for the approval by a court of a maintenance agreement or for the revocation of such an approval or for the registration of a maintenance agreement; (e) proceedings for an order or injunction in circumstances arising out of a marital relationship; or (f) any other proceedings (including proceedings with respect to the enforcement of a decree or the service of process) in relation to concurrent, pending or completed proceedings of a kind referred to in any of paragraphs (a) to (e), including proceedings of such a kind pending at, or completed before, the commencement of this Act.

When one compares this definition with the definition in the Matrimonial Causes Act (see 4.24), it is apparent that some significant changes were made. There is an assumption of power in para (c) to deal with the property of parties to a marriage, which was lacking in the Matrimonial Causes Act in which proceedings for a settlement, for example, were defined as being matrimonial causes only if they were in relation to concurrent, pending or completed proceedings for principal relief: s 5(1)(c).73 This was coupled with the power to make declarations of interests in property of the parties (FLA s 78) and to alter their interests in such property: FLA s 79. The way seemed open, in view of the marriage power, to deal with the property relationships of the parties to a marriage, even in the absence of any proceedings, antecedent or concurrent, for principal relief (eg divorce or nullity). Under the matrimonial causes power and without the existence of any proceedings in the nature of a matrimonial cause, such a step would have still fallen short of the creation of a regime of matrimonial property

involving property rights and liabilities arising in consequence of marriage. However, even this degree of legislative intervention was at first rejected when the question came before the High Court quite soon after the FLA came into operation: see 4.32. [page 174] 4.30 The expression ‘child of the marriage’ further defined and amplified that phrase as it was used in the definition of ‘matrimonial cause’. It was dealt with in s 5 of the Act. As originally enacted in the FLA, this read as follows: (1) For the purposes of the application of this Act in relation to a marriage — (a) a child adopted since the marriage by the husband and wife or by either of them with the consent of the other; (b) a child of the husband and wife born before the marriage; and (c) a child of either the husband or wife (including an ex-nuptial child of either of them and a child adopted by either of them) if, at the relevant time, the child was ordinarily a member of the household of the husband and wife, shall be deemed to be a child of the marriage, and a child of the husband and wife (including a child born before the marriage) who has been adopted by another person or other persons shall be deemed not to be a child of the marriage.

As with the definition of ‘matrimonial cause’, here again the Act was designed to provide as wide a coverage of family law as possible. This was intended to overcome constitutional restrictions to which any comprehensive family law legislation by the Commonwealth was obviously subject. The inclusion of s 5(1)(c) was a clear attempt to widen the scope of the FLA so as to deal with families as comprehensively as possible; in particular, blended families with step-children. The concept ‘child of the marriage’ was obviously modelled on the ‘child of the family’, which was a concept well known in the laws of the states, as well as in UK law. This may be compared with the

now repealed s 3(1) of the Maintenance Act 1965 (Vic), where ‘child of the marriage’ was defined as ‘any child of either party who has been accepted as one of the family by the other party’. It was defined even more widely in the Matrimonial Proceedings and Property Act 1970 (UK) s 27(1)(b) as ‘any other child … who has been treated by both parties as a child of their family’. Since the word ‘family’ is not a concept known to the Constitution, the expression ‘child of the marriage’ was presumably intended to bring this extension to the reach of the FLA within the range of Commonwealth power. This bold attempt, however, did not survive long.

The first challenge to the FLA: Russell v Russell 4.31 One of the by-products of the Commonwealth taking control, so far as it could, of family law was a series of constitutional challenges that were to engage the attention of the High Court for years to come. Looking at the matter four decades later, it is evident that the result has been a clarification of the federal/state boundary lines of legislative power. [page 175] In the wake of the challenges has come also the deliberate widening of federal jurisdiction; first by the development of accrued jurisdiction, then by the referral of power with respect to children by the states to the Commonwealth, and last by crossvesting legislation subsequently held to be constitutionally flawed. These developments are discussed below. 4.32 A constitutional challenge to this assumption of power by the Commonwealth was not long in coming in the twin cases of Russell v Russell; Farrelly v Farrelly.74 A number of issues were raised. The cases involved a discussion of both the marriage and the

matrimonial causes powers. The FLA showed an intention to confer power to deal with orders for maintenance, property and custody where such an application was unrelated to any proceedings for divorce or nullity. If this was not a matrimonial cause, was it a law related to marriage? The section clearly referred to the property of the parties to a marriage. The issues in Russell v Russell were relatively simple and seemed to concern matters of procedure. They were whether the Commonwealth had power to prescribe to state courts exercising jurisdiction under the FLA that all proceedings under the Act were to be heard in closed court, as was then prescribed by s 97(1), and that neither judges nor counsel were to wear robes, as was then prescribed by s 97(4). Of course, the Commonwealth had the power to issue such requirements to its own courts, such as the Family Court of Australia. However under the Act, jurisdiction was initially also vested in state Supreme Courts and courts of summary jurisdiction.75 Additionally, jurisdiction could be vested in state family courts, where such courts existed.76 The vesting of federal jurisdiction in state courts is authorised by ss 71 and 77(iii) of the Constitution. It was an expedient that had worked well in the past when the volume of federal judicial work was comparatively small. In such circumstances, it was considered uneconomical to create parallel judicial structures to those of the states in order to deal with this federal work, particularly in the smaller states. Consequently, during the whole of the life of the Matrimonial Causes Act 1959 (Cth), the jurisdiction created by that Act was dealt with by the Supreme Courts of the several states and territories on which jurisdiction had been conferred by s 23 of that Act. However, the jurisdiction of the Supreme Courts of the states and territories under the FLA was terminated by proclamation of the Governor-General on 27 May 1976,77 pursuant to s 40(3) of the Act with effect from 1 June 1976.

Section 97 of the FLA was expressed to apply to the Family Court of Australia and to any other courts exercising jurisdiction under the Act. This attempted extension to state courts met with considerable opposition. In Russell v Russell, the issue of whether the Commonwealth could prescribe to a state court how it was [page 176] to conduct its business was raised for the determination of the High Court. Of the five justices who sat (Barwick CJ, Gibbs, Stephen, Mason and Jacobs JJ), a majority (Barwick CJ, Gibbs and Stephen JJ) held that the Commonwealth did not have power to prescribe to state courts that they were to sit in closed court. At the same time, a majority (Stephen, Mason and Jacobs JJ) also held that the requirement against robing was valid. 4.33 This difference of opinion lay in the way these requirements were viewed. In investing state courts with federal jurisdiction, the Commonwealth must take such a court ‘as it exists’.78 In other words, the Commonwealth has no power to effect any transformation in a state court which is exercising federal jurisdiction, or to attach officers to such a court.79 On the other hand, the Commonwealth can prescribe matters of practice and procedure in relation to the discharge of the federal jurisdiction vested in the state court. The differences of judicial opinion in Russell v Russell really revolved around the question whether the matters laid down in s 97 were of such a kind. The majority who upheld the robing issue viewed it as a mere matter of practice and procedure. So too did the minority of two justices who would have upheld the requirement of closed courts. However, Stephen J, who held the balance of voting on this issue, regarded the question of ‘closed as against open courts’ as fundamental to the nature of Australian courts of law. In his view, to require a state court to sit as a closed court would have

effectively transformed it into a different kind of tribunal.80 Consequently, he opposed the provision as an attempt by the Commonwealth to transform state courts, which he held to be unconstitutional. 4.34 The questions in Farrelly v Farrelly were more fundamental and went to the issue of Commonwealth/state powers. The case arose out of an application for custody under the Guardianship of Infants Act 1940 (SA). An ex parte order was made under that Act by the Supreme Court of South Australia. The respondent then applied for that order to be discharged, and for an order in his favour. Under the FLA, which had meanwhile come into effect, ‘proceedings with respect to the custody, guardianship or maintenance of, or access to, a child of the marriage’ were defined as being a matrimonial cause.81 Unlike the Matrimonial Causes Act 1959 (Cth), the FLA assumed power over such matters, irrespective of whether proceedings for principal relief (ie divorce, nullity or declarations of validity) had been instituted. In Farrelly v Farrelly, they had not. Nevertheless, if the assumption of jurisdiction in this class of case was valid, the effect of s 9(4) of the Act was that pending proceedings of this kind, [page 177] which had been instituted under state law, could be continued under the FLA. That was the respondent’s application in Farrelly v Farrelly. The question then arose whether the assumption of jurisdiction under the FLA was valid in relation to this kind of case. If it was not, then not only would the respondent have to resort to the South Australian Act, but the provisions of the FLA which purported to assume that jurisdiction must be invalid. The question was of fundamental importance, and until it was

disposed of, the FLA and its entire machinery were in danger of grinding to a halt. 4.35 These questions before the court involved a consideration as to whether the Commonwealth in its assumption of jurisdiction in respect of ‘matrimonial cause’ as defined in s 4(1) of the Act, and in relation to a ‘child of the marriage’ as defined in s 5 of the Act, had acted within its constitutional powers in relation to these subject matters. The reference in para (c)(iii) of the definition of ‘matrimonial cause’ in s 4(1) to a ‘child of a marriage’ further related to the definition of the latter concept in s 5(1) of the Act. 4.36 It was held by a majority (Stephen, Mason and Jacobs JJ) that the statements in para (c) of the definition of matrimonial cause and in s 5(1) of the child of a marriage were too widely drawn and, as expressed, exceeded the power of the Commonwealth. In relation to all three classes of ancillary relief in para (c), the majority, against the dissent of Barwick CJ and Gibbs J, held that the Commonwealth had power to create a jurisdiction with respect to maintenance, property and custody, where the proceedings were not ancillary to proceedings for principal relief. The judgment of Mason J assumes special significance since Stephen J expressly agreed with it on this point. Jacobs J took a wider view, but for the purpose of ascertaining the ratio decidendi, the minimum area of judicial agreement must be looked to. 4.37 Mason J approached the question by considering, first, whether the matrimonial causes power of the Commonwealth (s 51(xxii) of the Constitution) authorised the legislation. Due to the matters associated with the conjunction of the words ‘divorce and matrimonial causes’, Mason J took the view that the meaning to be given to the expression ‘matrimonial cause’ was not as broad as it might otherwise have been. Specifically, the reference to ‘custody’ in placitum (xxii) suggested to him that ‘matrimonial cause’ itself might not have included custody. He also drew attention to the fact that the decision in Lansell v

Lansell (which had affirmed the validity of s 86 of the Matrimonial Causes Act) proceeded on the narrow ground that the power which it conferred on the court to make a settlement of the property of the parties to a marriage was exercisable only by way of ancillary relief in proceedings for dissolution of marriage or some other form of principal relief. Consequently, the jurisdiction conferred by s 39 of the FLA to deal with matrimonial causes as defined by s 4(1) — namely ‘maintenance, [page 178] property settlements, guardianship, custody and access, instituted not by way of ancillary relief but independently and separately from proceedings for annulment or dissolution of marriage’ — went beyond what was authorised by s 51(xxii) of the Constitution.82 However, having decided that the conferral of power as to these matters exceeded the matrimonial causes power, Mason J then examined the question whether any of them could be saved by being brought under the marriage power in s 51(xxi) of the Constitution. He referred back to the Marriage Act case83 (see 4.11–4.20), in which the High Court had rejected the notion that the power was confined to the celebration of marriage. According to his Honour: Once this step is taken it is obvious that the power extends to the institution of marriage, to the condition or state of being married and … to the definition of the respective rights, duties and obligations of the parties arising out of or in consequence of marriage … Moreover … it will extend to the enforcement of the rights, duties and obligations thereby created …84

Mason J accordingly concluded that ‘the marriage power enabled the Parliament to provide for the enforcement of such rights, duties and obligations as may be created in exercise of the marriage power’.85 But if the provisions were to be saved by reference to the

marriage power in this way, the proceedings must be between the parties whose marriage gave rise to those rights and duties. As para (c) of the definition of matrimonial cause was worded, it was in terms unlimited as to parties, and in this it went beyond the marriage power. The same objection also applied to paras (e) and (f). It did not apply to paras (a) and (d), which were expressed to relate to proceedings between the parties to a marriage. 4.38 This reasoning would have meant the invalidation of paras (c), (e) and (f), had it not been for the provisions of s 15A of the Acts Interpretation Act 1901 (Cth). That section allows the ‘reading down’ of a law that otherwise exceeds the legislative power of the Commonwealth. This means that the law may be read in a more limited sense that is within power, provided that the terms of the law supply a test or standard allowing a more limited application. According to Latham CJ in the 1948 decision of Pidoto v Victoria:86 In such a case the subject matter of the legislation itself is such as to provide a test for limiting the law by construction so as to treat it as applying only to

[page 179] that part of a definite subject matter which is within power and with which Parliament clearly intended to deal so far as it could lawfully do so.87

Applying that test, Mason J found that parliament, by providing for the exercise of jurisdiction in the matters referred to in paras (c), (d), (e) and (f) independently of proceedings for principal relief, had intended to exercise the marriage power. Accordingly, as to all of these, Mason J held that they could be so read down as to be valid if they related to proceedings between the parties to a marriage. However, two further restrictions had to be made. As regards para (c)(ii), which referred to the property of either party to a marriage, ‘presumably comprehending any property however and whensoever acquired’, there was nothing that related such

property to the marriage of the parties. The only way this provision could be saved was by reading it down by reference to the matrimonial causes power and treating it, in conjunction with s 39 of the Act, as conferring jurisdiction to grant ancillary relief in proceedings for principal relief. 4.39 The decision saved the Act, contrary to the expectations of some. Regrettably, it left some gaps and thus increased still further, for the time being, the fragmentation of Australian family law caused by the terms of the Commonwealth Constitution.

The effects of Russell v Russell 4.40 The immediate result of Russell v Russell was the amendment of the FLA so as to give effect to the inroads made on it by the decision. The Family Law Amendment Act 1976 (Cth) was assented to on 8 June 1976. The most important amendment was in the definition of ‘matrimonial cause’. The changes made to paras (c) and (e) reflect the decision in Russell v Russell. After the amendment, the relevant paragraphs of the definition read as follows: (c) proceedings between the parties to a marriage with respect to — (i) the maintenance of one of the parties to the marriage; or (ii) the custody, guardianship or maintenance of, or access to, a child of the marriage; (ca) proceedings between the parties to a marriage with respect to the property of the parties to the marriage or of either of them, being proceedings in relation to concurrent, pending or completed proceedings for principal relief between those parties; (cb) proceedings by or on behalf of a child of a marriage against one or both of the parties to the marriage with respect to the maintenance of the child; … (e) proceedings between the parties to a marriage for an order or injunction in circumstances arising out of the marital relationship.

[page 180]

4.41 The definition of ‘child of a marriage’ in s 5(1) was amended to remove the invalidated para (c) from the general ambit of the section. The broader class of children was retained to apply to s 63 of the Act: see now s 55A, discussed at 6.97–6.102. The concept of the ‘child of the marriage’ was to be the subject of a considerable amount of subsequent discussion and litigation over the coming decade. The referral of legislative power by the states to the Commonwealth in relation to ex-nuptial children (see 4.90) was to overcome many of the difficulties relating to children arising from the division of power between the states and the Commonwealth marked out by the matrimonial causes and marriage powers. 4.42 As a result of the amendments to the definition of ‘matrimonial cause’, there could be no proceedings relating to property, maintenance, custody and injunctions that were not between the parties to a marriage, or related to such proceedings. Property proceedings also had to be related to proceedings for principal relief; that is, they had to be in relation to such proceedings that were concurrent, pending or completed. This solution, as regards matrimonial property, came down on the side of caution and sought to avoid the risk of a major confrontation between the states and the Commonwealth as to their respective legislative powers in this sensitive area. 4.43 Such a conservative approach did nothing to minimise the problems inherent in the constitutional structure of Australian family law, nor did it avoid the jurisdictional pitfalls that such a structure was bound to invite. The Joint Select Committee Report in 1980 proposed among other things that the property provisions of the Act be widened by relating them to the marriage power (instead of leaving them confined to the matrimonial causes power). The Family Law Amendment Act 1983 (Cth) implemented that recommendation by extending the definition of ‘matrimonial cause’ in s 4(1)(ca)(i) to ‘proceedings arising out of the marital relationship’.

4.44 At the time of Russell v Russell, it may have seemed prudent to proceed as cautiously as was the case in restricting ‘matrimonial cause’, and to reduce the exercise of Commonwealth power, although there were dicta in that case tending to suggest that perhaps the restrictions need not have gone so far. In Russell v Russell, Barwick CJ put forward the view in hypothetical terms that ‘a system of communal property between spouses might possibly be erected as a consequence of the act of marriage …’.88 But he also took the view that, if so, such a power did not of itself extend to the creation of a jurisdiction to enforce those rights and duties. Nor would such an assumption of legislative power be justified either by the exercise of the incidental power in s 51(xxxix) of the Constitution, and ‘nor is it wrapt up as an incident and contained within the constitutional topic [page 181] of “marriage” itself’.89 His view was that the enforcement of such rights and duties was possibly a matter for the matrimonial causes power in s 51(xxii) of the Constitution. The deficiency in the FLA to deal with that power was, in his view, that ‘in the Act, it is sought to create such a jurisdiction as to property in which no interest is derived from the act of marriage’.90 In this view, he was in a minority. 4.45 Mason J (with whom Stephen J agreed) went further than the Chief Justice. He took the view that the marriage power included not only ‘the definition of the respective rights, duties and obligations of the parties arising out of or in consequence of marriage’, but also the ‘enforcement of the rights, duties and obligations thereby created without any resort to s 51(xxxix)’.91 This view was clearly acted on in Fisher v Fisher.92 But like Barwick CJ, Mason J held that para (c)(ii) was too widely drawn, ‘presumably comprehending any property howsoever and

whensoever acquired’.93 Consequently, para (c)(ii) could not be read down by reference to the marriage power. No amendment was made to para (f) in the definition of matrimonial cause although, as has previously been discussed, it was among the paragraphs that had gone too far, because it would have included proceedings between parties not parties to the marriage. However, it may have been thought that this defect was derivative since para (f) relates back to paras (a)–(e), and that it was cured by amendments to those paragraphs. Since all these paragraphs now referred to proceedings between the parties to a marriage, it could be said that the necessary nexus with the constitutional power had thus been established. Proceedings within para (f) were now connected with, or derived their validity from, earlier proceedings that satisfied the requirement as to a connection with the marriage power. In addition to the marriage and the matrimonial causes powers, the incidental power under para (xxxix) of s 51 of the Constitution may also be available in an appropriate case to support matters falling within para (f). 4.46 The narrow views of the marriage power that resulted in the restrictive expressions of opinion in Russell v Russell, particularly in relation to property, continued to inform judicial decision-making. However, differing opinions on the power have been expressed, centring on the requisite closeness of the connection between the particular power in question. An instance of this conflict is the 1981 case of Gazzo v Comptroller of Stamps; Ex parte Attorney-General (Victoria),94 where the reach of the constitutional power in relation to stamp duties imposed by a [page 182] state was in question. Section 90 of the FLA purported to exempt maintenance agreements and deeds executed under it from state

stamp duties. By a 3:2 majority (Mason and Murphy JJ dissenting), the High Court held the section invalid. The dissent of Mason J is persuasive, both from a family law and a constitutional point of view, and illustrates a plenary view of a Commonwealth power. On this view, applied in subsequent cases,95 a law with a ‘sufficient’ connection with the marriage relationship falls within the marriage power. By analogy with a law creating a matrimonial property regime, his Honour said in Gazzo: The same comment may be made of a law which provides that an instrument executed by a party pursuant to a court order shall be free from all duties. If the making of the court order for the transfer of the property by the husband to the applicant constitutes a valid exercise of the marriage power or is authorised by a legislative provision which itself is within the power, I find it difficult to perceive why the power does not extend to freeing the transfer from duty. To say that the execution of a transfer in compliance with a court order adjusting the rights of the parties to the marriage relationship shall not be made the occasion for the imposition of duties is to legislate on a matter which has not only sufficient, but also a very close, connection with the marriage relationship.96

Russell v Russell was only the first of many challenges concerning the power of the Commonwealth to legislate on family relationships and to enforce such legislation. As a result of the decisions of the High Court, the extent of Commonwealth power in family law has become much better defined. In some respects, that power is less than was thought, certainly less than was intended by the framers of the FLA. What has become quite clear is that the power of the Commonwealth in family law is incomplete; in fact, there is no ‘family law power’ as such.97 The limits of Commonwealth power and the resultant fragmentation of Australian family law are revealed in a number of leading decisions. Consideration of the cases is required for an understanding of the present constitutional position of Australian family law.

The limits of federal jurisdiction Introduction

4.47 The limits of Commonwealth legislative power are principally marked out by the marriage and matrimonial causes power, discussed above, and the legislative powers referred by the states, discussed at 4.89ff. Other means by which the boundaries of federal jurisdiction have been extended are also considered later in this chapter. [page 183] The principal areas concerning children, which remained with the states after the FLA was enacted, were the adoption of children, ex-nuptial relations and child welfare. This dichotomy of jurisdiction and the absence of federal jurisdiction to make comprehensive laws with respect to the welfare of children continued to present a challenge for the family law system in Australia. This is evident from the High Court decisions concerning adoption and the limits of the welfare jurisdiction of the Family Court under s 69ZC, discussed at 4.48 and 4.56 respectively. In relation to property matters, the states retained jurisdiction over financial relations between parties to de facto relationships until that power was referred to the Commonwealth: see 4.92. As mentioned at 4.43, the FLA jurisdiction in relation to matrimonial property proceedings, over which the Commonwealth clearly has legislative power, was widened in 1983 to include proceedings ‘arising out of the marital relationship’: s 4(1)(ca)(i). There have been a number of cases concerning property proceedings in which the constitutional question of whether a law that confers jurisdiction on the Family Court is valid has been raised before the Family Court. For example, s 106B (formerly s 85) of the FLA, which allows the court to set aside transactions to defeat an existing or anticipated order of the court, was held by the Full Court in Marriage of Gould98 to be a valid law based on s 51(xxi) and (xxii) of the Constitution. More recently, ss 90AE(2) and

90AF(2) — which provide for the court to make orders binding third parties to the marriage where those rights were sufficiently connected to the division of property between the parties to the marriage — were held at first instance in Hunt v Hunt99 to be constitutionally valid. As mentioned at 15.24, an application for special leave to appeal to the High Court challenging the validity of the provisions in Pt VIIIAA of the FLA was considered in 2006 and special leave was refused.100 These cases and other decisions relating to the extent of the Family Court’s jurisdiction to make orders under s 79 of the Act are discussed in detail in Chapter 15.

Federal law and the adoption of children 4.48 The interaction of the federal family law and state adoption jurisdictions was examined by the High Court in the 1987 case of Re LSH; Ex parte RTF.101 The marriage of the respondent, LSH, and one of the ‘prosecutors’, JEF, was dissolved and custody of their child was granted to the mother, JEF. An order for limited access was granted to the father at first, but this later ceased. The mother then married RTF. Together, the mother and her new husband applied in the South Australian Children’s Court for an adoption order in respect of the child. The child’s father [page 184] then revived the former access proceedings and sought an injunction in the Family Court to restrain the adoption proceedings. The Family Court (McGovern J) granted the father an interlocutory injunction. The mother then appealed to the Full Court of the Family Court against the injunction. Before that appeal could be heard, however, the mother and her new husband applied to the High Court for the prerogative writs of certiorari and prohibition

against judges of the Family Court, putting the validity of the interlocutory injunction in issue. The application by the mother and her new husband was based on two grounds. They argued first that the FLA did not authorise the grant of an injunction restraining the adoption proceedings. The second ground was that to the extent that it purported to confer such a power, the Act exceeded the legislative power of the Commonwealth. 4.49 The question raised by this appeal was perhaps one of the most important and troublesome problems in the whole of the FLA, namely the delimitation of constitutional power as between state and Commonwealth as regards the ‘child of the marriage’. The broad definition originally given to that term in the FLA was an attempt to overcome the fragmentation in Australian family law that the Commonwealth faced when anxious to deal as comprehensively with children as its limited endowment of power permitted. The difficulty in Re LSH was this. If there is a child of a marriage, and the parents divorce and one subsequently remarries, then a new marriage is created. However, even if the parent who had entered the new marriage wanted to, or did, introduce the child into that marriage, the child did not, by that fact, become a child of that marriage. Following the rejection by the High Court of various attempts to cover this situation by the invention of de facto adoption so as to take the child into the new household, the weakness in the Act remained. It was only the power over legal adoption possessed by the states that could bring about the ‘transfer’, constitutionally speaking, of the child from the first marriage (into which it had been born) to the new marriage (into which it had been informally transplanted). 4.50 It is submitted that this constituted a logical anomaly. On the foregoing analysis, the child was always intended to be a ‘child of a marriage’ (emphasis added). The interposition of state

jurisdiction into this process of readjustment was an anomaly in that it took the child out of the supervision of the federal Act, and subjected it to the possibility of a different regime of rules between the two marriages. This could result in the introduction of different criteria from state to state, including variable standards in the provision of ancillary services such as counselling or child welfare facilities. The policy adopted by many courts has always been that the welfare of one child should as far as possible be overseen by the same judge or welfare worker. This was not possible under the ‘split regime’. [page 185] 4.51 The question as to the jurisdiction of the Family Court to deal with this problem had previously come before the Full Court in Marriage of Kent & Pigot.102 That decision was to the effect that the FLA provided such a power. Regrettably, this important constitutional question came before a Full High Court in Re LSH constituted of only five of the seven justices (Mason CJ, Wilson, Deane, Dawson and Gaudron JJ). The decision in Re LSH is nonetheless important, even though the referred state power in matters relating to children greatly reduces the importance of the concept ‘child of the marriage’.103 Since the reference of power legislation expressly excludes adoption as a referred power and the Commonwealth Act does not purport to assume it, the effect of the decision in Re LSH is probably academic at this stage. It is important, however, to note that the majority of the High Court opined that a law conferring jurisdiction on the Family Court to restrain — at the suit of a party to a marriage — an application to a state court for an adoption order regarding a child of that marriage by the parties to another marriage, would be valid as a law ‘with respect to’ marriage.104

Third parties and the ‘child of the marriage’ 4.52 The constitutional problems that arose in Russell v Russell105 (see 4.32) created a tension between federal and state powers that seemed likely to rein in severely the Commonwealth’s attempt to exercise a plenary jurisdiction in an area where it had been endowed with only limited powers. This would have been particularly unfortunate because the children who were caught in the middle of this power play were innocent victims of a situation that was about Commonwealth/state powers and not about the welfare of the child. 4.53 There were challenges as to the extent to which the Commonwealth could go beyond the parties to a marriage in dealing with a disposition concerning a child of the marriage. One would have thought that this is a subject that demands a liberal and non-legalistic approach because the welfare of children is not best served by a strict adherence to traditional legal rules and techniques of interpretation. Unfortunately, because of the distribution of powers under the Constitution, the power of the Commonwealth is circumscribed in this area and the content, as well as the administration, of legislation must take these limitations into account. The decisions challenging the Commonwealth’s power to deal with children involved the interpretation of s 61 of the FLA. Under that section, the Act set up a prima facie guardianship and custody regime for a child of a marriage. The [page 186] section (currently s 61C) vested these powers jointly in both parents, giving legal form to what might be regarded as the typical and desirable situation in a viable marriage relationship. The

statutory scheme is subject to any court order that might provide otherwise (eg where parties are separated or divorced). The power of the court to make orders in such a situation depended on whether it arose out of a marriage or was consequential on an order that had so arisen. Where a parent who was a party to a marriage had died or left the marriage, and third parties entered into the picture, complications set in. Three kinds of situations could exist in which the power of the Commonwealth became increasingly attenuated until it faded away altogether. These situations, all in relation to a child of a marriage, arose in proceedings first, between the parties to the marriage; second, between one of the parties to the marriage and a third party; and third, between two third parties (ie where both litigants were strangers to the marriage). 4.54 It would seem obvious that if both parties to the marriage are litigating about the child between themselves, then there is a question within the marriage power and possibly also within the matrimonial causes power. If, however, the litigation is between one party to the marriage and a third party, can it still be a matrimonial cause or arise out of the marriage? And does it make any difference if the other party to the marriage is dead or has disappeared, or merely does not seek any order? Yet one step further removed and at the other end of the constitutional spectrum is the situation where both parties to the litigation are strangers to the marriage. Should it make any difference whether there had or had not been a custody order under the FLA? 4.55 These were among the questions that were fought out in a long line of cases such as Dowal v Murray106 and Vitzdamm-Jones v Vitzdamm-Jones; St Clair v Nicholson.107 Vitzdamm-Jones established the following propositions. First, proceedings between the parties to a marriage for the custody of a child of that marriage were a matter to be dealt with exclusively in the federal jurisdiction

under the FLA. Second, once that jurisdiction had been exercised, any further proceedings concerning the matter had to remain in the same jurisdiction so long as those proceedings were between the parties to the marriage, or between one of those parties and a third party. It was sufficient for a party to the marriage to be joined in the proceedings even though the controversy was really between other parties, as happened in St Clair v Nicholson. If, however, the proceedings did not involve either party to the marriage, the matter would have lost the essential nexus relating it to either the marriage power or the [page 187] matrimonial causes power. This made it necessary to proceed under state legislation in a state court. Third, third parties could not intervene in proceedings if the parties to those proceedings had died, or where the proceedings had been concluded. They could, however, apply under former s 61(4)(b), provided the previous custody order was not a joint one but was in favour of the deceased parent. They might also institute a matrimonial cause under para (f) of the definition of matrimonial cause, provided the application was ‘in relation to “concurrent, pending or completed” proceedings’ in the nature of a matrimonial cause within any of paras (a)–(e) of the definition. These were some of the issues dealt with in the case. Another case that picked up some of the unanswered questions in Vitzdamm-Jones was Fountain v Alexander;108 and others that followed included Cormick v Salmon,109 V v V,110 Re Cook; Ex parte C111 and Re F; Ex parte F.112 It is not proposed to discuss these developments, as most of the issues raised there are no longer of practical significance in the day-to-day administration of family law.113

Wardship and the welfare jurisdiction of the Family Court

4.56 The wardship jurisdiction of the state Supreme Courts is an old one and was conferred on them upon their establishment being derived from the Court of Chancery in the UK. It was also called the parens patriae jurisdiction or, more recently, the parental jurisdiction. It arose from the fact that the Lord Chancellor in the UK, or a Supreme Court in the Australian context, was seised of a supervisory jurisdiction to safeguard the welfare of those unable to look after themselves. This jurisdiction also extended to the disabled, particularly the mentally challenged. The wardship jurisdiction was not always exercised in Australia to the extent that it was in England. Usually, questions as to a child arise in matrimonial causes disputes and are disposed of in that jurisdiction. The wardship jurisdiction was, prior to 1959, a matter within state jurisdiction. Since that time there has been a bifurcation, resulting in a dichotomy of jurisdiction. Drawing on the marriage and matrimonial causes powers, the wardship jurisdiction became a Commonwealth matter. However, matters relating to children who were not children ‘of a marriage’ remained outside federal jurisdiction. This dichotomy of legislative power with regard to children complicated matters where a child was in need of care and protection. There was largely [page 188] consensus that the residual wardship jurisdiction resided in the states and that the Commonwealth did not have it. 4.57 In view of the jurisdiction conferred on the newly created Family Court to make orders relating to the welfare of a child of a marriage under former s 64 of the FLA (now s 67ZC(1)), there seemed little scope for residual wardship jurisdiction to remain with the states. The federal jurisdiction was later extended by the referral of power over guardianship and custody of ex-nuptial

children by the states to the Commonwealth. As the terms of the referral of power to the Commonwealth are limited to guardianship and custody, however, a court cannot make an order under the welfare power in respect of an ex-nuptial child that does not fall within this scope:114 see further, 4.91 and 8.116. The question as to the scope of Commonwealth power was referred to in the 1990 Full Family Court decision Re Marion.115 That case concerned the question as to who had power to consent to the sterilisation of a minor. (For further discussion of this case, see 8.116ff.) When the matter raised in Re Marion came before the High Court in Secretary, Department of Health and Community Services v JWB & SMB,116 the court took the view that the Family Court had extremely broad powers under former s 64 in relation to the welfare of a child and that this was an independent head of power that did not have to rely on the then prevailing ‘cross-vested’ jurisdiction. The court’s jurisdiction as to welfare was extremely broad, encompassing wardship and parens patriae powers, and extending to the court’s control over all aspects of the welfare of children subject to its jurisdiction. 4.58 Marion’s case had arisen in a federal territory, so the question as to the wardship jurisdiction could not be fully tested as a possible conflict between a state and a federal power. In a territory, the question of state/Commonwealth powers and the degree to which they might impinge on each other cannot, strictly speaking, arise. It therefore needed a case from a state to test it and that was not long in coming. 4.59 That case was P v P117 in 1994, which dealt with similar facts to those in Marion’s case, but the legal situation was more complex because it arose in a state (New South Wales) and not in a territory. It involved the relative powers of a Commonwealth and a state agency, namely the Family Court and the then New South Wales Guardianship Board.118

[page 189] Specifically, the proposed treatment, if authorised by the Family Court, would contravene Pt 5 of the Guardianship Act 1987 (NSW), which established a legislative scheme for the administration of medical and dental treatment of incapable persons aged 16 years and over. In particular, stringent restrictions were imposed on treatment involving sterilisation. The New South Wales Act also required that the treatment be either authorised by Pt 5 (of the New South Wales Act) or that consent be given under that Part. 4.60 Specific questions were referred to the High Court as a case stated in the following terms. The answers given by Mason CJ, Deane, Toohey and Gaudron JJ (and McHugh J in a separate judgment) are stated under the relevant questions. 1.

Does the Family Law Act purport to confer on the Family Court the power to authorise the carrying out on a child of a marriage medical treatment in New South Wales that is intended, or reasonably likely, to render the child permanently infertile, in circumstances where the carrying out of the treatment would otherwise be contrary to the New South Wales Guardianship Act 1987? Answer: Yes.

2.

If yes to 1, is such purported conferral of power on the Family Court consistent with Ch III of the Commonwealth Constitution? Answer: Yes.

3.

If yes to 2, is such purported conferral a valid exercise of the legislative power of the Commonwealth Parliament? Answer: Yes.

4.

If yes to 3, except in cases to which [former] s 60H(2)(e) of the FLA applies,119 does that Act, by virtue of s 109 of the Commonwealth Constitution invalidate the Guardianship Act to the extent that the latter Act purports to prohibit or authorise a medical procedure to be carried out on a child of a marriage that is intended or reasonably likely to have the effect of rendering the child permanently infertile?

Answer: Yes, but only to the extent that s 35(1) of the Guardianship Act would prohibit medical or dental treatment authorised by a competent order of the Family Court.

[page 190] 5.

If yes to 4, will orders by the Family Court as sought by the applicant in this case provide a valid authority to a medical practitioner in New South Wales to carry out the procedure referred to? Answer: Yes.120

Both Brennan and Dawson JJ dissented and answered ‘no’ to question 1, saying it was unnecessary to answer the other questions.121 4.61 The majority judgment adhered to the answer given in Marion’s case, but pointed out two important qualifications. First, Marion’s case arose in the Northern Territory and therefore did not involve problems arising from the division of legislative powers between the Commonwealth and the states.122 Second, in Marion’s case the Northern Territory did not have any legislation regulating the carrying out of medical treatment involving sterilisation as in Pt 5 of the Guardianship Act 1987 (NSW).123 The majority therefore carried out an examination of the relationship between Pt 5 of the New South Wales Act and the provisions of the FLA that prima facie confer jurisdiction on the Family Court to make the kind of order involved in this case. The relevant conclusion was: The authorisation of medical treatment of an incapable child of a marriage (including of the kind in Marion and in this case) directly related to the protection of the child which arose out of, and was a relevant aspect of the marriage relationship … To the extent that the relevant provisions of Part VII of the Family Law Act confer jurisdiction to give or withhold such authorization they are a law with respect to marriage within s 51(xxi) … They are also directly concerned with the guardianship and custody of infants in relation to divorce and matrimonial causes within s 51(xxii).124

The judgment makes an important statement about the parens patriae jurisdiction (in the context of a ‘child of a marriage’): The relevant provisions of the Family Law Act … confer upon the Family Court a general welfare jurisdiction with respect to a child of a marriage … in circumstances such as those in this case. That jurisdiction corresponds with the traditional parens patriae jurisdiction. It is part of the judicial power of the Commonwealth.125

[page 191] 4.62 Brennan J’s dissenting view can be summarised in the following short paragraph at the beginning of his judgment: The starting point has to be the fundamental principle, plain and incontestable, that every person’s body is inviolate. If the welfare jurisdiction empowers the Family Court to form and to act upon an opinion that a non-consensual invasion of a child’s body is for the child’s welfare although the invasion is not necessary to save the child’s life or to save her from serious bodily harm, the judge’s order offends that fundamental principle.126

A passage near the end shows the logical basis for Brennan J’s stand. It is simply that the powers of the Commonwealth arise out of the marriage (and also the divorce and matrimonial causes) powers. He asks rhetorically: How can the question of a non-therapeutic sterilisation arise out of the marriage relationship?127

His judgment goes on to point out that: The parties to the marriage cannot authorise it, neither can an incompetent child. Even if one postulates that non-therapeutic sterilisation can be for the welfare of some children, the occasion for authorising the sterilisation of a child arises simply because the child is incompetent and nobody else has power to authorise the sterilisation. That ‘occasion’ does not arise out of a marriage relationship or because a child is a child of a marriage.128

4.63 Dawson J, who also rejected the power of the court to authorise the sterilisation, took a different line. He first made a distinction between a law and a court order. In doing so, he pointed out that the case was unlike orders made by the Australian

Industrial Relations Commission, which also made orders that could override state laws.129 His Honour answered that by pointing out that the Commission exercised arbitral, rather than judicial, power and its awards are given legislative force.130 Here, the orders of the Family Court must be exercised in accordance with both state and federal law. In other words, it is the Commonwealth law that may override an inconsistent state law, but not a court order made pursuant to such a law. Dawson J gave examples.131 For instance, he stated that the Family Court cannot make a custody order inconsistent with a state law for the imprisonment of juvenile offenders. Further, he stated that ‘[a] Commonwealth law freeing a [page 192] juvenile offender would not be a law with respect to marriage and a Family Court order purporting to do so would be invalid’.132 He went on to say that a state law of general application (about medical and dental treatment) has been made that applies generally and irrespective of any marital relationship. In particular, he stated: The Commonwealth Parliament has power to make laws with respect to marriage and thus for the welfare of children of a marriage where that aspect of their welfare is sufficiently connected with the marriage relationship. The parliament may confer upon the Family Court jurisdiction to make orders with respect to the welfare of children of a marriage only to that extent. It is in this way that a jurisdiction akin to a parens patriae jurisdiction had been conferred upon the Family Court. But the general words of Pt VII of the Family Law Act must be read down to bring them within constitutional limits. When read down, there is no inconsistency between Pt VII and the Guardianship Act. The jurisdiction of the Family Court with respect to the welfare of a child of a marriage does not extend to those matters placed under the regime established by the Guardianship Act.133

4.64 Importantly, P v P confirmed that as a matter of constitutional law there must be a sufficient connection between a

law dealing with the welfare of the children of a marriage and the marriage relationship. It comes down to how one looks at the question of the child’s welfare and its causal connection with the Commonwealth marriage power. In a wide sense, anything that happens to a child in a marriage relationship is ‘connected’ with the marriage. Taken more narrowly, the child’s physical welfare is covered by the state Guardianship Act and applies to all children, whether born in or out of marriage.

Testing the limits of the welfare jurisdiction 4.65 The precise limits of the Family Court’s welfare jurisdiction in respect of children were tested in the 2004 High Court decision of Minister for Immigration & Multicultural & Indigenous Affairs v B (No 3).134 This case addressed the requirement that there be a sufficient connection between the exercise of the welfare power and the marriage power and, more significantly in this case, directly addressed the need for the exercise of the welfare power to involve a determination of some immediate right, duty, privilege or liability. 4.66 Proceedings had begun in 2002, when two non-resident boys in immigration detention sought, through their mother as ‘next friend’, an order from the Family Court that they be released on the basis that detention was harmful to their welfare. [page 193] The application was brought under the Family Court’s welfare power, s 67ZC(1), discussed further at 8.116–8.125. The fact that these were ‘children of a marriage’ was obviously completely incidental to the question of the release of the children, who had been detained with their parents under federal migration laws.135 The application was unsuccessful at first instance; however, on

appeal, a majority of the Full Court (Nicholson CJ and O’Ryan J; Ellis J dissenting) found that the Family Court had jurisdiction to make such an order on the ground that s 67ZC was based on the marriage power.136 Nicholson CJ and O’Ryan J further found that even if the marriage power did not justify this exercise of jurisdiction, reliance could be placed on the United Nations Convention on the Rights of the Child 1989. Their Honours held that Australia’s ratification of this Convention, and its subsequent adoption into domestic law through the passage of the Family Law Reform Act 1995 (Cth), was an exercise by the Commonwealth of its external affairs power. This then broadened the application of s 67ZC to cover the present application. In subsequently holding the detention of these children to be unlawful, their Honours exercised what they believed was the broad parens patriae jurisdiction given to them. However, the Minister appealed successfully to the High Court (Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ).137 Although somewhat differing reasons were proffered for the finding, it was agreed that the power granted to the Commonwealth under s 67ZC was not a power at large in respect of the welfare of the children. Rather, the normal constitutional limitation that there should be the requisite connection to the exercise of federal powers applied. Federal legislative power is, after all, constitutionally constrained to enumerated matters. In that sense then, s 67ZC (regardless of the referral of powers) could not empower the Commonwealth to make orders binding on third parties simply on the basis that the orders proposed advanced the welfare of a child. For further discussion of this case, see 8.125. 4.67 The High Court’s decision in B (No 3) was subsequently summarised by the Family Court (O’Reilly J) as follows: … the High Court made clear that s 67ZC does not itself expressly give jurisdiction in respect of a ‘matter’ for the purpose of ss 75–77 of the Constitution in that it does not refer to any substantive rights, privileges, duties or liabilities or the

persons who can apply for or be made subject to an order under s 67ZC (Gleeson CJ and McHugh J at par 10); that s 67ZH confines the operation of s 67ZC to the parental responsibilities of the parties to a marriage for a child of the marriage (Gummow, Hayne and Heydon JJ at par 74); the ‘welfare jurisdiction’

[page 194] of the Family Court conferred by s 67ZC is not at large, and the High Court has not as yet articulated definitively the jurisdiction of the Family Court in respect of the welfare of a child (Gleeson CJ and McHugh J at pars 20, 21); whilst s 67ZC does not define the jurisdiction of the Family Court in respect of a ‘matter’, other provisions of the Act may supply the elements of a ‘matter’ (Gleeson CJ and McHugh J at par 22); and that the valid application of s 67ZC is therefore dependent upon some other provision in Pt VII of the Act creating a ‘matter’ within the meaning of ss 75 or 76 of the Constitution to which the jurisdiction conferred by s 67ZC can attach or be ‘inferentially linked’ to s 67ZC (Gleeson CJ and McHugh J at par 23).138

In B (No 3), Gleeson CJ and McHugh J clarified the factual distinctions in Marion’s case139 (see 4.57) which justified that decision. Marion’s case was a dispute between a parent and a representative of the child as to where the authority lay to authorise a sterilisation of that child. This question did relate to the substantive rights and duties of parents, precisely because the FLA gives parents those rights and duties. Moreover, it was noted that as the court’s jurisdiction was agreed in Marion’s case, the statements about the extent of the FLA’s welfare power were not intended to be exhaustive.140 4.68 The decision in B (No 3) has been described by the Full Court of the Family Court as posing ‘formidable difficulties’ for any attempts to rely on s 67ZC as conferring jurisdiction on the court to make orders binding on third parties whenever it would advance the welfare of the child to do so.141 In Secretary, Department of Health & Human Services v Ray142 (see 3.47), the Full Court (Bryant CJ, Finn and Ryan JJ) referred to the observation of Gleeson CJ and McHugh J in B (No 3): Nothing in s 67ZC, or in Part VII generally, imposes — expressly or inferentially —

any duty or liability on third parties to act in the best interests or to advance the welfare of a child.143

At first instance in Ray v Males,144 Benjamin J ordered that the Secretary of the Tasmanian department responsible for child protection be joined as a party [page 195] to parenting proceedings under the FLA. The proceedings concerned the future living arrangements for two children, a boy aged 15 and a girl aged nine, and were between the children’s father and his current partner as applicants, the children’s mother as respondent, and their paternal aunt as intervenor. Benjamin J’s concern was that, at the time of making final orders, there might not be any person or party suitable to care for and/or to be responsible for one or both of the children. The Secretary did not wish to intervene in the proceedings, was not willing to accept parental responsibility and would not consent to such an order. While acknowledging that B (No 3) established some limitations on the welfare jurisdiction of the court, Benjamin J distinguished the facts of the case before him because in this case there was a possibility that none of the present parties could be found to be able to be responsible for the children. He concluded: … it could not be the case that this court would simply wash its hands of a child in the hope that the Secretary would change his view and commence proceedings under the State Welfare laws. It must be that when all else fails courts exercising jurisdiction under the Act can vest parental responsibility in a delegate of a State Government to make that officer responsible for the child.145

The Full Court reversed the decision.146 Their decision was based on the High Court authority in relation to the scope of s 67ZC of the Act and the absence of any provision in Pt VII of the Act providing power to make parental responsibility orders in favour of a person who does not already have parental responsibility and who does not consent to accept such responsibility.

Ironically, by the time the appeal hearing commenced, the Secretary had been granted custody and guardianship of both children by orders made by the Hobart Magistrates’ Court pursuant to the Children, Young Person and Their Families Act 1997 (Tas). In spite of this development, the Full Court was satisfied that the appeal was not moot and therefore proceeded to determine the matter. By way of concluding remarks, the Full Court acknowledged the dilemma the trial judge faced, the cooperation that courts exercising FLA jurisdiction regularly receive from state and territory child welfare departments and agencies, and the resource problems such departments and agencies have. Notwithstanding these considerations, the court considered it necessary to observe that: … this case illustrates the need for continuing attempts to harmonise in some way the administration of State and Federal laws concerned with the welfare of children.147

[page 196]

Other proceedings between the parties 4.69 At common law, a husband and a wife could not sue one another because of the unity of person between them which the law assumed to exist. This ancient rule was abrogated some time ago. Progressive inroads had been made into it, commencing with the Divorce and Matrimonial Causes Act 1857 in the UK148 followed by important changes introduced by the Married Women’s Property Acts of 1870 and 1882, also in the UK, and culminating in the Law Reform (Married Women and Tortfeasors) Act 1935 (UK). In Australia, there has been legislation in various states.149 The Commonwealth has now legislated on this matter. Section 119 of the FLA declares that ‘either party to a marriage may bring proceedings in contract or tort against the other party’. The

assumption is that it is within its constitutional power to do so, in order to regulate a particular aspect of the legal rights and obligations between the parties in consequence of marriage, or at least as being ancillary to so doing. In as much as those rights and duties remain to be regulated by state law as at present provided under the Commonwealth Constitution, it has sometimes been suggested that s 119 is beyond power.150 On the other hand, the provision does no more than remove a procedural inhibition under the common law against the enforcement of legal rights and duties between husband and wife. As such, it seems a legitimate use of the marriage power to legislate on this matter.

Overcoming the limitations: first steps 4.70 When the FLA was introduced, there were early steps taken to overcome the limits on federal power to invest federal courts with jurisdiction over family law matters. These first steps saw state courts involved in the administration of Commonwealth legislation, and provision made for the creation of state family courts. These steps are considered in the following paragraphs. A number of bolder steps have been taken since the FLA was introduced with a view to overcoming the constitutional constraints under which the Commonwealth Parliament operates in legislating for family law. Not all of these bold steps, discussed at 4.81ff, have withstood challenge: the cross-vesting legislation regime fell foul of constitutional limitations. [page 197] 4.71 In relation to the territories, the Commonwealth of course retains its plenary powers and the problems arising from the federal/state dichotomy of power do not arise.151 However, the detailed administration of family law in the territories — other

than those matters covered by the FLA itself — is dealt with under territorial laws. The involvement of state courts in the administration of Commonwealth laws is a different matter. As we have seen, the Constitution makes provision for investing state courts with federal jurisdiction (s 77(iii)), a provision that was utilised as the exclusive means of administering the Matrimonial Causes Act 1959 (Cth): see 1.38 and 4.28. The various steps that have been taken to overcome the limits on federal power by conferral of jurisdiction on state and federal courts are now discussed below.

Involvement of the state courts 4.72 The FLA, in the main, relied on the newly created Family Court of Australia to administer the provisions of that Act. The state courts, invested with federal jurisdiction, have continued to play a part. Section 39 of the FLA invests the Supreme Courts of the states with jurisdiction to hear and determine matrimonial causes under the Act, as well as matrimonial causes instituted before the FLA but continued under that Act, and certain enforcement proceedings.152 That arrangement, however, was terminated by proclamation with effect from 1 June 1976 pursuant to s 40(3).153 The FLA also invested state courts of summary jurisdiction with jurisdiction to determine matrimonial causes, not being proceedings for principal relief.154 This jurisdiction can be terminated155 but it continues to be exercised,156 except in the metropolitan region of Western Australia (due to the setting up of the Family Court of Western Australia: see 1.48 and 4.116ff). In Western Australia, in addition to regional Magistrates’ Courts, there is a Magistrates’ Court housed in the Family Court of Western Australia’s premises, which is devoted solely to family law matters.157 The magistrates who preside over that court hold dual commissions as registrars.

[page 198]

State family courts 4.73 One of the most interesting innovations brought about by the FLA was the provision enabling state family courts to be set up.158 Where a state sets up such a court, this court may, by proclamation of the Governor-General, be brought within the provisions of the FLA subject to certain conditions. These are set out in s 41(4) of the FLA. First, the appointment of judges to a state family court must first have the approval of the Commonwealth Attorney-General.159 Second, they must ‘by reason of training, experience and personality, be suitable to deal with matters of family law and cannot hold office beyond the age of 70 years’.160 The third condition ensures that the state family court will have counselling facilities available to it.161 These conditions are designed to ensure that a state family court will, in all essential respects, function on similar lines to those of the Family Court of Australia. So far as the material conditions and facilities of the court are concerned, this represents no hardship to the state. It is envisaged that the arrangements for setting up a state family court will be made in pursuance of arrangements between the Commonwealth and the state, under which the Commonwealth ‘will provide the necessary funds for the establishment and administration of those courts’.162 4.74 Since the creation of the Family Court of Western Australia, no interest has been shown by any of the other states in following a similar course, and the time for any further extensions of such institutional autonomy in the field of family law can be said to have well and truly passed. 4.75 Until the relatively recent changes to the FLA in relation to the financial breakdown of de facto relationships (see 4.92, 4.103),

there were some advantages in the establishment of a system of state family courts. It was one way of minimising the disadvantages of the fragmentation of Australian family law occasioned by the imperfect distribution of powers in this area and the Commonwealth Constitution. State family courts could administer both federal and state family law, so that in any one state adopting this system, family law could be unified. Disparity could still remain, however, between the laws of the states. 4.76 One interesting provision relating to state family courts is the expedient of creating concurrent appointments of judges. This enables federal judges to hold state commissions and vice versa.163 The provision was inserted into the FLA by the Family Law Amendment Act 1976 (Cth) in order to reciprocate a converse [page 199] arrangement envisaged under the then Family Court Act 1975 (WA) and later the Family Court Act 1997 (WA), where all judges of the Family Court of Western Australia hold dual commissions: see 1.48.

The Family Court of Western Australia 4.77 Not long after the enactment of the FLA, and even before it commenced operation, Western Australia decided to avail itself of the provisions allowing the creation of a state family court. The reasons for doing so were: (1) to provide a single court of unified jurisdiction, administering matters of family law, both federal and state; (2) to enable the state to continue to exercise jurisdiction in family law matters which would otherwise have been removed into the Family Court of Australia, with the opportunity of retaining complementary action with other responsibilities in the areas of welfare and counselling services; (3) in the public interest to keep the administration of justice as close as possible

to the people it is designed to serve; (4) to obviate the creation of a further Commonwealth court in the state.164

4.78 The Family Court Act 1975 (WA) came into force on 1 June 1976.165 It was subsequently replaced by the Family Court Act 1997 (WA) and this Act came into force on 26 September 1998.166 4.79 The 1975 Act provided for the creation of the Family Court of Western Australia and this was continued under the 1997 Act.167 The court exercises both the federal jurisdiction vested in it by the FLA and non-federal jurisdiction as specified.168 The latter primarily relates to the parental responsibility, welfare and maintenance of ex-nuptial children. 4.80 As noted above, the Western Australian expediency of setting up a state family court under s 41 of the FLA has not been followed by any other state. In Western Australia, setting up the Family Court of Western Australia, which is invested with both state and federal jurisdiction, has ensured that all areas of family law in that state are dealt with by the same tribunal.169 [page 200] Just as the possibility of achieving uniformity in the laws of marriage and divorce commended itself to the founding fathers of the Constitution, so the increasing mobility and homogeneity of the Australian people makes it desirable that legislation affecting the family should be uniform throughout Australia. Unfortunately, the use of state courts as a solution to the limits of Commonwealth power cannot ensure a uniform approach in state matters of family law as between the different states. The states could, of course, enact uniform legislation in consultation with each other and the Commonwealth, as has happened in other areas of law in Australia. As it happens, however, Western Australia has followed the

federal law so closely that the provisions are largely identical. The Family Court of Western Australia has administered the FLA in conformity with guidelines set out by the Full Court of the Federal Court and by the High Court. There has been full interchange of judges between the Family Court of Western Australia and the Family Court of Australia. To all intents and purposes therefore, the existence of this state Family Court has not affected the administration of the law under the federal Act.

Overcoming the limitations: bold steps 4.81 As a device for overcoming jurisdictional problems in the Australian state/federal context, the investment of family law jurisdiction in state courts, while potentially a possible solution, has not commended itself to Australian parliaments. It would have constituted half a step backwards to the days of the Matrimonial Causes Act 1959 (Cth), when marriage and divorce came within the province of state parliaments and where uniformity of laws depended on political cooperation rather than one federal law. Instead, more imaginative devices entered the scene, which will now be considered. They are the devices of accrued jurisdiction, referral of power legislation of the states and the cross-vesting legislation. The first-mentioned was an exercise in judicial ingenuity borrowed from US jurisprudence, while the second and third could be regarded as examples of a ‘cooperative federalism’. A possible fourth solution, more radical than any of the others but much harder to achieve, would have been to confer plenary power over ‘family law’ on the Commonwealth by constitutional amendment. Given the difficulties that have always beset such a move and the uncertainties of political manoeuvring that this could have sparked, it seems that the pragmatic solutions that have actually been initiated may be all that is needed to pull this jurisdiction out of the danger of a constitutional impasse. 4.82

Constitutional problems did not arise before the entry of

the Commonwealth into this area when it enacted the Matrimonial Causes Act 1959. Commonwealth involvement has highlighted the undesirability of the kind of fragmentation that arises when an area of the law, which by its nature demands a uniformity [page 201] of treatment, is split up arbitrarily into different jurisdictions simply for reasons determined by the allocation of powers in the Commonwealth Constitution. Family law is not a large area of law; it should offer every opportunity for a unified approach but for these extraneous restraints. The Commonwealth, largely on the initiative of then Attorney-General, Senator Lionel Murphy, greatly enlarged the scope of its involvement in family law under the FLA. Even that enlargement would not have effected complete unification, but as a result of the decision of the High Court in Russell v Russell,170 the Commonwealth at first retreated somewhat from its earlier position. Fragmentation of the law on jurisdictional lines results in the possibility of differences of approach to similar problems. It may result in an unevenness in the development of facilities created for dealing with similar problems. It may lead to manoeuvring and the use of subterfuge as parties attempt to get themselves within a particular jurisdiction not otherwise open to them. These effects are likely to be unsatisfactory to anyone who is concerned that the best legal solutions and facilities should be available for dealing with problems that closely affect the happiness of so many families and, particularly, the children.

Associated and accrued jurisdiction 4.83

Section 33 of the FLA confers on the Family Court

jurisdiction in respect of matters that are ‘associated’ with the jurisdiction being exercised by the court. Similarly, s 18 of the Federal Circuit Court Act 1999 (Cth) confers associated jurisdiction upon the Federal Circuit Court. The term ‘associated’ jurisdiction is to be distinguished from ‘accrued’ jurisdiction. Referring to associated jurisdiction in R v Ross-Jones; Ex parte Beaumont,171 Gibbs J commented: The effect of this section is far from clear. It cannot be intended to mean, and would not be constitutionally valid if it did mean, that if the jurisdiction of the Court is unsuccessfully invoked it nevertheless has jurisdiction in associated matters. The section can only apply if the Court already has jurisdiction; its jurisdiction is then extended, so far as is constitutionally permissible, to associated matters.172

The fact that the jurisdiction conferred by the relevant provision only arises once the court’s jurisdiction is already properly invoked apparently limits its usefulness as a means of extending federal jurisdiction. The associated jurisdiction of the Family Court and the Federal Circuit Court is equivalent to the jurisdiction invested in the Federal Court,173 which has been held to invest jurisdiction only [page 202] in respect of associated matters that arise under Commonwealth law.174 As none of the relevant provisions invest the federal courts with jurisdiction in associated matters under state law,175 the importance of associated jurisdiction as a means of supplementing the jurisdiction of the family courts is further ‘diminished’.176 4.84 Accrued jurisdiction is a development that surfaced in the 1980s. It has played a greater role than associated jurisdiction in extending the jurisdiction of the Family Court. Accrued jurisdiction is explained by Barwick CJ in the 1981 case of Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd as follows:177

… when a court which can exercise federal jurisdiction has its jurisdiction attracted in relation to a matter, that jurisdiction extends to the resolution of the whole matter. This accrued federal jurisdiction is not limited to matters incidental to that aspect of the matter which has, in the first place, attracted federal jurisdiction. It extends, in my opinion, 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 which derive from a non-federal source.178

When the court’s accrued jurisdiction is invoked, a federal court is able to resolve the whole matter before it, even if part of the matter before it involves a dispute arising under non-federal law. The federal and non-federal matters that were involved in Philip Morris were, respectively, a claim under the Trade Practices Act 1974 (Cth)179 (now repealed) and an equitable action for passing off, which was a matter within state jurisdiction. In the result, the passing off action was held to be ‘part of the whole matter’ and thus within the accrued federal jurisdiction. This doctrine has been subsequently applied to the Federal Court by the High Court.180 In Stack v Coast Securities (No 9) Pty Ltd,181 Mason, Brennan and Deane JJ said that parliament had power under the Constitution ‘to give authority to federal courts to decide the whole of a single justiciable controversy of which a federal issue forms an integral part’.182 The ‘single controversy’ must be able to be distilled from the facts. [page 203] In Re Wakim; Ex parte McNally,183 the High Court drew on what was said in Fencott v Muller184 and concluded: What is a single controversy ‘depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships’. There is but a single matter if different claims arise out of ‘common transactions and facts’ or ‘a common substratum of facts’, notwithstanding that the facts upon which the claims depend ‘do not wholly coincide’. 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 either render the other otiose or necessitate its determination.185

4.85 For some time, doubts surrounded the question whether the Family Court has accrued jurisdiction. The High Court examined the accrued jurisdiction question in relation to family law in the 1986 case of Smith v Smith.186 The court had to consider the application of the accrued jurisdiction to the Family Court. The proceedings here were property proceedings and concerned a ‘maintenance agreement’ under s 87 of the FLA. In applying to the Family Court for the agreement to be approved, the wife also applied for approval of a release under the then Family Provision Act 1982 (NSW). This release was to be provided for by cl 7(a) of the deed of settlement. The clause purported to operate as a mutual release between the parties from any claims under the New South Wales Act (which had taken the place of the previous Testators’ Family Maintenance legislation concerning provisions to be made out of deceased estates). Any release from those provisions required the approval of the state Supreme Court under the relevant provision of the New South Wales Act.187 The questions raised, among others, in a case stated to the Full Court of the Family Court, related to whether the Family Court possessed accrued jurisdiction to make the order for the release that was within state jurisdiction. It was argued that because the provisions of the proposed deed dealing with release from the New South Wales Act were associated with the matters under the FLA, the Family Court had such accrued jurisdiction. The questions were removed into the High Court from the Full Court of the Family Court. Two questions were considered by the High Court. The first was whether, notwithstanding the relevant provision of the New South Wales Act, the release pursuant to cl 7 of the deed was effective because of s 109 of the Constitution,

[page 204] which gives precedence to a valid law of the Commonwealth over a conflicting law of a state. The second question was whether the Family Court had accrued jurisdiction, so as to enable it to exercise the powers of approval as contained in the relevant provision of the New South Wales Act. The High Court held that the purported release under cl 7 of the deed was not effective, notwithstanding its approval by the Family Court, and that the Family Court had no accrued jurisdiction to exercise the powers of approval as contained in the relevant provision of the New South Wales Act. 4.86 Despite the failure of the use of accrued jurisdiction in this case, several justices of the High Court subsequently expressed some support for its use by a federal court, particularly given the constitutional limitations in the use of cross-vested jurisdiction: see 4.93–4.104.188 In the 2001 Family Court case of Wade-Ferrell & Read,189 the Full Court (Lindenmayer, Finn and Morgan JJ), after commenting that the extent of accrued jurisdiction is yet to be ‘conclusively determined by any decision of the High Court or this Court’,190 stated: … if this Court does have accrued jurisdiction, then we think that this is a case in which the non-federal claim of the intervenor in respect of the improvements she effected in the matrimonial home of the husband and the wife was, in the context of this case, ‘attached to’ and ‘non-severable from’ both the claims of the husband and wife under s 79 of the Act for the orders in respect of that home, and the intervenor’s claim, for the payment to her of the debt of $63,000 owing by her to the husband and the wife. All three claims (the claims of the spouses under s 79, the claim by the intervenor in respect of the debt and the claim of the intervenor in respect of the improvement to the home) arose out of a ‘common substratum of facts’ (per Mason J in Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 33 ALR 465 at 504) and it was clearly just and convenient that all three claims be adjudicated upon in the same proceedings in the same court.191

4.87 While the Full Court in Wade-Ferrell & Read determined that it was not necessary to reach a definitive conclusion in

relation to the existence and extent of accrued jurisdiction, it was not so hesitant in the 2001 case of Marriage of Warby,192 where the Full Court (Nicholson CJ, Finn and Strickland JJ) stated: We have formed the view that as a matter of law, the Family Court of Australia is not restricted to the determination of a family law claim or proceeding; it may

[page 205] exercise accrued jurisdiction to determine the non-federal aspects of a justiciable controversy of which the family law claim or cause of action forms a part. The factual circumstances of the case will determine whether the jurisdiction arises and whether it is appropriate to exercise the jurisdiction.193

The Full Court listed seven reasons for reaching this view.194 1.

2.

3.

4.

5.

First, there is no constitutional basis for not applying to the Family Court the High Court’s analysis in the Philip Morris case195 (see 4.84) of how and why the Federal Court has and may exercise accrued jurisdiction. Second, the High Court has, in a number of decisions, implied that the Family Court has accrued jurisdiction just as the Federal Court does and, in particular, the High Court has not ruled to the contrary when it has had the opportunity to do so.196 Third, given that the Family Court and the Federal Court (that has an accrued jurisdiction) are both federal courts of limited jurisdiction created by statute, there is no basis of distinction between them on the question of accrued jurisdiction. Fourth, amendments to s 31 of the FLA (by the Family Law Amendment Act 1983 (Cth)) enlarged the court’s jurisdiction and defined it to cover matters ‘in respect of which matrimonial causes are instituted or continued’.197 Fifth, the court disagreed with judicial statements (such as those of Strauss J in Marriage of McKay)198 that rejected the application of accrued jurisdiction in the Family Court and

6.

7.

agreed with judicial statements in favour of its application (eg Nygh J in McKay and Evatt CJ in Smith & Smith (No 2)).199 Sixth, the court noted that it is given a number of wide general powers under s 80 of the FLA that Evatt CJ had referred to in Smith & Smith (No 2) in support of an accrued jurisdiction, and the High Court had made no adverse comment about those comments when that case came before it in 1986.200 Last, the Full Court noted that it is well settled that the Family Court has power in certain circumstances to make orders binding unwilling third parties (eg proceedings under s 106B of the FLA). [page 206]

The court then went on to consider in what circumstances accrued jurisdiction could be invoked.201 It viewed the following factors as relevant: 1.

what the parties have done;

2. 3.

the relationships between or among them; the laws which attach rights or liabilities to their conduct and relationships;

4.

whether the claims are part of a single justiciable controversy and in determining that question whether the claims are ‘attached’ and not ‘severable’ or ‘disparate’; and whether the claims are non-severable from a matrimonial relationship and arise out of a common sub-stratum of facts.202

5.

These factors go to the question of whether accrued jurisdiction is available in a particular matter. In the later case of Bergman v Bergman,203 the Full Court observed that once it has been determined that such jurisdiction does exist there is, at least as a general rule, no discretion not to exercise that jurisdiction.204 The Full Court in Warby also opined that accrued jurisdiction extends to the making of orders that bind third parties who refuse

to take part in proceedings.205 Following the introduction of Pt VIIIAA by the Family Law Amendment Act 2004 (Cth), the Family Court now has a wide jurisdiction to make orders that bind third parties: see Chapter 15. Accrued jurisdiction can be invoked to resolve whether property in dispute belongs to a third party or to the parties to the marriage; for example, where there is a dispute as to the existence of a trust or other beneficial interest in property. This jurisdiction continues to exist as an alternative basis for extending the reach of the remedial powers of the Family Court and parties may seek to invoke the court’s accrued jurisdictions when non-federal disputes arise.206 As Lee Aitken notes, accrued jurisdiction is particularly important in a family law context because: the multiplicity of personal and business relationships involved in a family law proceeding will frequently raise related questions of partnership, trust, company law, and contract which involve third parties, and which also fall to be determined, if they can be, in the original dispute.207

[page 207] 4.88 The case law is beginning to clarify the application and limits of accrued jurisdiction.208 In Whitehouse v Whitehouse,209 for example, the Full Court (May, O’Ryan and Stevenson JJ) held that in the absence of a dispute between the parties over which the Family Court had jurisdiction, no application relying on accrued jurisdiction could attach to a Family Court matter.210 In this case, an elderly husband and wife made an application for property settlement through their case guardians. Shortly afterwards, the husband died. The wife then amended her application and sought to invoke the accrued jurisdiction of the court, seeking a declaration that the husband and his successors held an interest in property in his name on trust. The wife then also died. The husband’s personal representative challenged the court’s jurisdiction to hear the wife’s amended application.

The trial judge concluded that the amended application was a matrimonial cause which could have been brought under s 78. As the wife had died, however, there was no dispute remaining between them over which the court had federal jurisdiction. The Full Court dismissed the appeal against the trial judge’s decision brought by the personal representatives of the wife. Although the provisions of s 79(8) allow for proceedings to be continued after the death of one party, after the death of both parties there is no federal jurisdiction on which an application can be based. In respect of the exercise of accrued jurisdiction in de facto property disputes, the existence of a de facto relationship is also a threshold requirement to the accrued jurisdiction of the family courts.211

Referral of power 4.89 The second development that occurred was even more significant in that it represented a recognition on the part of the states that the investment of the Commonwealth in matters of family by means of s 51(xxi) and (xxii) of the Commonwealth Constitution was incomplete. This led to a conscious handing over of constitutional power in relation to children. Section 51(xxxvii) has always provided for such a step. The section provides that a law thus referred will extend only to the particular state exercising this option. Under this provision, it is open to a state to refer to the Commonwealth any of its powers; for example, in the area of family law. No referendum is required and a simple majority in a state parliament is sufficient to achieve this purpose. Once referred, the matter becomes a matter of Commonwealth power, as if it had been included in s 51 of the Constitution. [page 208]

While the Commonwealth can then legislate under the referred power, there are two aspects that make such a manner of transferring power to the Commonwealth inferior to amendment of the Constitution. First, such legislation operates only in the state that has referred it, so that Commonwealth uniformity, which is desirable, operates only if all states agree to this device. Second, it is always open to a state parliament to revoke the referral (or reference) of power. There was at one stage a doubt in some quarters as to whether a state that had referred a power to the Commonwealth might subsequently not be able to revoke the referral and thus re-acquire the power it had handed over. This was based on some dicta in the High Court in the 1950s and 1960s, but the actual question never fell for decision. 4.90 The doubts finally gave way to the acceptance of the principle that the power to legislate on a given topic includes a power to amend or repeal. Five states — New South Wales, South Australia, Tasmania, Victoria (all in 1986) and Queensland (in 1990) — enacted legislation in substantially identical terms (the Commonwealth Powers Acts),212 preparatory to the coming into effect of the Family Law Amendment Act 1987 (Cth). Western Australia has not followed the other states but, in view of its unified jurisdiction, the same constitutional problems that arose in the other states have not arisen there. Since the FLA also applies in the Australian Capital Territory, the Northern Territory and Norfolk Island, the amending Act also applies in these jurisdictions. The legislation has the effect of referring state powers with respect to ‘guardianship, custody, maintenance and access’ in relation to ex-nuptial children to the Commonwealth, but leaves state jurisdiction to deal with adoption and child welfare intact. 4.91 The relevant state Acts are quite short. Section 3(1) refers to ‘(a) the maintenance of children and the payment of expenses in relation to children or child bearing; (b) the custody and

guardianship of, and access to, children’. Subsection (2) expressly exempts from the referral all matters relating to child welfare under the various Acts specified in the Schedule. The matters listed specifically include the jurisdiction of the Supreme Courts and other state courts to make orders concerning such children. The state Acts expressly preserve to the Governor (in Victoria and Queensland, to the Governor in Council) power to terminate the reference by proclamation. This possibility of revocation is also expressed in the referring provision in s 3(1), which expresses the reference to operate only until such date as may be specified in [page 209] a proclamation pursuant to s 4.213 No doubt the revocation provisions are designed to help remove the doubts discussed (see 4.89) concerning the ability of the states to reclaim a power once it has been referred. 4.92 The most recent use of the referral power was in the amendments to the FLA by the passage of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth):214 see Chapters 10 and 15. Western Australia has not referred power over de facto financial matters generally, but has referred certain superannuation matters arising out of the breakdown of de facto relationships to the Commonwealth with a view to the Family Court of Western Australia being invested with federal jurisdiction to deal with those matters.215 To date, the Commonwealth Government has not accepted this limited referral of power.

Cross-vesting of jurisdiction 4.93 The other innovation introduced in 1987, and ultimately unsuccessful to a large extent, was the uniform cross-vesting

legislation enacted by the Commonwealth, all the states and the territories.216 The Acts, in substantially identical form, all have the same title: Jurisdiction of Courts (Cross-vesting) Act 1987 (except the Australian Capital Territory Act, which is dated 1993).217 [page 210] 4.94 The purpose of this legislation is expressed in the preamble to the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) in the following terms: WHEREAS inconvenience and expense have occasionally been caused to litigants by jurisdictional limitations in federal, State and Territory courts, and whereas it is desirable — (a) to establish a system of cross-vesting of jurisdiction between those courts, without detracting from the existing jurisdiction of any court; (b) to structure the system in such a way as to ensure as far as practicable that proceedings concerning matters which, apart from this Act and any law of a State relating to cross-vesting of jurisdiction, would be entirely or substantially within the jurisdiction (other than any accrued jurisdiction) of the Federal Court or the Family Court or the jurisdiction of a Supreme Court of a State or Territory are instituted and determined in that court, whilst providing for the determination by one court of federal and State matters in appropriate cases; and (c) if a proceeding is instituted in a court that is not the appropriate court, to provide a system under which the proceeding will be transferred to the appropriate court.

4.95 Cross-vested federal jurisdiction is vested in state and territory Supreme Courts and, conversely, the federal courts are vested with the full jurisdiction of the state and territory Supreme Courts. The purpose of the scheme, according to the Explanatory Memorandum accompanying the federal Bill, expressed the hope: … that no action will fail in a court through lack of jurisdiction, and that as far as

possible no court will have to determine the boundaries between federal, state and territory jurisdiction.

Unfortunately, this hope was to be short-lived. Despite this purported ‘borrowing’ of jurisdiction, the scheme always intended that the courts would keep within their ‘proper’ jurisdictional fields. Consequently, the legislation provides for transfers between courts where it appears that proceedings have been launched in the wrong forum. According to the Explanatory Memorandum: The provisions relating to cross-vesting will need to be applied only in those exceptional cases where there are jurisdictional uncertainties and where there is a real need to have matters tried together in the one court … Courts will

[page 211] need to be ruthless in the exercise of their transferral powers to ensure that litigants do not engage in ‘forum-shopping’ by commencing proceedings in inappropriate courts.218

4.96 The material sections of the cross-vesting legislation are: s 3, the definition section; s 5, which deals with transfer of proceedings; and s 9, which deals with the exercise of jurisdiction. Section 3 defines the Family Court and the Federal Court. In short, the legislation provides for the transfer of proceedings from a state or territory Supreme Court to the Federal Court or the Family Court; from a Supreme Court of a state or territory to that of another; and from the Family Court or Federal Court to a state or territory Supreme Court. Section 3 confers jurisdiction on the court to which the proceedings are transferred to hear and determine the proceedings. 4.97 The construction of the cross-vested legislation was discussed in a number of reported decisions. A leading case is Re Chapman & Jansen,219 a 1990 decision of the Full Court of the Family Court of Australia (Fogarty J; Olney J concurring, Nicholson CJ dissenting). In his judgment, Fogarty J provides a

careful analysis of the cross-vesting legislation and its intent and scope.220 He held that where proceedings at the time of application for transfer contained only cross-vested claims, the proceedings should be transferred to the relevant state court unless, in a particular case, the interests of justice required it to continue to determination in the original court.221 The time to determine this was when the application for transfer was made. Where, at the time of application for transfer, proceedings were composed partly of Family Court and partly cross-vested claims, the question whether to transfer to the state court or proceed to determine in the Family Court was a matter of justice in each case. The question in each case was, which is the ‘natural forum’, or which court has the ‘most real and substantial connection’.222 4.98 Interestingly, the use of the cross-vesting scheme came in for some criticism by the Full Court in the 1997 case of Kennon v Kennon.223 Under scrutiny was its use in the context of domestic violence and, more particularly, the hearing of cross-vested proceedings for damages in conjunction with property proceedings under s 79 of the FLA. In their majority judgment, Fogarty and Lindenmayer JJ, [page 212] after noting the growing use of the scheme and the procedural advantages that exist, also commented that: … this practice also creates difficulties and produces results which overall may not be satisfactory. It involves the simultaneous hearing of two claims with different dynamics and which serve different purposes. It does not necessarily follow that this court will in all such cases consider it appropriate to adjudicate the cross-vested issue. It may consider that it is more appropriate to transfer the proceedings to a state court for determination.224

A similar caution was expressed by Baker J, who stated that in his opinion:

… it is preferable in most cases for domestic violence in a marriage to be taken into account as an element of contribution rather than for litigants to pursue damages claims for assault and/or battery in cross-vested proceedings from a state Supreme Court. Cross-vested claims for damages … are rather cumbersome proceedings which do not fit comfortably with litigation under the Family Law Act because of the necessary rigid nature of Supreme Court practice and procedure.225

4.99 From 1988 until 1999, the cross-vesting scheme overcame constitutional deadlocks that used to bedevil the Family Court’s jurisdiction. It was as ingenious as it was simple, but it ultimately proved to be unconstitutional, at least in part. The High Court finally examined the constitutionality of the scheme (in the context of corporations and bankruptcy law) in a number of cases in 1998 and 1999. In Gould v Brown226 the scheme survived a constitutional challenge, but the decision was a close one, with the court being equally divided.227 However, this was a short-lived victory for the scheme. In Re Wakim; Ex parte McNally,228 the High Court held that Ch III of the Constitution prevents the states from vesting jurisdiction in federal courts. Consequently, that part of the scheme that enabled federal courts to hear state matters (for example, the Family Court determining a claim under state-based de facto relationships legislation) was invalid. 4.100 In Re Wakim, the majority of the High Court (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ; Kirby J dissenting) found that the purported state-to-federal jurisdictional transfer or exercise of judicial power was [page 213] unconstitutional. The exercise of power was not within the Commonwealth’s incidental power229 and was clearly not ‘referred’ by the states.230 Put simply (and to paraphrase the words of Gummow and Hayne JJ; Gleeson CJ and Gaudron J agreeing), it is the Constitution itself that gives the federal courts their power

and not some cooperative scheme invented by the federal and state legislatures.231 4.101

In his judgment, McHugh J commented that:

Because the Court was equally divided in Gould v Brown, the decision in that case creates no ‘binding authority’ in this Court. Having read and listened to the arguments of the parties and the interveners in these proceedings, I am just as convinced now as I was when Gould was decided that, consistently with the Constitution, the Corporations Act 1989 and the Corporations (New South Wales) Act 1990 are invalid insofar as they purport to give the Federal Court of Australia jurisdiction to exercise State judicial power. For the reasons that I gave in Gould, I am also convinced that the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) and the Jurisdiction of Courts (Cross-vesting) Act 1987 of each of the States are also invalid insofar as they purport to give the Federal Court of Australia jurisdiction to exercise State judicial power.232

His Honour was not blind to the reality that the partial demise of cross-vesting would cause: It would be very convenient and usually less expensive and time-consuming for litigants in the federal courts if those courts could deal with all litigious issues arising between the litigants, irrespective of whether those issues have any connection with federal law. From the litigant’s point of view that is saying a great deal. But unfortunately, from a constitutional point of view, it says nothing … The inability of the federal courts to exercise cross-vested State jurisdiction in the manner provided for under the present legislation simply shows another deficiency in the system. I do not think that it can be seriously doubted that, if Australia is to have a system of federal courts, the public interest requires that these courts should have jurisdiction to deal with all existing controversies between litigants in those courts.233

4.102 Not all aspects of the cross-vesting scheme fell foul of the High Court’s decision in Re Wakim. Transfers of federal matters (and territory matters) can still be validly transferred to a state court under the scheme. Additionally, a vesting of jurisdiction between the Commonwealth and the territories is permissible. [page 214] The issue of a transfer of jurisdiction from the states to a territory

court was not considered in either Gould v Brown or Re Wakim. 4.103 In addition to its impact on corporate law, the partial demise of the cross-vesting scheme had an immediate effect on Australian family law. While the former was swiftly remedied by a reference of powers by the states to the Commonwealth, the latter has proved more difficult to solve. Many family law matters now needed to be resolved in both a federal and a state court. Of immediate relevance was the reality that cross-vesting had allowed de facto couples to seek orders in the Family Court to resolve both parenting disputes (federal jurisdiction) and property disputes (state jurisdiction). This problem has since been resolved by the states referring their powers over de facto relationships that have broken down to the Commonwealth, and the resultant amendments to the FLA (by the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth)): see Chapters 10 and 15. Nevertheless, many other procedural benefits that cross-vesting provided to family law litigants have now been lost. 4.104 Following the decision in Re Wakim, the six states each passed an Act entitled Federal Courts (State Jurisdiction) Act 1999. The effect of the legislation was to designate as relevant ‘state judgments’ all ‘ineffective judgments’ made by a federal court (such as the Family Court) under the cross-vesting scheme. To the relief no doubt of some litigants, this remedial legislation was held to be effective by the High Court in Re Macks; Ex parte Saint.234

Domicile and the basis of jurisdiction 4.105 In order for the Commonwealth Parliament to confer jurisdiction on courts to exercise jurisdiction to enforce laws with respect to marriage and matrimonial causes, a connection must be established between Australia and the person to whom the law

applies. In modern UK law, the connecting factor between a person and the jurisdiction of the courts of a particular country to determine matters of personal status (pre-eminently matters of family law) has been the domicile (or domicil) of the person. This has been so since at least 1895.235 Not all countries, however, have adopted this principle. Many legal systems in modern times have preferred to select nationality, rather than domicile, as the connecting factor. In others, the personal status has [page 215] been dependent on religion or race. In Australia, the states, and at first the Commonwealth, followed the UK approach in this matter. Domicile was traditionally described as the place where a person had their legal home. This was not necessarily the same thing as residence. The person could have a residence in several places; they might carry on business in one and divide the rest of their time between two or more others, maybe in more than one country. The concept of residence was further refined by the creation of a distinction based on ‘habitual residence’.236 Both the concept of ‘domicile’ and ‘residence’, however, at times created certain difficulties of application. 4.106 At common law, a person acquired a domicile on birth. This was known as the domicile of origin. It was the domicile of the person’s father or, in the case of a posthumous or ex-nuptial child, of the mother. Until the child attained the age of majority, the domicile of the father (or the mother as the case may be) continued to apply. On marriage, a woman acquired the domicile of her husband and was incapable of changing it unilaterally during her marriage. On attaining the age of majority, a person other than a married woman became capable of adopting a domicile of choice, and

could change their domicile of origin to a domicile of choice. To determine whether the person had done so, the circumstances had to be examined. Obviously, matters such as actual residence and intention were circumstances from which such a change of domicile could be inferred. The residence, it seems, prima facie had to be intended to be permanent. The actual length of residence did not, of itself, necessarily determine the question whether a change of residence imported a change of domicile also. Nor were statements as to intention accepted as conclusive evidence to give effect to such a change. What was more important was whether the conduct of the person in question was referable to the choice of a particular place. A court would have regard to conduct such as owning a house or other real estate, conducting a business or practising a profession in a particular place, or becoming naturalised as indicating a choice of a country other than the country of origin as the domicile of choice. There was an important difference between domicile of origin and domicile of choice, and that was the tenacity of the former. If a person abandoned their domicile of choice, then unless or until they established another, that person automatically reverted to their domicile of origin. That result followed as a matter of law, regardless of any intent to do so, or of whether the person even set foot in the country of their domicile of origin. 4.107 The general rule under the Matrimonial Causes Act 1959 (Cth) was that proceedings for dissolution or nullity of a voidable marriage could be instituted only by a person with an Australian domicile. The person had to be either [page 216] domiciled or resident to take proceedings for nullity of a void

marriage, judicial separation, restitution of conjugal rights or jactitation of marriage.237 That rule was modified so as to remove the hardship it could cause in the case of a deserted wife whose husband had left Australia. Since she still held her husband’s domicile, she would have been precluded from applying for matrimonial relief in an Australian court, with the consequential expense of having to resort to the court of her husband’s domicile. This would probably have required her to travel overseas to present her case. The rule was therefore modified in two ways. A deserted wife who had been domiciled in Australia immediately before her marriage or the desertion was deemed to be so domiciled for the purposes of any proceedings under the Matrimonial Causes Act 1959.238 Additionally, a wife who had been resident in Australia for three years immediately before bringing proceedings under the Act, and who was still so resident at the time, was likewise deemed to be domiciled in Australia.239 4.108 The FLA made considerable changes in these jurisdictional rules. Since the 1969 case of Indyka v Indyka,240 the principle of real and substantial connection with a country has tended to overshadow the principle of domicile in that country as the sole connecting factor. Indyka dealt with the recognition of foreign judgments, but it is submitted that its influence went beyond that particular topic. At all events, jurisdiction under the FLA became dependent on the following factors. Any proceedings under paras (a)–(e) of the definition of matrimonial cause in s 4(1) of the FLA could be taken under the Act if either party to the marriage was an Australian citizen. If the proceedings were for dissolution of marriage, jurisdiction also existed if either party was domiciled in Australia or was, and had been, ordinarily resident in Australia for one year immediately preceding the institution of proceedings.241 If the proceedings were not for dissolution of marriage but were otherwise proceedings under paras (a)–(e) of the definition of matrimonial

cause, jurisdiction also existed if either party was present in Australia or, where the proceedings related to a child of the marriage, if the child was present in Australia.242 The same applied where the parties to proceedings were not parties to the marriage to which the proceedings related. Under provisions of the Family Law Amendment Act 1987 (Cth), s 39(4) was simplified and widened by making ordinary residence or presence the relevant connecting factor in all cases, except for divorce and nullity proceedings. That paragraph referred to proceedings between the parties to a marriage, or validity [page 217] proceedings, in which case the criteria of citizenship, ordinary residence or presence in Australia continued to apply. Consequently, the dominant principles for jurisdiction in contemporary matrimonial causes are citizenship and residence, rather than domicile, although domicile and presence in the jurisdiction are still relevant for some purposes. Other rules apply to the question of recognition of overseas decrees.243 4.109 There can be no doubt that the Commonwealth has power to make rules as to domicile and other jurisdictional factors, as being incidental to providing for the setting up of a jurisdiction to enforce laws with respect to marriage and matrimonial causes. However, it should be borne in mind — for example, in relation to domicile — that any domicile created or recognised under the Marriage Act, the Matrimonial Causes Act or the FLA is domicile for the purposes of these Acts only. A person may therefore have Australian domicile in this context, and yet be domiciled in a particular state for the purpose of a law of that state. 4.110

Uniform legislation by both the Commonwealth and the

states and territories has now abolished the principle of dependent domicile of married women. It has also abolished the revival of the domicile of origin, and fixed the age of capacity for having an independent domicile at 18 years. In addition, the legislation clarifies the dependent domicile of children in cases where the parents live separately and apart. The child will, generally speaking, follow the domicile of the parent with whom the child has their principal home.244 The result is to bring about uniform rules designed to avoid a situation in which a person might have a certain domicile for one purpose or in relation to one jurisdiction, and a different domicile in relation to another. This has always been a problem in a federation such as Australia, quite apart from difficulties in an international context. One of the most interesting provisions of the Domicile Act 1982 (Cth) deals with a ‘federal’ problem that could arise where an immigrant decides to settle in Australia and does so, but because of the migratory nature of their work does not at the same time acquire a domicile in any particular state or territory for the purpose of state or territorial law. The Act provides that, in such a case, a person is domiciled in that state or territory ‘with which he has for the time being the closest connection’.245

The Family Courts 4.111 Chapter 1 referred to the creation and structure of the Family Court of Australia: see 1.44–1.48. Earlier in this chapter, we saw that, in addition to the [page 218] Family Court of Australia, there are state courts that exercise

federal jurisdiction over family law proceedings in some circumstances: see 4.72. Since the creation of the Federal Circuit Court of Australia246 in 1999 (see 4.114–4.115), federal jurisdiction over family law proceedings has also been vested in that court. The FLA confers federal jurisdiction over a range of matters on these courts, at times referred to collectively as ‘the family courts’. Section 39 confers jurisdiction in ‘matrimonial causes’ (defined in s 4(1)) on specified courts. In the chapters that follow, reference is made to the specific provisions of the FLA that confer the relevant jurisdiction. For example, the matrimonial causes for proceedings between the parties to a marriage or by the parties to a marriage for a divorce order or a decree of nullity (s 4(1)(a)), or for a declaration as to the validity of marriage (s 4(1) (b)), are considered in Chapter 6. In relation to property proceedings, ‘matrimonial causes’ (for proceedings between the parties to a marriage) and ‘de facto financial causes’ (for proceedings between de facto parties) are considered in Chapter 12. Jurisdiction over matters arising under Pt VII of the FLA is conferred by s 69H, which is considered in Chapter 8. 4.112 There are a number of additional requirements that must be satisfied in order to establish that the court has jurisdiction under the FLA to hear and determine a matter. These requirements vary depending on the nature of the proceedings and are referred to in each of the chapters of this book where they are relevant. In the discussion of domicile above, the principles by which a sufficient connection is established between an applicant and the court were identified. For example, in proceedings in which orders are sought by parties to a marriage and in validity proceedings, there are prescribed criteria of citizenship, ordinary residence or presence in Australia: see Chapter 6. In proceedings in relation to a de facto relationship, there are geographical requirements that must be satisfied before a court has jurisdiction to make orders relating to maintenance (s 90 SD): see Chapter 10. There are also time limits within which proceedings under the FLA (in particular,

financial proceedings) must be commenced (s 44), which are referred to in the relevant chapters of this book.

The Family Court of Australia 4.113 As discussed in Chapter 1, the FLA set up the Family Court of Australia as a federal superior court of record, consisting of a Chief Justice, Deputy Chief Justice, and other judges.247 The Family Court has an appeal division and a general division, with an original and an appellate jurisdiction. The Family Court [page 219] has jurisdiction in all matters under the FLA, and in most matters under the Marriage Act 1961 (Cth). The Act applies to the federal territories (the Australian Capital Territory and the Northern Territory), and to Norfolk Island, Christmas Island and the Cocos (Keeling) Islands.248 The Commonwealth Parliament has plenary powers over territories by virtue of s 122 of the Constitution. Accordingly, the jurisdictional limitations to which the Family Court is subject by reason of the Constitution, discussed above, do not apply. The Family Court’s jurisdiction in these territories (other than the Northern Territory) extends to matters that would require a referral of power by a state, including adoption and the status of an ex-nuptial child.249

The Federal Circuit Court of Australia 4.114 Notwithstanding attempts over the years to make the Family Court of Australia’s processes simple, there were still concerns about the complexity of proceedings, time delays and costs. In the late 1990s, the Howard Government decided that simple matters of federal jurisdiction, including family law

matters, would be better dealt with in a new, lower-level federal court. The Federal Circuit Court250 was established under the Federal Circuit Court Act 1999 (Cth) and commenced operation in July 2000.251 It is a separate court of record established under Ch III of the Constitution. The judges in the Federal Circuit Court are considered equivalent in status to judges in state District or County Courts. Although the court historically used the infrastructures of the Family Court and the Federal Court, the Federal Court now administers a single federal courts infrastructure.252 4.115 The family law jurisdiction Federal Circuit Court is concurrent Court.253 The Federal Circuit Court jurisdiction in any family law area, 2003, all divorce applications must be Court.254

that is conferred on the with that of the Family does not have exclusive although since November filed in the Federal Circuit

[page 220] Where there are more complex matters filed in the Federal Circuit Court, they can be transferred to the Family Court and, similarly, there are provisions for the transfer of less complex matters from the Family Court to the Federal Circuit Court.255 The Chief Justice of the Family Court and the Chief Judge of the Federal Circuit Court have published a ‘protocol’ for the guidance of the legal profession and litigants, so as to enable matters to be directed properly to the court appropriate to hear them.256 The protocol may on occasions give way to the imperatives of where a case can best be heard, and is not intended to constrain the discretion of a judicial officer having regard to the applicable legislation and the facts and circumstances of the case.257 As a general rule, if judicial resources permit, matters should be filed and/or heard in the Federal Circuit Court.258 However, if any one

of the following circumstances applies, then the application for final orders ordinarily should be filed and/or heard in the Family Court: 1.

International child abduction.

2. 3.

International relocation Disputes as to whether a case should be heard in Australia.

4.

Special medical procedures (of the type such as gender reassignment and sterilisation). Contravention and related applications in parenting cases relating to orders which have been made in [Family Court] proceedings; which have reached a final stage of hearing or a judicial determination and which have been made within 12 months prior to filing.

5.

6.

7. 8.

Serious allegations of sexual abuse of a child warranting transfer to the Magellan list [see 3.54] or similar list where applicable, and serious allegations of physical abuse of a child or serious controlling family violence warranting the attention of a superior court. Complex questions of jurisdiction or law. If the matter proceeds to a final hearing, it is likely it would take in excess of four days of hearing time.259

Proceedings cannot be instituted in one court if there is an associated matter pending before the other court.260 There is no power to transfer applications between the Federal Circuit Court and a state or territory court of summary jurisdiction. [page 221] Since Western Australia already has its own Family Court, the Federal Circuit Court in that state does not hear family law matters.

The Family Court of Western Australia 4.116 On the commencement of the FLA on 5 January 1976, the Family Court of Western Australia was established by the government of that state. As discussed at 4.73, s 41 of the Act

enables any state to establish its own state family court, at the expense of the Commonwealth,261 but only Western Australia has taken up the option. The court is presided over by a Chief Judge who has the status of a Supreme Court judge, and other judges who have the status of District Court judges.262 The qualifications of these judges are similar to those of judges of the Family Court of Australia.263 There is the further provision for a retirement age of 70 years.264 Western Australian legislation also provides that in its non-federal jurisdiction the court shall apply principles similar in their terms to those expressed in s 43 of the FLA.265 4.117 The Western Australian Act introduced an innovation whereby judges of the Family Court of Western Australia should be able to hold dual or concurrent appointments as judges of the Family Court of Australia.266 The provision was reciprocated under amendments effected by the Family Law Amendment Act 1976 (WA).267 It enables judges of the Family Court of Western Australia to share in the appellate work of the Family Court of Australia. Appeals in relation to federal jurisdiction are governed by the FLA and lie to the Family Court of Australia. Where an appeal from the Family Court of Western Australia concerns a matter of state jurisdiction, the appeal lies to the Western Australian Supreme Court of Appeal. 4.118 The Western Australian Act also provides for the appointment of acting judges.268 The expedient of appointing acting judges is common enough in state courts, but was never available to the Commonwealth because it was incompatible with life tenure. The advantage of appointing acting judges lies in being able to deal with temporary backlogs and arrears of work, while not increasing the membership of the bench on a permanent basis. [page 222]

Appeals The nature of appeals 4.119 Much of the jurisdiction of the family courts is discretionary. This has been one of the grievances of many who have been affected by its decisions: that it was difficult or impossible to predict what the court was going to do, for instance in a property matter, because of the very flexibility of its jurisdictional guidelines. This is one of the characteristics of common law jurisdictions. A statute (such as the FLA) will lay down some general guidelines and leave it to the court to deal with particular cases according to the circumstances of the case. The well-known American jurist Roscoe Pound has pointed to the complexity of modern life and the variability of its circumstances, which make it impossible to attempt to reduce to a body of strict legal rules the prescriptions that it is necessary or desirable to apply to human conduct in all possible situations.269 As Pound has also said, ‘the common law is always found and made with reference to actual controversies. It is not declared in the abstract except in relatively rare cases by legislation’.270 4.120 Appeals have sometimes been characterised as falling into two classes. One is simply a rehearing provided by statute, as in the case of appeals from courts of summary jurisdiction. The other is an appeal on questions of law. This is the kind of appeal that may be heard by the High Court or the Full Court of the Family Court. Many of these involve weighty legal arguments and are reported in law reports. In an appeal (other than one from a court of summary jurisdiction), the FLA provides that the Full Court must ‘have regard to the evidence in the proceedings out of which the appeal arose and has power to draw inferences of fact and, in its discretion, to receive further evidence upon questions of fact’.271

In interpreting the potential to allow fresh evidence, a majority of the High Court has confirmed that the Full Court must still be satisfied that an error exists, and it is not open to the Full Court to exercise its discretion on the basis that a new trial could or might result in a different order.272 Among the most important grounds of appeal are appeals against the exercise of a judge’s discretion. Many provisions of the FLA require an exercise of discretion by the judge. The classic view of the judicial function is that it consists of finding the facts, ascertaining the relevant law and then applying the law to the facts as found. If the judge gets the law wrong, then there is normally a fairly straightforward case of error of law. However, in most cases the process depends [page 223] on the judge’s perception, not only of the facts, but also as to the application of the law to the facts. 4.121 Legislation normally spells out, with as much precision as possible, what the legislature intends a court to do in a particular set of circumstances. Unfortunately, it is often not possible to anticipate in detail the great variety of human experience. A better alternative to attempting to specify in detail the many situations that may be encountered is to leave as much as possible to the judge, laying down only a set of prescribed considerations. The judge then has a discretion as to the course that the court should adopt, provided those considerations are taken into account. A good example of a legislative provision of this kind occurs in s 65D(1) of the FLA in relation to parenting orders, where the court is given power to make such parenting orders ‘as it thinks proper’. However, this power is ‘subject to this Division’: Pt VII Div 6. Thus the power is not at large. The fact that the court ‘may’ make such orders indicates that an exercise of discretion is involved. Other

examples, dealing respectively with maintenance and property, are ss 74 and 79 of the Act. 4.122 Accordingly, a great deal of discretion is left to the judge when dealing with a particular matter. Human perception is variable, and in many situations some latitude must exist in assessing a particular problem. Judge A may come to a particular solution, and Judge B to a somewhat different one, but there may be a degree of latitude as to the differences between them before it can be said that one or other decision is actually wrong. It is nevertheless essential for a mechanism to exist whereby erroneous decisions can be rectified. To take into account any legitimate variations between the decisions of different judges, appellate courts have devised rules to enable this to be done. A number of leading cases have laid down the details of this mechanism.273 The leading Australian case on this subject is House v The King:274 see 4.124. 4.123 It is well established that an appellate court cannot simply substitute its decision in place of the decision that has been appealed. To reverse a decision on appeal, it is necessary to show that the primary judge made an error, and to demonstrate what that error was. However, it is not always possible to demonstrate precisely where the error complained of lies. To deal with this situation, the appellate courts have devised an ingenious formula. If the decision under appeal is so manifestly or obviously unjust that the court below must have made a mistake, even if the precise nature of the mistake cannot be identified, an appellate court may overturn it and substitute [page 224] its own judgment for that of the court below, or return it to the

court below with a specific direction. This latter expedient is appropriate where additional facts are required to be ascertained. 4.124 The principles involved were well described by the High Court in the 1936 case of House v The King275 in the following terms: The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error had been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.276

These principles also govern the family law jurisdiction. The above passage from House was cited by the Full Court of the Family Court in the 1976 case of Sanders v Sanders.277 It should be added that in relation to children, the overriding principle is always the welfare (or the best interest) of the child.278 Thus, it is suggested, whether the principles in House can or cannot be satisfied, if the child’s best interest demands a different approach, it must influence the course that an appellate court should pursue. 4.125 In the 1984 case of Mallet v Mallet,279 the High Court discussed the principles to be followed in appeals. An earlier High Court decision, Lovell v Lovell,280 was cited. Discussion in that case considered whether no weight, or no sufficient weight, had been given to relevant considerations by the primary judge. [page 225]

Even if there had been no exclusion of relevant considerations, or an admission of irrelevant considerations, an appellate court would interfere if no adequate weight had been given to those relevant considerations, amounting to a failure to exercise the discretion entrusted to the court.281 Norbis v Norbis282 provides a most helpful discussion of the principles involved in exercising a discretionary jurisdiction and the development of judicial guidelines. Commenting on House, the High Court (Mason and Deane JJ) discussed the meaning of ‘discretion’: Here the order is discretionary because it depends on the application of a very general standard — what is ‘just and equitable’ — which calls for an overall assessment in the light of the factors mentioned in s 79(4), each of which in turn calls for an assessment of circumstances. Because these assessments call for value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right, the making of the order involves the exercise of a judicial discretion. The contrast is with an order the making of which is dictated by the application of a fixed rule to the facts on which its operation depends.283

These principles, summarised by Warnick J in G v G,284 have been described more recently by the Full Court (Finn, May and Murphy JJ) in Norman v Norman285 as ‘well settled, and of long standing’.286 Norbis also raised the question of the extent to which superior appellate courts can create ‘binding rules’ or ‘legitimate guidelines’ that limit, or guide, the exercise of discretion. Consistency in decision-making — even where a discretion is being exercised — is highly desirable and rules or guidelines would assist in this regard. For this reason, a majority of the High Court (Mason, Deane and Brennan JJ) held in Norbis that ‘legitimate guidelines’ are permissible. However, the question of the existence and application of such guidelines has proved to be a difficult matter.

Full Court of the Family Court of Australia 4.126

A Full Court consists of three or more judges of the Family

Court of Australia. Since the 1983 amendments, the Family Court has been organised into two Divisions, the Appeal Division and the General Division.287 The membership of the Appeal Division includes the Chief Judge, the Deputy Chief Judge and any other judges assigned by the Governor-General.288 The [page 226] principles under which the Full Court deals with appeals were discussed earlier in this chapter: see 4.120–4.125.

Appeals from the Federal Circuit Court of Australia (and the Magistrates Court of Western Australia) 4.127 Section 94AAA provides that an appeal lies to the Family Court from a decision of the Federal Circuit Court and also from a decision of the Magistrates Court of Western Australia constituted by a Family Law Magistrate. Appeals from the Federal Circuit Court and the Magistrates Court of Western Australia may also be heard by a single judge where the Chief Judge considers it ‘appropriate for the jurisdiction of the Family Court’.289 While this is often done in appeals from interim decisions, appeals from the Federal Circuit Court are now generally heard by a Full Court constituted by three judges. If a single judge has exercised appeal jurisdiction, there is no further appeal available from that decision.290 Section 96 of the FLA provides that appeals lie from a decree of a court of summary jurisdiction to the Family Court. Such appeals are in fact heard by a single judge of the court. An appeal from a court of summary jurisdiction proceeds ‘by way of a hearing de novo’, but the court may receive any record of evidence given, as well as affidavits and exhibits received in the court below.291

On determining the appeal, the court may affirm, reverse or vary the decree being appealed.292 Similarly, where an appeal from the Federal Circuit Court is determined, regardless of whether it was determined by a single judge of the Family Court (sitting as the Full Court) or the Full Court itself, the court may affirm, reverse or vary the decree or decision being appealed and may also order a rehearing if appropriate.293 Although the 1982 Full Court decision in Robinson & Willis294 was unanimous, there were some conflicting dicta as to the nature of an appeal from a court of summary jurisdiction under s 96. Asche J commented that the word ‘appeal’ (as used in s 96) is capable of different meanings. His Honour referred to the 1931 High Court decision in Victorian Stevedoring & General Contracting Co Pty Ltd & Meakes v Dignan,295 where ‘appeal’ was used in three different senses: first, rehearing; second, review of a question of law; and third, review of facts as well as law relating to the materials before the court below. Asche J pointed out that ‘rehearing’ also had two different meanings.296 The first meant that there was a review of all the evidence, but no fresh evidence [page 227] was taken. Section 94 appeals to the Full Court from a single judge fell into that category. Such an appeal of course also involves questions of law. The second meaning referred to a complete rehearing de novo, as provided in s 96. The notice of appeal in effect wipes the slate clean. The judge hearing the appeal is to be in exactly the same position as was the court appealed from, and decides the matter on the basis of all the evidence given at this level. Counsel can, of course, make legal submissions, but these may or may not be the ones used at first instance.

Fogarty J, while agreeing with the decision, took a somewhat different view of the nature of a rehearing, namely that it ought not to be characterised as an appeal, but as a process enabling a party to have a second chance of a hearing on the merits.297 Nothing, it is suggested, turns on these distinctions, which were only raised because the original order had been made by consent.

Appeals from the Family Court of Australia and the Family Court of Western Australia (or a state and territory Supreme Court) 4.128 Under s 94 of the FLA, appeals from a single judge of the Family Court, or of a family court of a state (Western Australia being the only one), or of a state or territory Supreme Court exercising jurisdiction under the Act, lie to a Full Court of the Family Court. Similarly, as discussed above, appeals lie to the Full Court of the Family Court from the Federal Circuit Court (unless the Chief Judge considers the matter should be heard by a single judge, in which case any further appeal goes to the High Court).298 Appeals are generally ‘as of right’, although leave to appeal to the Full Court may be needed for an interlocutory decree that is not in relation to a child welfare matter.299 There is also provision, under s 94A(1), for a question of law to be referred to the Full Court by a judge at the request of at least one of the parties on a ‘case stated’. A similar procedure exists for a ‘special case’ involving a question of law to be referred to the Full Court from the Federal Circuit Court.300

Appeals to the High Court 4.129 In 2005, the FLA was amended to stipulate that only ‘by special leave of the High Court’ does an appeal lie from the Family Court to the High Court.301 The granting of special leave is very rare and would need to involve an important question of law and public interest. Prior to that amendment, an appeal could also lie

if the Full Court of the Family Court had granted a ‘certificate’ specifying the terms of an ‘important question of law or of public interest’.302 Despite this [page 228] restriction, the High Court can review a decision of a judge of the Family Court by means of the prerogative writs; for example, prohibition,303 mandamus304 or certiorari.305 In R v Cook; Ex parte Twigg,306 however, the High Court disapproved the unnecessary recourse to this jurisdiction when the remedy of an appeal to the Full Court of the Family Court was available. 1.

See Attorney-General for New South Wales v Brewery Employees’ Union of New South Wales (the Union Label case) (1908) 6 CLR 469 at 611 per Higgins J; R v Brislan; Ex parte Williams (1935) 54 CLR 262 at 282 per Rich and Evatt JJ. In Brislan, the court, after quoting from a United States Supreme Court decision, stated (at 282) that the ‘powers thus granted by the Constitution … keep pace with the progress of the country and adapt themselves to the new developments of time and circumstances’.

2. 3.

(1999) 198 CLR 511. Ibid at 553–4.

4. 5.

Ibid. Marriage Act 1961 (Cth) s 5 (as amended by the Marriage Amendment Act 2004 (Cth)).

6. 7.

[2013] HCA 55; (2013) 250 CLR 441; (2013) 304 ALR 204. Marriage Equality (Same Sex) Act 2013 (ACT).

8.

Commonwealth v Australian Capital Territory [2013] HCA 55 at [61]; (2013) 250 CLR 441; (2013) 304 ALR 204. [2013] HCA 55 at [57].

9. 10. 11.

See Hyde v Hyde & Woodmansee (1866) LR 1 P & D 130. Commonwealth v Australian Capital Territory [2013] HCA 55 at [33]; (2013) 250 CLR 441; (2013) 304 ALR 204.

12. 13.

Ibid at [38]. See Vitzdamm-Jones v Vitzdamm-Jones; St Clair v Nicholson (1981) 148 CLR 383 at 402 (per Barwick CJ); at 416 (per Stephen J). See also P Lane, ‘Federal Family Powers’ (1978) 52 Australian Law Journal 121; (1981) 55 Australian Law Journal 685; H Finlay, ‘A Commonwealth “Family Law”?’ (1982) 56 Australian Law Journal 119.

14.

(1981) 148 CLR 383 at 402.

15.

See Attorney-General (Vic) v Commonwealth (the Marriage Act case) (1962) 107 CLR 529 at 582 (per Windeyer J). Ibid at 560 (per Taylor J); at 572 (per Menzies J). See also Russell v Russell (1976) 134 CLR 495 at 539–40 (per Mason J).

16. 17. 18. 19.

20.

Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 494 (per Gibbs J); cf Fencott v Muller (1983) 152 CLR 570. J Quick and R Garran, Annotated Constitution of the Commonwealth of Australia, Legal Books, Sydney, 1976 (reprint of 1901 ed), p 608. Ibid (referring to the Australian Federal Convention, Official Record of the Debates of the Australasian Federal Convention, Second Session, Sydney, 2nd to 24th September, 1897, Government Printer, Sydney, 1897, pp 1077–82). J Quick and R Garran, Annotated Constitution of the Commonwealth of Australia, Legal Books, Sydney, 1976 (reprint of 1901 ed), p 610.

21. 22.

Ibid, p 611. Ibid, pp 611–12.

23.

H Moore, The Constitution of the Commonwealth of Australia, 2nd ed, CF Maxwell (G Partridge & Co), Melbourne, 1910, p 475. J Quick and R Garran, Annotated Constitution of the Commonwealth of Australia, Legal Books, Sydney, 1976 (reprint of 1901 ed).

24. 25. 26.

Matrimonial Causes Act 1945 (Cth) ss 6 and 11. Matrimonial Causes Act 1955 (Cth) s 5 (inserting a new s 12A into the 1945 Act).

27. 28.

See Hyde v Hyde & Woodmansee (1866) LR 1 P & D 130 at 133 per Wilde JO. See Crimes Act 1900 (NSW) s 92; Criminal Code 1899 (Qld) s 360; Criminal Law Consolidation Act 1935 (SA) s 78; Crimes Act 1958 (Vic) s 64.

29.

The dissenting justices were Dixon CJ and Windeyer J (although Windeyer J did find that s 91 was a valid exercise of Commonwealth power). (1962) 107 CLR 529 at 560.

30. 31. 32.

Ibid at 579. J Quick and R Garran, Annotated Constitution of the Commonwealth of Australia, Legal Books, Sydney, 1976 (reprint of 1901 edition), p 608.

33. 34.

(1962) 107 CLR 529 at 560–1. Ibid at 572.

35. 36.

Ibid at 574. Ibid at 580.

37. 38.

H Moore, The Constitution of the Commonwealth of Australia, 2nd ed, CF Maxwell (G Partridge & Co), Melbourne, 1910, p 474. (1962) 107 CLR 529 at 554.

39. 40.

Ibid at 581. Ibid at 560.

41.

Ibid at 560–1.

42.

Ibid at 581 per Windeyer J.

43. 44.

Ibid at 544. Ibid at 549.

45. 46.

Ibid at 554 per Kitto J. Ibid at 564 per Taylor J.

47. 48.

Ibid at 547. Ibid at 556.

49. 50.

Russell v Russell; Farrelly v Farrelly (1976) 134 CLR 495. Ibid at 539 per Mason J.

51. 52.

Fisher v Fisher (1986) 161 CLR 438 at 453 per Mason and Deane JJ. Ibid at 452.

53.

54.

See, for example, Attorney-General for New South Wales v Brewery Employees’ Union of New South Wales (the Union Label case) (1908) 6 CLR 469 at 600 per Higgins J; King v Jones (1972) 128 CLR 221 at 229 per Barwick CJ; Re Wakim; Ex parte McNally (1999) 198 CLR 511 at 553–4 per McHugh J. (1964) 110 CLR 353.

55. 56.

Ibid at 369. Ibid at 366; see also at 361–2 per Kitto J.

57.

Ibid at 379 (adopting a phrase of Higgins J in Attorney-General for New South Wales v Brewery Employees’ Union of New South Wales (the Union Label case) (1908) 6 CLR 469). Jactitation, in common law jurisdictions, refers to the maliciously boasting or giving out by one party that he or she is married to the other party.

58. 59. 60.

Section 6. Halsbury’s Laws of England, 4th ed, vol 13, Butterworths, London, 1973, [504], n 1; W Jowitt et al, Dictionary of English Law, 2nd ed, vol II, Sweet & Maxwell, London, 1977, p 1162.

61. 62.

Lansell v Lansell (1964) 110 CLR 353 at 363 per Kitto J. See Green v Lord Penzance (1881) 6 App Cas 657 at 671 (as cited by Starke J in Ex parte Walsh & Johnson; Re Yates (1925) 37 CLR 36 at 131).

63.

64.

Re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265–6; cf Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 (particularly per Mason J at 506ff). See Matrimonial Causes Rules r 195.

65. 66.

Matrimonial Causes Act 1959 (Cth) s 89(2), (4). See Lansell v Lansell (1964) 110 CLR 353.

67. 68.

(1964) 110 CLR 353. For principal relief, including divorce, see Matrimonial Causes Act 1959 (Cth) s 5(1) (para (c) of the definition of ‘matrimonial cause’).

69. 70.

(1964) 110 CLR 353 at 361–2. Ibid at 362.

71. 72.

(1967) 116 CLR 366. Ibid at 379 per Windeyer J.

73. 74.

Cf Lansell v Lansell (1964) 110 CLR 353. (1976) 134 CLR 495.

75. 76.

FLA s 39. FLA s 41. Western Australia is the only state to have created its own court.

77. 78.

See Commonwealth of Australia Gazette S86. Le Mesurier v Connor (1929) 42 CLR 481 at 522 per Starke J; cf Kotsis v Kotsis (1970) 122 CLR 69.

79. 80.

Ibid. See Russell v Russell; Farrelly v Farrelly (1976) 134 CLR 495 at 532.

81. 82.

FLA s 4(1)(c)(iii). (1976) 134 CLR 495 at 538–9.

83. 84.

Attorney-General (Vic) v Commonwealth (1962) 107 CLR 529. (1976) 134 CLR 495 at 538.

85. 86.

Ibid at 539–40. (1948) 68 CLR 87.

87. 88.

Ibid at 110. (1976) 134 CLR 495 at 510.

89. 90.

Ibid. Ibid.

91. 92.

Ibid at 538. (1986) 161 CLR 438 at 453 per Mason and Deane JJ.

93. 94.

(1976) 134 CLR 495 at 542. (1981) 149 CLR 227.

95.

Fisher v Fisher (1986) 161 CLR 438 at 453 per Mason and Deane JJ; P v P (1994) 181 CLR 583. (1981) 149 CLR 227 at 248–9.

96. 97. 98.

See H Finlay, ‘A Commonwealth “Family Law”?’ (1982) 56 Australian Law Journal 119. (1993) 17 Fam LR 156; (1993) FLC ¶92-434.

99. Hunt v Hunt (2006) 36 Fam LR 64; [2006] FamCA 167. 100. Slazenger v Hunt (S108/2005); Lederer v Hunt (S109/2006) (1 September 2006), available at www.austlii.edu.au (accessed 30 November 2015). 101. (1987) 164 CLR 91. 102. (1982) 8 Fam LR 537 per Asche, Pawley and Emery SJJ. 103. See the Commonwealth Powers (Family Law — Children) Acts of the referring states, and the assumption of that power by the Commonwealth in the Family Law Amendment Act 1987 (Cth).

104. (1987) 164 CLR 91 at 115 per Mason CJ and Deane J; at 131 per Gaudron J. 105. Russell v Russell; Farrelly v Farrelly (1976) 134 CLR 495. 106. (1978) 143 CLR 410. 107. (1981) 148 CLR 383. 108. (1982) 150 CLR 615. 109. (1984) 156 CLR 170. 110. (1985) 156 CLR 228. 111. (1985) 156 CLR 249. 112. (1986) 161 CLR 376. 113. For anyone who wishes to make a deeper study of these issues, refer to Chapter 2 (2.43–2.70) of the third edition of this book. 114. A Dickey, Family Law, 6th ed, Lawbook Co, Sydney, 2014, p 47. 115. (1990) 14 Fam LR 427; (1991) FLC ¶92-193. 116. (1992) 175 CLR 218. 117. (1994) 181 CLR 583. 118. Now the Guardianship Division of the New South Wales Civil and Administrative Tribunal. 119. Note that former s 60H of the Act provided that a court could not, under the FLA, make an order (except under former Div 6, which deals with maintenance) about a child who is under guardianship or custody or care and control as a person under the child welfare laws, unless: (a) the order is expressed to come into effect when the child ceases to be under such guardianship, custody or care and control; or (b) with the written consent of a child welfare officer. A similar provision currently appears in FLA s 69ZK. 120. (1994) 181 CLR 583 at 592, 608 per Mason CJ, Deane, Toohey and Gaudron JJ; at 637 per McHugh J. 121. Ibid at 611 per Brennan J; at 632 per Dawson J. 122. Ibid at 599. 123. Ibid. 124. Ibid at 600–1. 125. Ibid at 607. 126. Ibid at 611. 127. Ibid at 626. 128. Ibid. 129. Ibid at 629. 130. Ibid. 131. Ibid at 630. 132. Ibid. 133. Ibid at 631. 134. (2004) 219 CLR 365; (2004) 31 Fam LR 339; FLC ¶93-174.

135. Migration Act 1958 (Cth). 136. B (Infants) & B (Intervener) v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 30 Fam LR 181; (2003) FLC ¶93-141; [2003] FamCA 451. 137. Minister for Immigration & Multicultural & Indigenous Affairs v B (2004) 219 CLR 365. 138. GDPW & IDPW (2004) 33 Fam LR 338 at 339–40; FLC ¶93-206. 139. Re Marion (1990) 14 Fam LR 427; (1991) FLC ¶92-193. 140. Minister for Immigration & Multicultural & Indigenous Affairs v B (No 3) (2004) 31 Fam LR 339 at 346–9; FLC ¶93-174. 141. Secretary of Department of Health & Human Services v Ray (2010) 45 Fam LR 1; [2010] FamCAFC 258. 142. Ibid. See also (2004) 219 CLR 365. 143. (2004) 219 CLR 365 at [52]. 144. [2009] FamCA 219. 145. Ibid at [78]. 146. Secretary of Department of Health & Human Services v Ray (2010) 45 Fam LR 1. 147. Ibid at 18. For comment, see B Fehlberg, ‘Parenting Disputes, State Protection Laws and an Attempt at Lateral Thinking’ (2011) 25 Australian Journal of Family Law 15. 148. See s 26 (assimilating the position of a married woman to that of a ‘femme sole’, so long as a decree for judicial separation was in force). 149. See, for example, Married Persons (Equality of Status) Act 1996 (NSW) s 5; Marriage Act 1958 (Vic) s 160. 150. The potential for argument as to the constitutional validity of ss 119 and 120 arose in Magill v Magill (2006) 226 CLR 551. In view of the High Court’s decision on the matter under appeal, however, the validity of appellant’s constitutional challenge to these two sections did not need to be decided. 151. See Commonwealth Constitution s 122; FLA s 31(1)(c). See also Spratt v Hermes (1965) 114 CLR 226. 152. FLA s 39(5). 153. See Commonwealth of Australia Gazette S86, 27 May 1976. 154. FLA s 39(6). 155. FLA s 39(7). 156. See Commonwealth of Australia Gazette S86, 27 May 1976. 157. Family Court Act 1997 (WA) s 5(1) and Div 2. 158. FLA s 41. 159. FLA s 41(4)(a). 160. FLA s 41(4)(b). 161. FLA s 41(4)(c). 162. FLA s 41(1). 163. FLA s 22(2A) and (2B). 164. D O’Neil (Minister for Works), Second Reading Speech, Parliamentary Debates,

Western Australia, 21 October 1975, p 3606. 165. It was assented to on 1 December 1975 and proclaimed on 4 May 1976. 166. It was assented to on 10 December 1997 and proclaimed on 25 September 1998. It was further amended by the Family Court Amendment Act 2002 (WA) that introduced, among other things, a new Pt 5A in relation to de facto relationships. 167. Family Court Act 1997 (WA) s 9 (and see generally, Pt 2). 168. Family Court Act 1975 (WA) s 27(1)–(2); now see Family Court Act 1997 (WA) ss 30–31. 169. Joint Select Committee Report, 1980, Dissenting Report of Senator Missen, vol 1, pp 204, 208. 170. Russell v Russell; Farrelly v Farrelly (1976) 134 CLR 495; for a discussion, see 4.31ff. 171. (1979) 141 CLR 504. 172. Ibid at 509. 173. See Federal Court of Australia Act 1976 (Cth) s 32. 174. See Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457; Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261. 175. Smith v Smith (1986) 161 CLR 217. 176. A Dickey, Family Law, 6th ed, Lawbook Co, Sydney, 2014, p 105. 177. (1981) 148 CLR 457. 178. Ibid at 475. 179. Breaches of the Trade Practices Act 1974 (Cth) ss 52 and 53 were alleged; now see ss 18 and 29 of the Australian Consumer Law as contained in Sch 2 of the Competition and Consumer Act 2010 (Cth). 180. See Moorgate Tobacco Co Ltd v Philip Morris Ltd (1980) 145 CLR 457; Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261; Fencott v Muller (1983) 152 CLR 570. 181. (1983) 154 CLR 261. 182. Ibid at 293. 183. (1999) 198 CLR 511. 184. Fencott v Muller (1983) 152 CLR 570. 185. (1999) 198 CLR 511 at 585 per Gummow and Hayne JJ. 186. (1986) 161 CLR 217. 187. Now see s 95 of the Succession Act 2006 (NSW). 188. See Re Wakim; Ex parte McNally (1998) 198 CLR 511 at 563 per McHugh J; Gummow and Hayne JJ at 586–8; Callinan J at 624; cf Kirby J dissenting at 617–18. 189. (2001) 27 Fam LR 484; FLC ¶93-069. 190. (2001) 27 Fam LR 484 at 495. 191. Ibid. 192. (2001) 28 Fam LR 443; (2002) FLC ¶93-091. 193. (2001) 28 Fam LR 443 at 476. 194. Ibid at 476–7.

195. Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457. 196. Ibid at 476 (the court referred in particular to the High Court’s decision in Smith v Smith (1986) 161 CLR 217, where arguably its decision was limited to the application of a specific state statute). 197. Ibid. 198. (1984) 9 Fam LR 850; FLC ¶91-573. 199. (1985) 10 Fam LR 283; FLC ¶92-604. 200. Smith v Smith (1986) 161 CLR 217. 201. (2001) 28 Fam LR 443 at 478. 202. Ibid. 203. (2009) FLC ¶93-395; [2009] FamCAFC 27. 204. Ibid at [27], citing Australian Securities and Investment Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559; Houghton v Arms (2006) 225 CLR 553. See also Ruane & Bachmann-Ruane (Accrued Jurisdiction) [2012] FamCA 369 at [23]. 205. (2001) 28 Fam LR 443 at 479. 206. Hunt v Hunt (2006) 36 Fam LR 64, approved B Pty Ltd v K (2008) 219 FLR 107; [2008] FamCAFC 113. 207. L Aitken, ‘Discretion, Power and the “Accrued” Jurisdiction of the Family Court’ (2009) 83 Australian Law Journal 694. 208. See, for example, Bergman v Bergman [2009] FamCAFC 27; Ruane & Bachmann-Ruane (Accrued Jurisdiction) [2012] FamCA 369. For further examples, see Aitken, ibid. 209. (2009) 236 FLR 272; (2009) 42 Fam LR 319; (2009) FLC ¶93-415; [2009] FamCAFC 207. 210. (2009) FLC ¶93-415 at [52]. 211. Klintock v Ferder (2010) 43 Fam LR 135; [2010] FamCA 162. 212. Commonwealth Powers (Family Law — Children) Act 1986 (NSW); Commonwealth Powers (Family Law — Children) Act 1990 (Qld); Commonwealth Powers (Family Law) Act 1986 (SA); Commonwealth Powers (Family Law) Act 1987 (Tas); Commonwealth Powers (Family Law — Children) Act 1986 (Vic). 213. Cf Commonwealth Powers (Family Law) Act 1987 (Tas) s 3(4). 214. Commonwealth Powers (De Facto Relationships) Act 2003 (NSW); Commonwealth Powers (De Facto Relationships) Act 2003 (Qld); Commonwealth Powers (De Facto Relationships) Act 2009 (SA); Commonwealth Powers (De Facto Relationships) Act 2006 (Tas); Commonwealth Powers (De Facto Relationships) Act 2004 (Vic). 215. Commonwealth Powers (De Facto Relationships) Act 2006 (WA). 216. For some writings on the cross-vesting scheme, see C Baker, ‘Cross-vesting of Jurisdiction between State and Federal Courts’ (1987) 14 University of Queensland Law Journal 118; S O’Ryan, ‘Cross-vesting: An Early Report on Progress’ (1989) 3 Australian Journal of Family Law 1; K Mason and J Crawford, ‘The Cross-vesting Scheme’ (1988) 62 Australian Law Journal 328; Constitutional Commission, Final Report, 1988, pp 371–3; D Kovacs, ‘Cross-vesting of Jurisdiction: New Solutions or New Problems’ (1988) Melbourne University Law Review 669; D St L Kelly and J

Crawford, ‘Choice of Law under the Cross-vesting Legislation’ (1988) 62 Australian Law Journal 589; G Griffith, D Rose and S Gageler, ‘Choice of Law in Cross-vested Jurisdiction: A Reply to Kelly and Crawford’ (1988) 62 Australian Law Journal 698; G Griffith, D Rose and S Gageler, ‘Further Aspects of the Cross-vesting Scheme’ (1988) 62 Australian Law Journal 1016; G Lindell, ‘The Cross-vesting Scheme and Federal Jurisdiction Conferred upon State Courts by the Judiciary Act 1903 (Cth)’ (1991) 17 Monash Law Review 64; R Chisholm, ‘Cross-vesting and Family Law: A Review of Developments’ (1991) 7 Australian Family Lawyer 15. 217. See Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT); Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW); Jurisdiction of Courts (Cross-vesting) Act 1987 (NT); Jurisdiction of Courts (Cross-vesting) Act 1987 (Qld); Jurisdiction of Courts (Cross-vesting) Act 1987 (SA); Jurisdiction of Courts (Cross-vesting) Act 1987 (Tas); Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic); Jurisdiction of Courts (Crossvesting) Act 1987 (WA). The federal, state and territory complementary legislation all have the same date of commencement (1 July 1988), except for the Australian Capital Territory (6 September 1993). 218. Explanatory Memorandum, Jurisdiction of Courts (Cross-vesting) Bill 1987 (Cth), House of Representatives, 1987, [6]. 219. (1990) 13 Fam LR 853; FLC ¶92-139. 220. Ibid at 863–7. 221. Ibid at 867–8. 222. Referring to Bankinvest AG v Seabrook (1988) 14 NSWLR 711 and Berry v Wakley & Black (1988) 12 Fam LR 451. 223. (1997) 22 Fam LR 1; FLC ¶92-757. 224. (1997) 22 Fam LR 1 at 9. 225. Ibid at 67. 226. (1998) 193 CLR 346. 227. Ibid per Brennan CJ, Toohey and Kirby JJ; Gaudron, McHugh and Gummow JJ dissenting. As the court was equally divided, it affirmed the decision of the Full Court of the Federal Court of Australia. 228. (1999) 198 CLR 511. 229. Australian Constitution s 51(xxxix). 230. Ibid s 51(xxxvii). 231. (1999) 198 CLR 511 at 578. 232. Ibid at 548. 233. Ibid at 548–9. 234. (2000) 204 CLR 158 per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ; Kirby J dissenting. 235. See Le Mesurier v Le Mesurier [1895] AC 517. See also P Joske, Laws of Marriage and Divorce in Australia, 3rd ed, Butterworths, Sydney, 1952, p 17 (the third edition is cited here because it contains a good summary of the history of Australian divorce legislation). For an overview, see H Finlay, To Have But Not Hold — A History of Attitudes to Marriage and Divorce in Australia 1858–1975, The Federation Press,

Annandale, 2005. 236. See Australasian Temperance and General Mutual Life Assurance Society Ltd v Howe (1922) 31 CLR 290. 237. Matrimonial Causes Act 1959 (Cth) s 23(4)–(5). 238. Ibid s 24(1). 239. Ibid s 24(2). 240. [1969] 1 AC 33. 241. FLA s 39(3)–(4). 242. FLA s 39(4). 243. FLA s 104. 244. See Domicile Act 1982 (Cth) s 9. 245. Ibid s 11. 246. In 2013, the name of the court was changed from the Federal Magistrates Court to the Federal Circuit Court: see Federal Circuit Court of Australia Legislation Amendment Act 2012 (Cth); Federal Circuit Court of Australia (Consequential Amendments) Act 2013 (Cth). 247. FLA ss 20 and 21. 248. FLA s 7. 249. FLA s 31. 250. Initially known as the Federal Magistrates Service. 251. In April 2013 the name of the court was changed from the Federal Magistrates Court to the Federal Circuit Court: see Federal Circuit Court of Australia Legislation Amendment Act 2012 (Cth) and Federal Circuit Court of Australia (Consequential Amendments) Act 2013 (Cth). 252. This change occurred on 1 July 2016: see Courts Administration Legislation Amendment Act 2016 (Cth). 253. See generally, FLA s 39. 254. See Family Court of Australia, Practice Direction No 6 of 2003. 255. See Federal Magistrates Act 1999 (Cth) ss 39–41; FLA s 33B. 256. See www.familycourt.gov.au/wps/wcm/connect/fcoaweb/about/corporate-information/protocol-for-division-of-work-fcoa-fcc (accessed 4 August 2015). 257. Ibid. 258. Ibid. 259. Ibid. 260. See Federal Magistrates Act 1999 (Cth) s 19; FLA s 33A(1). This does not apply to proceedings for a decree of dissolution of marriage or proceedings under FLA Pt VII Div 13A or under Pt XIII or XIIIA: see FLA s 33A(2). 261. See also Family Court Act 1997 (WA). 262. Family Court Act 1975 (WA) ss 15, 16; now see Family Court Act 1997 (WA) s 15 (as it relates to salaries and allowances). 263. FLA s 22(2); Family Court Act 1975 (WA) s 9; now see Family Court Act 1997 (WA)

s 11. 264. Family Court Act 1975 (WA) s 12(1); now see Family Court Act 1997 (WA) s 18(1). 265. Family Court Act 1975 (WA) s 28; now see Family Court Act 1997 (WA) s 37. 266. Family Court Act 1975 (WA) s 20; now see Family Court Act 1997 (WA) s 24. 267. FLA s 22(2A). 268. Family Court Act 1975 (WA) s 11; now see Family Court Act 1997 (WA) s 22. 269. R Pound, ‘Discretion, Dispensation and Mitigation: The Problem of the Individual Special Case’ (1960) New York University Law Review 925 at 926. 270. R Pound, ‘The Theory of Judicial Decisions’ (1923) 36 Harvard Law Review 940 at 947. 271. FLA s 93A. 272. CDJ v VAJ (1998) 197 CLR 172 per McHugh, Gummow and Callinan JJ; Gaudron and Kirby JJ dissenting. 273. See, for example, Evans v Bartlam [1937] AC 473; Charles Osenton & Co v Johnston [1942] AC 130; Blunt v Blunt [1943] AC 517. 274. (1936) 55 CLR 499. 275. Ibid. 276. Ibid at 504–5 per Dixon, Evatt and McTiernan JJ. For an analysis of these principles, see H Finlay, ‘Judicial Discretion in Family and Other Litigation’ (1976) 2 Monash Law Review 221. 277. (1976) 1 Fam LR 11,433. 278. See Sutton & Sutton (No 2) (1976) 2 Fam LR 11,256; Daines & Daines (1985) 10 Fam LR 597. 279. (1984) 156 CLR 605. 280. (1950) 81 CLR 513. 281. See the opinions of Gibbs CJ and Mason J in Mallet v Mallet (1984) 156 CLR 605. 282. (1986) 161 CLR 513. 283. Ibid at 518. 284. [2004] FamCA 1179 at [82]–[86]. 285. [2010] FamCAFC 66. 286. Ibid at [18]. 287. FLA s 21A. 288. FLA s 22(2AA)–(2A). 289. FLA s 94AAA(3). 290. FLA s 94AAA(12). 291. FLA s 96(4)(a). 292. FLA s 96(4)(b). 293. FLA s 94AAA(6). 294. (1982) 8 Fam LR 131. 295. (1931) 46 CLR 73.

296. (1982) 8 Fam LR 131 at 133–4. 297. Ibid at 146–7. 298. FLA s 94AAA. 299. FLA s 94AA. See also Family Law Regulations reg 15A. 300. FLA s 94A(3). 301. FLA s 95 (as amended by the Family Law Amendment Act 2005 (Cth) s 3). 302. For a discussion, see DJL v The Central Authority (2000) 201 CLR 226 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. 303. R v Watson; Ex parte Armstrong (1976) 136 CLR 77. 304. R v Ross-Jones; Ex parte Beaumont (1979) 141 CLR 504. 305. R v Cook; Ex parte Twigg (1980) 6 Fam LR 161; 147 CLR 15. 306. Ibid per Mason, Murphy and Wilson JJ in separate judgments.

[page 229]

5 MARRIAGE AND DE FACTO RELATIONSHIPS ___________________________

Introduction 5.1 Eekelaar has succinctly summarised the importance traditionally afforded to marriage by our society and its laws: The epicentre of family law has always evolved around the institution of marriage. Marriage is the basis of the legal family and has therefore provided the framework in which legal obligations of the adult parties towards each other and their children have been set.1

Over the centuries, marriage in UK, Australian and other societies has changed and developed from an institution utilised for economic purposes (among the wealthy for the transmission of property) into the modern conception of a union based on affection for the purposes of raising children and the mutual support, emotional as much as economic, of the partners. The nature of this evolution (overviewed in Chapter 1) and the explanations for it have been exhaustively canvassed (not with unanimity) by historians and others, and are beyond the scope of this present work.2 5.2

In earlier editions of this book it was observed that as society

changes, so does the law, which is a reflection of society’s views. The years separating the first and most recent editions of this book have witnessed the ever-increasing popularity and legal recognition of alternatives to traditional marriage, particularly in the form of stable de facto relationships between both oppositesex and same-sex couples. [page 230] Alternative grounds for recognition of personal relationships and relationship registration are now available in some states and territories (see 5.116).3 At the same time, the reservation of marriage to opposite-sex couples arguably renders marriage the ‘last frontier’ in Australia for same-sex relationship recognition.4 The contours of the same-sex marriage debate are laid out at 1.60–1.63 and the constitutional issues at 4.3. While marriage is only available to couples in opposite-sex relationships, legislation has been introduced throughout Australia over the last 20 years that brings the financial consequences of relationship breakdown for couples in opposite-sex and same-sex de facto relationships into line with those of married couples: see 5.91. The recent referral of this legislative power by all states (other than Western Australia) to the Commonwealth has taken this a step further, with the result that identical law applies to married couples and couples in de facto relationships in so far as maintenance and alteration of interests in property are concerned. These provisions are considered further in Chapters 10 and 12–15. This chapter first considers the nature, formation and recognition of marriage. It then examines the definition of ‘de facto relationship’ for the purposes of the Family Law Act 1975 (Cth) (FLA), and refers to state and territory legislation that provides for relationship registration and recognises other close and caring personal relationships. This reflects the three categories of relationship recognition that now exist in Australia: marriage,

non-marriage relationship registration and the presumptive recognition of non-formalised de facto relationships.5

Marriage Essential characteristics 5.3 The increasing legal recognition afforded to alternatives to formal marriage poses a fundamental question: what is ‘special’ about marriage in modern law? After all, it is clear that the increasing popularity of alternatives has not meant that marriage is an institution in danger of disappearing. Rather, with the ready availability of divorce, remarriage is a viable option for many people. This poses another fundamental challenge for family law: how to develop rules that regulate second and subsequent marriages as justly as the first. Particular issues have arisen in the context of rights and obligations towards step-children and in the distribution of income and property between first and subsequent families. [page 231] 5.4 What are the essential characteristics of marriage under current Australian law? In a legal sense, the answer to this question is simple. Section 5(1) of the Marriage Act 1961 (Cth) (the Marriage Act) provides: Marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.6

This definition, a legislative adoption of the long-recognised common law definition of ‘marriage’, was inserted into the Marriage Act, somewhat controversially, in 2004. Whether the

addition was needed is debatable. Nevertheless, according to the Federal Attorney-General at the time, the Hon Philip Ruddock: Marriage is a central and fundamental institution in our society. It is vital to the stability of our society and provides the best environment for the raising of children. The Government has decided to take steps to reinforce the fundamental basis of the institution of marriage to reflect these views. The Government believes that the vast majority of Australians would agree that marriage is the union of a man and a woman — to the exclusion of all others — voluntarily entered into for life. The Government has decided it is time these words should appear in the formal definition of marriage in the Marriage Act and will amend the Act to achieve this result.7

It is worth noting that, despite this ‘new’ definition, s 46 of the Marriage Act has always required an authorised celebrant8 (other than a minister of religion) to inform those about to be married that: Marriage, according to law in Australia, is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.

Moreover, s 43(1)(a) of the Family Law Act 1975 (Cth) (FLA) directs courts to have regard to the need to ‘preserve and protect the institution of marriage’, defining marriage in these terms. The common law origin of this definition of marriage is the celebrated statement made in 1866 by Wilde JO (later Lord Penzance) in Hyde v Hyde.9 That case concerned a petition presented in England by a husband for the dissolution of a Mormon marriage entered into with his wife in Utah. The Mormons at Utah allow polygamy and therefore at the time the [page 232] marriage was entered into it was potentially polygamous.10 In refusing to entertain the applicant’s petition for divorce on the basis that he was not validly married according to English law, Lord Penzance gave the now famous dictum11 on which the above definition and other statutory provisions are based.

The essential characteristics identified in this definition are discussed in what follows. The legal consequences for a marriage that does not meet these definitional requirements are considered in Chapter 6: see 6.105ff.

Monogamy 5.5 One essential characteristic of Australian marriage is that it is monogamous. This is reflected in the Marriage Act requirement that a person entering into marriage cannot already be married.12 As a result, no person in Australia has the capacity to enter into a polygamous marriage. Therefore, a polygamous marriage celebrated in Australia according to tribal custom between Indigenous Australians is a ‘complete nullity’13: see 5.9.

Polygamy 5.6 A different question nevertheless arises: will Australian law recognise as valid for any purposes a polygamous or potentially polygamous marriage entered into in an overseas country?14 Prior to statutory intervention, the definition in Hyde’s case (see 5.4) meant that a party to a polygamous marriage was denied access to the divorce jurisdiction of the English court, and this was subsequently extended to other forms of matrimonial relief.15 This position was originally adopted in Australia by the Matrimonial Causes Act 1959 (Cth).16 Nevertheless, foreign polygamous marriages were recognised at common law for some other purposes under state law, such as succession.17 5.7 The injustice of denying matrimonial relief to a party to a polygamous marriage contracted overseas, in any multicultural society with a high immigrant [page 233]

population, is self-evident. The rule has therefore been abolished by statute, in Australia and elsewhere. The Matrimonial Causes Act 1959 (Cth) was amended in 196518 to permit matrimonial relief (both principal and ancillary) to be granted in the case of marriages contracted overseas that were potentially polygamous. Subsequently s 6 of the FLA extended this permission to actual polygamous marriages contracted outside Australia. Similar provisions have been enacted in the UK19 and New Zealand.20 5.8 It is important to realise that s 6 of the FLA recognises polygamous marriages contracted outside Australia only for the purpose of proceedings under the Act. The operation of s 6 is saved by s 88E(4) of the Marriage Act (which was inserted by the Marriage Amendment Act 1985 (Cth)): This Part shall not be taken to limit or exclude the operation of a provision of any other law of the Commonwealth, or of a law of a State or Territory, that deems a union in the nature of a marriage to be a marriage for the purposes of the law in which the provision is included.

This saving provision is important, because s 88D(2)(a) appears otherwise to prohibit the recognition of polygamous marriages in Australia. In addition to recognition via s 6, such a marriage might also be recognised under the common law rules saved by s 88E (these provisions are discussed at 5.60–5.70). Section 88E(4) also saves any state laws that deem polygamous unions to be marriages; for example, for the purposes of succession.

Indigenous Australians — Aboriginal customary marriages 5.9 Section 88E(4) of the Marriage Act (unlike s 88E(3)) is not restricted to marriages contracted outside Australia. It will, therefore, preserve the operation of any laws that deem unions contracted within Australia to be marriages for any

Commonwealth or state law purposes. This is of potential importance for the recognition of Aboriginal customary marriages. Marriage of this kind has historically been granted very limited recognition.21 In 1986 the Australian Law Reform Commission (ALRC), in its report The Recognition of Aboriginal Customary Laws,22 recommended that customary marriages (which may be polygamous) be recognised in a wide range of situations, including legitimacy, adoption, fostering, child welfare laws, distribution of property on death, accident [page 234] compensation and social security, but that relief under the FLA be excluded. This approach (known as functional recognition) was preferred to the possibility of equating customary marriage to de facto marriage in state laws, on the basis of strongly negative views of that option held by Aboriginal people.23 The Western Australian Law Reform Commission, which subsequently undertook a review of customary law, pointed to the fact that ‘there has been limited administrative and legislative implementation of the ALRC’s recommendations’.24 In respect of recognising customary marriage, adoption is one area that has resulted in legislative amendment25 and there have been some administrative changes to the way social security departments treat such marriages.26 For many matters, of course, legislative change would need to be made by the states, because the matters fall within their legislative domain, and this appears to be the preference of the Commonwealth Government.27 To some extent, events have overtaken the ALRC’s recommendations.28 For example, modern de facto relationship legislation has for some years provided remedies to any couple falling within the relevant definition and meeting other jurisdictional requirements. The states (other than Western Australia) have referred their powers in respect of de facto property

and maintenance disputes to the Commonwealth, and the provisions of the FLA apply on the breakdown of de facto relationships. In Western Australia, state law applies to de facto relationships which, for family law purposes, is the same as the FLA: see 5.92. De facto legislation provides for the recognition of more than one de facto marriage, so the breakdown of a polygamous tribal marriage will attract the same relief. While this may alleviate the lack of access to financial relief for some Indigenous Australians, it does not of itself give expression to differing institutions of marriage, as one might expect, in a pluralistic racial society such as Australia.

A man and a woman 5.10 It is a requirement in Australian marriage law that the parties to a marriage are a man and a woman. This is clear from the definition of ‘marriage’ inserted into the Marriage Act in 2004 (see 5.4), the requirement in s 88EA of the Marriage [page 235] Act that a same-sex union must not be recognised as a marriage in Australia, and from references to marriage as a union between a man and woman in s 46 of the Marriage Act and s 43(1)(a) of the FLA. Section 88EA of the Marriage Act (see further, 5.73), which was added in 2004, provides: A union solemnised in a foreign country between: (a) a man and another man; (b) a woman and another woman;must not be recognised as a marriage in Australia.

5.11 These provisions confirm that Australian family law, in common with the historical practice overseas, has been reluctant to treat unions other than the traditional concept of a formal

union between a man and a woman, such as same-sex de facto relationships, as marriage. The calls for the recognition of samesex ‘marriage’ or ‘civil unions’ are now frequent and insistent, as discussed at 1.60–1.63. This follows many overseas jurisdictions according recognition to such unions, such as in a number of European and Scandinavian countries, Canada, some states of the United States and the UK.29 Since the High Court confirmed that the Federal Parliament has constitutional power to change the definition of marriage in Commonwealth v Australian Capital Territory,30 discussed at 4.3, the debate concerning the recognition of same-sex marriage by the law of marriage in Australia is a political, not a legal question.31 As mentioned at 1.63, there appears at present to be little political will in Australia at the federal level to change the law to permit same-sex marriage. 5.12 In the context of the legal recognition of same-sex marriage in Australia, the question had also arisen whether a post-operative transsexual could have a ‘change of sex’ by medical and surgical means recognised so as validly to contract marriage with a person of the opposite sex to the sex of transsexual reassignment, but of the same sex as a person’s sex at birth. The Attorney-General’s Department’s submission to the Senate Committee of Legal and Constitutional Affairs states on this point: It is the view of this Department that the marriage power in the Constitution is limited to the union of a female with a male. Our advice is that a union of a homosexual couple would not be covered by the power. It is the view of this Department that, in the context of a person’s entitlement to marry, a person cannot change his or her sex whether by surgery or otherwise.32

[page 236] 5.13 On the question whether a transsexual who had undergone reassignment surgery would be considered of the opposite sex post-operatively for the purpose of marriage, the Department

expressed the view, somewhat tentatively, that they would probably not be so considered. The Department went on to say, however, that in light of such decisions as that of the Full Federal Court in Secretary DSS v SRA,33 and decisions in the states and territories allowing for alteration in birth certificates: If this trend continues, it is possible that some time in the future the High Court might find that the marriage power extends to the unions of post-operative transsexuals with persons of the sex opposite to that of reassignment.34

This issue was subsequently tested in the Family Court in Re Kevin: Validity of Marriage of Transsexual35 in 2001. In this case the applicant, ‘Kevin’, was a post-operative transsexual who was registered as female at birth. At first instance, Chisholm J refused to follow the 1971 UK case of Corbett v Corbett36 and held that the sexual human identity of a party should be determined at the time of the marriage in question, rather than at the time of birth. His Honour held that in the circumstances of the case (including the fact of sexual reassignment surgery), Kevin should be regarded as male at the time of the ceremony. As a result, his marriage to a woman (‘Jennifer’) was held to be valid. An appeal by the Commonwealth Attorney-General was dismissed.37 The Full Court held that Chisholm J was correct to rule that the words ‘man’ and ‘marriage’ were not technical terms and should be given their ordinary contemporary meanings for the purposes of the Marriage Act.38 Consequently, Chisholm J was correct in finding that Kevin was a man for the purposes of the Act.39 The Full Court also determined that the UK decision of Corbett (and the more recent House of Lords decision in Bellinger v Bellinger)40 did not represent the law of Australia.41 The amendment to the Marriage Act to include a definition of marriage (see 5.4) does not affect this decision, as no definitions of ‘man’ and ‘woman’ were added. The case of Re Kevin is discussed further at 6.43.

[page 237] Of importance to the issue of gender reassignment more generally is the decision of the High Court in AB v Western Australia.42 The question in this case concerned what a person needs to have done to show that they have undergone a ‘reassignment procedure’ in order to satisfy the legislative requirements for a certificate of gender reassignment under the Gender Reassignment Act 2000 (WA). The High Court unanimously held that the proper construction of ‘reassignment procedure’ for the purposes of s 14(1) of the Western Australian legislation does not require a person to ‘undertake every surgical procedure to remove every vestige of the gender which the person denies, including all sexual organs’.43 AB v Western Australia did not require a decision about what constitutes gender reassignment for other purposes, including marriage. It remains to be seen whether after Re Kevin, any gender reassignment less than full surgical reassignment will be considered sufficient to satisfy s 5(1) of the Marriage Act in order for a transsexual person to enter into a valid marriage with a person of the ‘opposite’ sex.

A voluntary union 5.14 It is an essential requirement that the union of marriage be voluntary in nature. A marriage entered into, when the consent of either of the parties is not true consent, is void pursuant to s 23B of the Marriage Act. What constitutes true consent is considered in Chapter 6.

For life 5.15 Some difficulty is presented by the notion that marriage is entered into ‘for life’. Divorce is now freely available in Australia after separation for 12 months under s 48 of the FLA: see Chapter 6. Yet even in Lord Penzance’s time, the notion that marriage was

for life was not an accurate reflection of the law; judicial divorce was available under the Matrimonial Causes Act 1857 (UK), albeit on limited grounds. Of course, a more conservative rationalisation of the modern law is still available in the reasoning proffered nearly 80 years ago in Nachimson v Nachimson,44 namely that at the point in time when the marriage is contracted, the parties’ intention is that it should be for life. However, nothing turns on this in law so it remains, in the end, as remarked by Watson J in Marriage of S,45 no more than a hoped-for state of affairs.

Engagements and breach of promise 5.16 At common law, marriage was preceded by an engagement. An engagement or agreement to marry constituted an enforceable contract, breach of which, [page 238] as with any commercial contract, was subject to legal sanctions. The loss of an anticipated marriage constituted, in very many cases, one or more economically quantifiable losses. One was the loss of the anticipated marriage relationship and the status of marriage itself. The other was the actual or anticipated wealth or monetary expectations of the other party. Somewhat less tangible, but scarcely less valuable, was having to forgo the loss of anticipated family and personal alliances in a world where advancement in life owed much to patronage and belonging to the right circles and families. The economic consequences of marriage were regulated in considerable detail. They were of great significance to members of the propertied classes. Prior to the Married Women’s Property Acts of 1870 and 1882 (UK), the economic position of a married

woman was one of almost complete dependence on her husband. On marriage, he acquired substantial rights over her property, such as the right to manage her freehold land. If she died before him and if there were issue (children of the marriage), he acquired a life estate (estate by the courtesy) in such lands. He was entitled to the income from her leasehold lands and they became his on her death. Her personal property became his absolutely. 5.17 The advantages conferred by marriage on a wife were more limited so far as material possessions were concerned, although socially and economically marriage was arguably the most important event in her life. On marriage, she first acquired the right to dower; this gave her a life interest, on her husband’s death, in one-third of his freehold lands of inheritance. There was also the right to maintenance which she lost only if she committed adultery or deserted him. In an age and society in which women were, economically speaking, the ‘weaker vessels’, the possibility of an independent existence for a woman was severely limited. From a practical point of view, a woman’s best opportunity of leading a comfortable life was to marry a well-to-do husband — to make a ‘good match’. Failing that, any husband was probably better than none. In nineteenth-century England, moreover, the opportunities of marriage for women were greatly restricted, as we are reminded by the Finer Report in 1974:46 Almost one third of women between the ages of 20 and 44 had to remain spinsters because differential mortality and large-scale emigration so depleted the reservoir of men that there were not enough to go round.47

The unmarried woman, unless she came from a wealthy family and was possessed of private means, was forced to earn her own living which was attended by severe inequalities of both opportunity and levels of remuneration. If almost any marriage conferred an economic as well as a social advantage on a woman, then even a binding contract to marry was a valuable commodity, and the loss of it

[page 239] a quantifiable and compensable economic detriment. If the would-be husband was also wealthy or well connected, the loss was so much the greater. The importance of the action for breach of promise is obvious. If, additionally, she had allowed herself to be seduced by him in reliance on his promise of marriage, her loss could be very severe indeed. A woman who had lost her virginity became ‘second-hand goods’, an ‘odd lot’ in the marriage market, and her chances of an advantageous subsequent marriage were greatly reduced. 5.18 A further element, or head of damage, that entered into the court’s calculations in assessing damages was the injury to the feelings of the rejected party. In later years, as the economic aspects of the action became less important to the point of vanishing, the courts tended to seize on this aspect as the last remaining rationale to justify an award. An example is Mills v Harris,48 where the economic and social consequences of the breach were wholly discounted, and an award was made on the basis of the defendant’s ‘rough and unmannerly way’ of breaking off the engagement. By contrast, and perhaps more illustrative of the attitude of 100 years earlier, in Berry v Da Costa49 the plaintiff was awarded £2500 for both loss of marriage and injury to her feelings. 5.19 The action for breach of promise, while it endured into an age in which it had ceased to have any social utility or other justification, did not survive the 1970s. In the UK, it was abolished by the Law Reform (Miscellaneous Provisions) Act 1970. It was abolished in South Australia by the Action for Breach of Promise (Abolition) Act 1971. At the Commonwealth level, it was finally abolished throughout Australia by the Marriage Amendment Act 1976, which inserted s 111A into the Marriage Act. Although the constitutional validity of s 111A has never been

challenged, the question has been asked whether it is properly characterised as a law with respect to marriage (under s 51(xxi) of the Constitution) and therefore a valid exercise of federal legislative power or a state matter as a provision of contract law.50 5.20 Gifts may have been given in anticipation of a marriage that never takes place. Section 111A(2) of the Marriage Act provides that: This section does not affect an action for the recovery of any gifts given in contemplation of marriage which could have been brought if this section had not been enacted.

Here the common law continues to operate.51 Gifts made by one party to the other may be found to have been made conditionally on the marriage taking place. If the [page 240] marriage does not take place because of repudiation without legal justification of one of the parties, the condition will be held to have failed. The party who repudiated the contract of engagement will then be made to return gifts received from the other party, and will be unable to insist on the return of gifts made to that other party. A favourite object of contention is the engagement ring,52 but the principle applies equally to other gifts of real or personal property (eg a block of land).53 In the UK, the law adopts a different policy. Section 3(2) of the Law Reform (Miscellaneous Provisions) Act 1970 (UK) creates the presumption, albeit rebuttable, that an engagement ring is an absolute gift. As Stephen Cretney has observed, this gives a jilted woman the right simply to throw away the ring!54

Codifying marriage

Introduction 5.21 The formation of marriage in Australia is now codified in the Marriage Act. Prior to the enactment of that statute, the law of marriage in Australia was regulated by the law of each state. Once the Commonwealth used its constitutional power to legislate on that topic in 1961, marriage law became uniform throughout Australia. Looking further back in history, the prerequisites and formalities of marriage were not as clearly specified as they are in the modern law. In the early Christian era, marriage was thought of as primarily a private matter. No religious or other ceremony was required — marriage was based on mutual consent and on the subsequent physical union of the parties. Marriage was constituted either by verba de praesenti, when the parties declared that they, there and then, took each other as husband and wife, or by verba de futuro, that they would do so. The latter became a binding relationship on consummation. Consummation of marriage is the first act of sexual intercourse between spouses after their marriage. In the Middle Ages, however, the church (the Roman Catholic Church) came to play an increasingly dominant role in the formation of marriage and the enforcement of its obligations. Questions of validity were matters for the ecclesiastical courts. It also became customary for marriages to be celebrated in facie ecclesiae: at the door of the church. This was mainly a matter of convenience, in that it introduced a measure of publicity, and made for certainty as to marital status and as to the legitimacy of children in an age that knew neither universal literacy, nor a centralised system of registration of marriages; and when society [page 241]

was mainly rural and parish-based, with the knowledge of legal transactions being transmitted largely by word of mouth. 5.22 The Roman Catholic Church introduced a further requirement at the Council of Trent in 1563, when it became necessary for an ordained priest and two witnesses to be present at a marriage ceremony. However, England had broken with Rome in 1534 and so English marriages remained unaffected by the Council of Trent. English law governing the formation of marriage was to remain in its pre-Tridentine state for another two centuries. Marriage in facie ecclesiae — which followed the publication of ‘banns’ or the obtaining of a licence — was not obligatory, though it was the only form that was attended by documentary certainty. However, either party to a marriage entered into by one of the other two methods mentioned above could obtain an order in the ecclesiastical court calling on the other party to have the marriage solemnised in facie ecclesiae.55 Nevertheless, there were many clandestine (secret) marriages and they were among the reasons for the existence of the old remedy of jactitation, which meant a court order was issued to a party to cease to ‘boast of’ being married to the person seeking the order.56 5.23 To put an end to these rather unsatisfactory conditions, Lord Hardwicke’s Act against clandestine marriages (also known as the Clandestine Marriages Act) was passed in 1753.57 From then on, the legal requirement for marriage was that it had to be celebrated in the presence of an episcopally ordained priest, in the parish church of one of the parties, according to the rites of the Church of England, in the presence of two witnesses, and either on the publication of banns or the obtaining of a licence. This requirement, which was similar to what had been introduced by the Roman Catholic Church after the Council of Trent (see 5.22), applied to members of all faiths except Jews and Quakers, who were expressly exempted from the provisions of the Act and whose marriages were governed by their own religious

usages.58 The purpose was to achieve certainty for, although marriage was indissoluble, in practice a marriage that was absolutely secret could, if the parties so chose, be disregarded. This would have tended to defeat the notion of indissolubility. 5.24 However, the Act, in turn, gave rise to other disadvantages. One was the stringency of the requirement of parental consent for under-age persons. This resulted in the well-known ‘Gretna Green’ marriages in Scotland, where the [page 242] same requirement was not present.59 In 1823, a new Marriage Act60 was therefore enacted in England which withdrew the consequences of invalidity previously attending the failure to comply strictly with the requirements regarding the choice of church, the publication of banns or the obtaining of a licence, or the solemnisation by a person not in Holy Orders, except in cases where the failure to comply was committed knowingly and wilfully by both parties. An excellent, concise account of the history of marriage and its necessary formalities is to be found in the Finer Report.61

Marriage Act 5.25 The Marriage Act provides a code governing marriages contracted in Australia. The Act also provides for certain ‘Australian’ marriages to be celebrated overseas by defence force chaplains.62 The Act formerly provided for certain ‘Australian’ marriages to be celebrated by consular representatives acting as marriage officers.63 This was removed by the Marriage Amendment Act 2002 (Cth), although the practice had ceased by 1993. A different issue, that of the general recognition by

Australian law of ‘non-Australian’ marriages celebrated overseas, is also governed by the Marriage Act.64 5.26 To contract a valid marriage, both parties must have capacity and must consent to the union, and the essential formalities must be complied with. These three elements are codified in the Marriage Act as the statutory grounds of nullity. Failure to satisfy any of them will result in a marriage being void.65 Capacity to marry and the essential formalities of marriage are considered below. The grounds of nullity, including the absence of real consent, are considered in Chapter 6. It is important to determine when a particular union is a ‘void marriage’ because the effect of s 71 of the FLA is to extend the availability of financial proceedings under Pt VIII of the Act to ‘void’ marriages. As the law currently stands (see 5.10), a same-sex union (even if a marriage ceremony has been performed) is not a valid marriage, even though it is not stipulated to be a void marriage by s 23 or s 23B of the Marriage Act, wherever that ‘marriage’ ceremony is performed. The interesting question arises: could a same-sex marriage purportedly entered into in Australia or a marriage in contravention of s 113 of the Marriage Act be regarded as a ‘void’ marriage for the purposes of s 71 FLA? [page 243] Recently, in Zau v Huang,66 Berman J concluded that a marriage entered into in contravention of s 113 of the Marriage Act is a nullity: see 6.108. In this case a couple who were validly married to each other in China subsequently went through a second marriage ceremony in Australia. Berman J concluded that the second marriage must be void, notwithstanding that entering into a second marriage in contravention of s 113 of the Marriage Act it is not referred to in s 23B(1) as a ground of nullity and notwithstanding the apparently exclusive nature of the words ‘and

not otherwise’ at the conclusion of s 23B. Accordingly, Berman J declared the second marriage to be void and therefore a nullity. Applying the same reasoning, a same-sex union purportedly entered into in Australia would also be a nullity. If the question were to arise whether a marriage that is void other than on the grounds stipulated in s 23B is a ‘void’ marriages for the purpose of s 71, other considerations would apply, including the remedial legislative purpose of s 71 to provide access to the property and maintenance relief under the FLA to spouses of marriages that are void according to s 23B: see 6.105. It cannot be assumed that a court would construe ‘void marriage’ in s 71 to include a marriage that is a nullity because it contravenes s 113 of the Marriage Act or is a same-sex union.

Marriage Amendment Act 1985 (Cth) and the marriage of foreign nationals in Australia 5.27 Before the relevant provisions of the Marriage Amendment Act 1985 (Cth) came into operation on 7 April 1986, s 23 of the Marriage Act, which states the grounds on which a marriage contracted in Australia is void, was expressly made subject to the common law rules of private international laws.67 Consequently, the capacity of foreign domiciliaries to contract a marriage in Australia was, according to the dual domicile theory (subscribed to by the majority of text writers) governed by the laws of their respective domiciles at the time immediately prior to marriage. This was subject only to Australian requirements of minimum marriageable age, which were and are expressly stated to apply wherever the parties are domiciled.68 However, it may be questioned how many authorised celebrants actually inquired into foreign parties’ capacities under their own laws before celebrating marriages. This rule now applies only to marriages celebrated on or after 20 June 1977 and before 7 April 1986.69 The validity of marriages celebrated in Australia after the date of commencement of s 13 of

the Marriage Amendment Act (ie 7 April 1986) is now governed by ss 23A and 23B of the principal Act, and the effect of these provisions is that the matter is governed entirely by Australian domestic law (as the local law) and that foreign domiciliary laws are irrelevant. [page 244] The purpose of the 1985 legislation in Australia was to give effect to the Hague Convention on Celebration and Recognition of the Validity of Marriages 1978. Under the Convention, the law of the place where a marriage is celebrated assumes primary importance. It will be seen later that unlike the new rules governing validity of marriages within Australia, the new rules governing recognition of foreign marriages are retrospective in their operation: see 5.61.70 The rationale behind this distinction is not immediately apparent, but the distinction has important practical implications for the way in which cases must be argued.

Capacity to marry 5.28 The parties must have legal capacity to contract the marriage. The capacity to contract a marriage must exist in both parties in each of the following three respects: the parties must be free to marry, they must not stand within the prohibited degrees of relationship to one another and they must be of marriageable age.

Freedom to marry 5.29 A person is free to marry if he or she is not already married. If there has been a prior marriage, it must have been terminated by death or divorce. If the earlier ‘marriage’ was void, then of course it is not an obstacle to a subsequent marriage.

Strictly speaking, it does not require a court to say that a marriage is void, although it may be convenient to obtain a declaration of nullity under s 113 of the FLA, or a decree of nullity under s 51 of the FLA, particularly since a marriage celebrant must be satisfied that a person to be married is free to do so.71 It follows that a ceremony of marriage undergone by a person who is already married does not bring into being a valid marriage, and any such purported marriage will be void.72 (See the discussion of this ground of nullity at 6.15–6.20.) Moreover, a person going through such a ceremony may also be guilty of the crime of bigamy: see 5.81. However, the considerations applicable to bigamy are not necessarily the same as those governing the law as to the validity of a marriage. A belief that the previous spouse was dead at the time of the second marriage in question is a defence to a prosecution for bigamy,73 but it cannot alter the fact that at the time of the ceremony there was no capacity to contract the marriage.74 The important time to be considered is that of the purported marriage. If the real spouse subsequently dies, there will again be capacity to marry, but capacity only exists prospectively — the bigamous marriage cannot be validated retrospectively. [page 245]

Prohibited relationships 5.30 The parties must not be within the prohibited degrees of relationship to one another. If they are, the marriage is void.75 The prohibited degrees were greatly simplified under s 51 of the FLA. These provisions were subsequently transferred to the Marriage Act by s 12 of the Marriage Amendment Act 1976 (Cth). The prohibited degrees are now spelt out fully in ss 23(2) and 23B(2) of the Marriage Act and are as follows:

Marriages of parties within a prohibited relationship are marriages — (a) between a person and an ancestor or descendant of the person; or (b) between a brother and a sister (whether of the whole blood or the half-blood).

5.31 These prohibited relationships were formerly very extensive (see 1.9–1.10) and were originally based on the biblical, so-called ‘levitical degrees’. The list was still fairly extensive under the Matrimonial Causes Act 1959 (Cth).76 However, both modern views of eugenics and the fact that the place of the extended family has been taken by the nuclear family have removed any rationale behind these old prohibitions. The lines of authority or of affection between members of families are therefore not liable to be upset by conflicting loyalties established by marriages between persons more distantly related to one another. Neither is the general sense of morality in the community any longer affronted by the marriage of any but close relations. 5.32 The result is that even blood relations may marry one another, unless they are in a direct ascent–descent relationship (parent and child, grandparent and grandchild, etc.) or brother and sister. For this purpose, it is immaterial if the prohibited relationship was constituted by adoption or by birth. Relationships of affinity — that is, constituted only by marriage — are now completely free from any restriction.77 5.33 Current Australian law in relation to those who are permitted to marry each other is liberal in comparison with that of some other countries with similar legal systems. Consequently, in Australia, an uncle is permitted to marry his niece. This is not the case in many other countries. Since 7 April 1986, marriages contracted in Australia are governed entirely by Australian domestic law and unaffected by any incapacity existing under the law of the parties’ domiciles.78 Consequently, an uncle and niece both domiciled in a country where their marriage would be invalid, can now come to Australia and contract a marriage that is valid according to Australian law.

[page 246]

Marriageable age 5.34 Laws prohibiting marriage under a specified age were originally based on the age at which it was thought a child could consent, and so very young children could in theory marry.79 In more recent times, the restriction is more likely due to the assumption that unions between the young are unlikely to be stable. Historically, the law’s view on an acceptable minimum age has altered, the modern law being stricter. Both at canon and common law, 14 years was specified for boys and 12 years for girls, the notional age at which puberty was reached. Modern statutory law continued to specify different minimum ages for the two sexes. 5.35 The differentiation between the sexes was difficult to justify in modern conditions. The present form of the applicable section — s 11 of the Marriage Act — dates back to 1991, when it was amended80 to make it conform with the Sex Discrimination Act 1984 (Cth). Before then, marriageable age was 18 years for males and 16 years for females. Section 11 now says: Subject to section 12, a person is of marriageable age if the person has attained the age of 18 years.

5.36 Under s 12, the marriageable age can be lowered to 16 years for one of the parties upon application to a judge or magistrate. Section 12(1) provides: A person who has attained the age of 16 years but has not attained the age of 18 years may apply to a Judge or magistrate in a State or Territory for an order authorising him or her to marry a particular person of marriageable age despite the fact that the applicant has not attained the age of 18 years.

In exercising the function under this section, the judge or magistrate does not act in a judicial capacity, but as a persona designata (nominated for the purpose):81

The power to make an order lowering marriageable age is discretionary and, although the exercise here is strictly not a judicial act, it is suggested that it would be exercised on similar lines when, as here, it is entrusted to a judicial officer.82

5.37 The discretion can only operate where s 12(2) of the Act applies: The Judge or magistrate shall, subject to sub-section (4), hold an inquiry into the relevant facts and circumstances and, if satisfied that —

[page 247] (a) the applicant has attained the age of 16 years; and (b) the circumstances of the case are so exceptional and unusual as to justify the making of the order; the Judge or magistrate may, in his or her discretion, make the order sought, but otherwise the Judge or magistrate shall refuse the application.

No other guidelines for the exercise of the discretion are provided in the Act. Since the majority of applications under s 12 have been made to magistrates, whose decisions are not reported, the only guidance available as to judicial attitudes in this area is in reported decisions of the small number of applications that have been made to judges. No clear policy emerges from them, except perhaps the predictable one that an application is more likely to be granted if the magistrate considers the parties concerned are likely to make a successful marriage. Section 12(2)(b) requires the judge or magistrate to be satisfied that the circumstances of the case are ‘so exceptional and unusual’ as to justify making the order. The meaning to be attributed to the word ‘so’ has been the subject of varying judicial opinion over the years. In Re Z,83 Joske J held: It is to my mind clear that the judge must satisfy himself that the circumstances are exceptional and unusual so as to justify the making of the order. (emphasis added)84

In Re an Application by P & P,85 Crockett J rejected Joske J’s

interpretation as based on what Crockett J regarded as an unwarranted change to the clear wording of the provision. Crockett J concluded that by placing the word ‘so’ before the words ‘exceptional and unusual’, the circumstances must be other than commonplace — that is, out of the ordinary — as held in previous cases,86 and in addition: … the circumstances must be ‘very’ exceptional or ‘extremely’ exceptional.87

In the 1997 Western Australian case of Ex parte Amie Dorothy Willis,88 White J held that the word ‘so’ in the phrase ‘so exceptional and unusual’ should be understood as ‘sufficiently’ rather than as ‘very’ or ‘extremely’,89 stating: The difficulty, as I see it, with great respect, in treating the word ‘so’ as meaning ‘very or extremely’ is that, grammatically, one cannot substitute either of the latter words in place of ‘so’ in the context in which it appears. It would be ungrammatical, in my respectful opinion, to read the subsection as providing: ‘the circumstances of the case are very (or extremely) exceptional and unusual

[page 248] as to justify the making of the order.’ The word ‘as’ where it appears renders the former construction impossible. One could, however, substitute the word ‘sufficiently’ for the word ‘so’ without doing any injury to the sense or the grammar of the passage in question.90

Consequently, the threshold test (until a higher court rules otherwise) arguably is that the judge or magistrate must be satisfied that sufficiently exceptional or unusual circumstances exist to make an order authorising the under-age person to marry. 5.38 What circumstances then have been held to be ‘so exceptional and unusual’ to satisfy the provision? To say that this will depend on the circumstances of each case is certainly in line with authority, but is not of much assistance with the question whether in any given case an application is likely to succeed. One obvious circumstance is the pregnancy of the female party

to a proposed marriage. The orthodox view of the law has usually been that pregnancy of itself is not a sufficiently exceptional and unusual circumstance. As Selby J said in 1964, it was an ‘unfortunate fact that it cannot be regarded as exceptional, or unusual, to find that a 15 year old girl has become pregnant’.91 In 1970 in Re Z,92 Joske J added, however, that: … if a judge is able to conclude on the evidence before him that it indicates that the marriage is likely to be a successful, happy marriage, in my opinion, he is able to say that this is ‘out of the ordinary’, and that it is ‘exceptional and unusual’, since so many marriages of people of the young age referred to in s 12 have been absolute failures and doomed to failure from the start.93

While such a view may be arguable, it is submitted that it is much too widely stated. The fact that a young couple, at the time of the application under s 12, are evidently in love and happy about their proposed marriage, does not, of itself, bring the case within the ‘so exceptional and unusual’ category. The great majority of young couples are probably similarly in love, even if statistically a large percentage of them will subsequently lose interest in the marriage and separate. It is illogical, therefore, to argue from that fact alone that the marriage is likely to be successful in the future. 5.39 Nonetheless, there are some older cases where pregnancy has been taken to constitute sufficiently exceptional and unusual circumstances to permit an order being made.94 The circumstance that the child would be born out of wedlock and the stigma attached to the child’s parents has been termed the ‘turning point’ of [page 249] the case. Even the fact that the subsequent marriage of the child’s parents would legitimate the child (by virtue of s 89 of the

Marriage Act) does not seem to have been considered a sufficiently strong argument to the contrary. Whether these arguments would be accepted now is open to considerable doubt. Nevertheless, in the relatively recent case of Ex parte Amie Dorothy Willis95 (see 5.37), the court commented that while pregnancy of a female not of marriageable age may not in itself be exceptional and unusual, it may be taken into consideration together with other factors. In addition to the applicant’s pregnancy in this case, the court noted factors such as parental support, well-advanced wedding plans, and the fact that both parties were in paid employment and saving for a deposit for a house.96 Again, this appears to reflect an intention to permit marriages where stability seems likely, in spite of the difficulties inherent in such predictions. Of more concern, one wonders how young adults with less in the way of resources and parental support might fare. 5.40 Another conflict may arise where an applicant is a member of a foreign ethnic community whose customs and practices differ from those common in the Australian community. In one such case, Re SG,97 Blackburn J refused an application on the basis that the ‘so exceptional and unusual’ circumstances must relate to the particular person of the applicant and not to the class of persons of whom he or she is a member. Yet in a very similar case, Re D, an unreported decision of Bridge J in the Supreme Court of the Northern Territory,98 these kinds of circumstances had persuaded the court that it was justified in making an order lowering the age of the applicant. 5.41 Another case in which s 12 is discussed is K v Cullen.99 This was an appeal against the decision of a magistrate refusing to make an order under s 12(2). It was brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth) to a single judge of the Federal Court and was heard by Moore J. The judgment discussed the structure of the section and characterised

the magistrate’s decision as an administrative act. Moore J then examined the magistrate’s reasoning. The applicant was a 16-yearold girl who was living in a steady relationship with her fiancé. The couple had had a child and wished to marry. The magistrate had held that in his view, there were no exceptional and unusual circumstances in the case, without particularising any of the circumstances. On this point, Moore J quoted [page 250] Joske J’s decision in Re Z100 (see 5.38) and adopted Joske J’s analysis of the meaning of ‘so exceptional and unusual’. She also said, specifically, that the fact that the couple were living together, had a child and were rearing him ‘must stand them apart from the usual circumstances contemplated by s 12(2)(b)’.101 In the result, her Honour held that the magistrate’s decision disclosed an error of law and that must be set aside. 5.42 Having regard to these variations and discrepancies, it seems that it would be desirable to bring the criteria in s 12 into line with what may be regarded as the object of the Act, namely to ensure as far as possible that marriages be entered into only by those parties who are emotionally and, in other respects, of sufficient maturity to undertake the responsibilities of marriage. Since the introduction by the Family Law Reform Act 1995 (Cth) of the court counselling service, judges have had an opportunity to consult appropriate, qualified professionals (now called family consultants) attached to the court in order to gain some appreciation of these factors in relation to the parties before the court. In fact, the ability to consult with a family consultant has been specifically added to the Marriage Act by the Marriage Amendment Act 1976 (Cth) in relation to cases where a judge is asked to permit a minor to marry without parental consent, which would otherwise be required.102

5.43 Returning to the case of K v Cullen, after Moore J had shown her agreement with Joske J and set aside the magistrate’s decision of refusal to make the order sought, where did that leave the applicant and her fiancé? The answer, unfortunately, must be ‘precisely nowhere’. Moore J held that she had no power to make a decision in place of the magistrate. The decision of the magistrate was final — in a limited sense. The Act does not provide a right of appeal against a magistrate’s order under s 12 and, consequently, there is no judge with the power to substitute his or her opinion for that of the court below. The appeal had been brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth), seeking to have reviewed a decision of a magistrate made under s 12 of the Marriage Act. However, that decision having been set aside, there appears to be no provision for another decision being substituted for it. Neither is there a power in the Marriage Act to remit the matter to the magistrate. Under s 19(1), a further application under s 12 may be made after a period of six months has elapsed since the previous decision. However, this also requires an applicant to satisfy the magistrate or judge hearing the fresh application that ‘there has been a substantial change in the relevant facts or circumstances since the refusal of the former application’.103 It would seem barely arguable in the [page 251] present case, on a fresh application, to say that Moore J’s reasoning constituted such a substantial change. In the result, the applicant’s victory was a pyrrhic one. Perhaps this unsatisfactory ending influenced Moore J too, who said that the ‘relief … given in this matter should not be taken as an indication that relief will issue in any similar application if reviewable error is established’.104

This jurisdictional difficulty also surfaced in Ex parte Amie Dorothy Willis105 (see 5.37), as evidenced by an application by counsel at the start of the trial to amend the basis of the application to seek an order to quash the original decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth). As we have seen, White J granted the order in this case and ended the reasons by noting the matter was to be remitted for rehearing by the Court of Petty Sessions. There was no discussion of K v Cullen on this point, and s 12 has not been amended to overcome the problem. Thus, it is not clear if White J disagreed with Moore J or the matter was overlooked. However, even if the Court of Petty Sessions reheard the matter in breach of s 19(1) (in other words, no new circumstances), the validity of any consent given in those proceedings would be preserved under s 19(2). The matter could be remedied by providing for an appeal against a decision given under s 12 with an accompanying power to remit, or to substitute the reviewing judge’s opinion for that being reviewed. 5.44 Where an order authorising a person under marriageable age to marry is made, it has the effect of rendering the applicant ‘of marriageable age’, but only in relation to the particular marriage in respect of which the application was made.106 The order is valid for three months, and if the marriage authorised by it is not entered into within that time, it lapses.107 Where a person who is not of marriageable age, and in relation to whom no order has been made or is valid under s 12, goes through a form of marriage, that marriage would be void under ss 23(1)(e) and 23B(1)(e): see 6.52ff.108

Consent to the marriage of minors 5.45 In addition to judicial permission (see 5.36–5.44) a minor, as defined in s 5(1) of the Marriage Act — that is, a person under the age of 18 years — requires written consent in order to marry.

However, this consent is not required if the minor has previously been married.109 The person whose consent is required is specified in s 14 of the Act. This section must be read with the Schedule to the Act to determine whose consent is required. Unless a child has been adopted, Pt I of the Schedule nominates the [page 252] minor’s parents, except where they are not living together, or where they have both been deprived of the ‘custody’ of the minor. In cases where the parents are separated, or where one of them is dead, it will usually be the parent with whom the minor is living, or the surviving parent. In other cases, it may be the person or persons having ‘custody’ of the minor, or the guardian or guardians, or a prescribed authority. Part II of the Schedule has been deleted and Pt III deals with children who have been adopted. These provisions follow a similar pattern to that applying to children who have not been adopted, the adoptive parent/s taking the place, where appropriate, of the biological parent/s. The provisions of the Schedule should be looked at in detail in order to follow the effect of ss 14–21. 5.46 Failure to obtain the necessary consent does not render the marriage void.110 It is, however, an offence to marry a minor, punishable by a $500 fine or imprisonment for six months,111 unless the defendant reasonably believed that the minor was over the age of 18 years, or had previously been married, or that the required consent had been given or dispensed with under the Act.112 5.47 Consent may be dispensed with in certain circumstances by a prescribed authority on written application by a minor wishing

to marry.113 A prescribed authority is an authorised marriage celebrant or a justice of the peace who has been appointed by the Attorney-General as a prescribed authority.114 The power of a prescribed authority to dispense with consent is, however, limited to certain enumerated circumstances, namely where the required consent cannot readily be obtained and where the prescribed authority has no reason to believe that that consent would be refused if it could be obtained, and where the prescribed authority has no reason to believe that facts rendering such consent improper may exist.115 This provision cannot be used where consent has been refused.116 Where that is the case, the Act provides for an application to be made to a judge or magistrate under s 16(1). ‘Judge’ here, according to the definition in s 5, means a judge of the Family Court of Australia or of the Federal Circuit Court who has been appointed by the Attorney-General for the purpose of the section, or a judge of a state court in respect of whom an appropriate arrangement for this purpose has been made pursuant to s 9 of the Marriage Act, or a judge of the Supreme [page 253] Court of a territory, as provided by amendment to s 16(1) made by the Marriage Amendment Act 1976 (Cth). By s 9A(1) of the Marriage Act,117 provision is made for phasing out the exercise of powers or function under that Act by judges ‘otherwise than by a Judge who is a Judge of the Family Court of Australia or of the Family Court of a State or a Judge of the Federal Circuit Court of Australia’. 5.48 The scope of an application under s 16 of the Act is strictly circumscribed. The magistrate or judge has power to give consent in place of the person who refused consent to the marriage of the minor only if, after holding a full inquiry into the relevant

circumstances, he or she is satisfied that that refusal was unreasonable.118 If the application relates to a refusal by a prescribed authority to dispense with consent pursuant to s 15, the procedure is similar and the magistrate or judge may give consent on being satisfied that it would be unreasonable to refuse the consent. 5.49 Section 17 provides for a rehearing by a judge where an application has been refused or granted by a magistrate (but not by a judge), or against the granting of such an application. On such a rehearing, the judge proceeds similarly to the procedure laid down for an original hearing, as set out in s 16.119 No further appeal is available under the Act. 5.50 Applications under s 16 are naturally less common than they were before the age of majority was reduced to 18 years. The provision has been described as an uneasy attempt to uphold parental authority, while at the same time discouraging parental objections that are not well-founded. There are those who would advocate the removal of any requirement of parental consent for those of marriageable age (which a minor would be once court consent is obtained), which they may regard as a hangover of a stricter family regime in relation to young persons and their protection than is generally the case today. 5.51 Possibly the provisions are the best that could be devised at the time they were enacted. As in the case of s 12 of the Marriage Act, the proceedings are not legal proceedings in the strict sense of the words. A judge is chosen to exercise the power because judges by training and experience are qualified to inquire into facts and to apply criteria — such as those spelt out in s 16 — to those facts. The inquiry is held in private and the judge is not bound by the rules of evidence.120 In any [page 254]

event, with the lowering of the age of majority, these cases have diminished almost to vanishing point.121

Formalities 5.52 The formalities for the solemnisation of marriages in Australia are set out in Pt IV of the Marriage Act. In addition, Pt V provides for the solemnisation of ‘Australian’ marriages overseas by Defence Force chaplains. Some detailed amendments in relation to formalities were effected by the Marriage Amendment Act 1985 (Cth) and the Marriage Amendment Act 2002 (Cth). Failure to comply with certain formalities does not necessarily render a marriage invalid as it may be saved by s 48(2) or (3) of the Marriage Act (for discussion, see 5.82), or presumed to be valid at common law (see 5.75–5.78).

Marriages in Australia by authorised celebrants 5.53 A marriage in Australia must normally be solemnised by or in the presence of an authorised celebrant.122 The list of authorised celebrants is a long one. The law has come a long way since the stringencies of Lord Hardwicke’s original Act (see 5.23), and parties intending to marry now have a wide choice of who should perform the ceremony, and how and where. 5.54 Authorised celebrants are: first, ministers of religion registered under the Marriage Act; and second, persons authorised to solemnise marriages, either under the law of a state or territory, or by the Commonwealth Attorney-General by instrument in writing.123 The registration of ministers of religion is dealt with in Pt IV Div 1 Subdiv A (ss 25–38) of the Marriage Act. The registration of civil celebrants is dealt with in Pt IV Div 1 Subdiv C (ss 39A–39M). The Act provides for the appointment of registrars and deputy registrars of ministers of religion in each state and territory.124 It is

the duty of these registrars to register ministers of religion who are entitled to registration under the Act.125 The conditions governing eligibility for registration are laid down in s 29. Four conditions must be satisfied. The minister must be: (a) a minister of a denomination recognised by Proclamation of the GovernorGeneral under s 26 of the Act; (b) nominated for registration by that denomination; (c) ordinarily resident in Australia; and (d) at least 21 years of age.126 [page 255] However, this eligibility is not an absolute entitlement, for a registrar may refuse any registration if there are already enough ministers of the denomination in question registered in the locality, or if the applicant is not a fit and proper person, or is unlikely to devote a substantial amount of his or her time to the performance of the functions of a minister of religion.127 The Act also provides for the appointment of a Registrar of (civil) Marriage Celebrants.128 The registrar is required to maintain a register of marriage celebrants.129 Three conditions must be satisfied before an individual is entitled to registration as a marriage celebrant.130 The registrar must be satisfied that the person seeking registration: (a) is aged 18 years or over; (b) has all the qualifications and/or skills as required by reg 37G of the Marriage Regulations 1963 (Cth); and (c) is a ‘fit and proper person to be a marriage celebrant’.131 In determining the fitness of the applicant, the registrar may take into account anything he or she considers relevant, but is required to consider a number of factors including the applicant’s standing in the community, criminal history and whether the applicant may have an actual or potential conflict of interest arising from other business interests.132 The Act (s 39G) and Regulations (reg 37L) set out in some detail the obligations of civil

celebrants, including compliance with a Code of Practice introduced in 2003.133 5.55 The Act also recognises registrars of marriages appointed under state or territorial law as competent to solemnise marriages.134 Additionally, the Attorney-General may authorise other state or territorial officers or other suitable persons to solemnise marriages.135 Under the last-mentioned provisions, the Attorney-General has appointed ministers of religious denominations which are not recognised under the Act, as well as a number of civil marriage celebrants. 5.56 As previously mentioned (see 5.53), a marriage must be solemnised by or in the presence of an authorised celebrant.136 In the 1998 case of W v T,137 the Full Court held that, provided the authorised celebrant has consented to attend the ceremony for the purpose of ensuring its validity, the celebrant’s mere presence, rather than any active participation, is sufficient for the purpose of the Marriage Act.138 [page 256] The manner of solemnisation is laid down in ss 41–46 of the Act. The following seven requirements must be observed: 1.

2.

Written notice of the intended marriage must be given to the authorised celebrant who is to solemnise the marriage at least one month before the date of the marriage (and not earlier than 18 months before the date of the marriage).139 An official birth certificate or an official extract must be produced in respect of each party, or a statutory declaration giving the information, where it is impracticable to obtain such a certificate, or a foreign passport showing the date and place of birth of the party.140 Interestingly, an Australian

3.

4.

5.

6.

passport is not sufficient for this purpose. Each party must certify as to their conjugal status, and their belief that there is no legal impediment to the marriage.141 If a party is divorced or widowed, evidence of the divorce or of the death of the former spouse must also be supplied.142 A marriage may be solemnised on any day, at any time, in any place.143 Ceremonies in gardens and parks are now commonplace when conducted by civil celebrants. There must be at least two witnesses to the marriage, who must both be over the age of 18 years.144 Non-conformity with this requirement does not render the marriage invalid.145 A civil celebrant (but not a religious celebrant) is required by the Act to explain to the parties the legal nature of marriage, in words set out in s 46(1) or words to the same effect. The formula prescribed includes what is virtually a direct adaptation of Lord Penzance’s definition of marriage in Hyde v Hyde146 (see 5.4): ‘Marriage, according to law in Australia, is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.’ This requirement, and any legislative prescription as to the form of the ceremony, does not apply to a minister of religion — presumably because the rites of that religion will make provision to the same effect.147 As to the form of a nonreligious ceremony, it is sufficient if each of the parties says to the other, in the presence of an authorised celebrant, the words ‘I call upon the persons here to witness that I, (husband or wife), take thee, (name of other party), to be my lawful wedded (wife or husband)’ or words to that effect.148 [page 257]

7.

After the ceremony, a marriage certificate must be prepared, and must be signed by the parties, the celebrant and the

witnesses. A copy is to be handed to one of the parties, and another copy forwarded to the registered authority in the state or territory concerned. Another copy is kept by the celebrant, to be subsequently stored with the parish or other records normally kept by the denomination in question.149 The regulation also makes provision that if the authorised celebrant was a civil celebrant authorised under s 39(2) of the Act, they may destroy the certificate retained by them after the expiration of six years after the solemnisation of the marriage.150

Consular marriages in Australia 5.57 The Marriage Act permits marriages of foreign nationals within Australia by appropriate consular officials. The diplomatic or consular officers can only be from certain proclaimed overseas countries. The Governor-General may declare by proclamation that a country is a ‘proclaimed overseas country’ for this purpose.151 At least one of the parties must possess the nationality of the proclaimed overseas country.152 Neither of the parties to such a ceremony has to be an Australian citizen.153 Moreover, some of the rules of Australian domestic law are applied to foreign consular marriages within Australia: the parties must not be within the prohibited degrees as defined in the Marriage Act, neither must be married already, and Australian requirements of minimum marriageable age apply.154 There are certain machinery provisions for the registration of such consular marriages and the keeping of a register for that purpose155 by a Registrar of Foreign Marriages appointed under the Act.156

Australian marriages overseas 5.58

Part V of the Marriage Act was amended by the Marriage

Amendment Act 2002 (Cth) to remove the ability of certain Australian embassy and consular officials to marry Australian citizens overseas. This practice had, in any event, ceased by 1993. 5.59 Division 3 of Pt V, however, makes provision for marriages overseas to be performed by a chaplain in the Defence Force, if at least one of the parties to the [page 258] proposed marriage is a member of the Defence Force.157 Again, the procedure and formalities are similar to those in relation to marriages in Australia, except that a chaplain is given somewhat more latitude as to the form and ceremony to be observed, no doubt having regard to the more difficult conditions in which he or she may be operating, particularly in time of war.158 The recognition rules contained in Pt VA, which are discussed in the next section, do not apply to Defence Force marriages overseas.159

Recognition of foreign marriages Introduction 5.60 In what circumstances will a marriage160 celebrated in an overseas country be recognised as valid by Australian law? The law will not simply recognise any marriage celebrated anywhere but, as in the case of overseas divorces, the law has over the years formulated fairly complex rules for distinguishing those marriages that will be recognised from those that will not. Until 1986, the Australian recognition principles were found in the common law rules of private international law preserved by s 22 of the Marriage Act. The common law drew a distinction between formal validity of marriage and essential validity or

capacity. Formal validity (the ceremony) was governed by the law of the place where the marriage was celebrated: the lex loci celebrationis. According to orthodox doctrine, essential validity (the parties’ capacity) was governed by the laws of their antenuptial domiciles. Domicile is a relatively strong connecting factor in the law of personal status — to be domiciled in a particular country, a person has to have real links with it. 5.61 The Australian recognition rules were changed by the Marriage Amendment Act 1985 (Cth) which introduced a new Pt VA into the principal Act. These provisions, which commenced on 7 April 1986, are retrospective in their operation (in contrast to the new ss 23A and 23B, governing marriages celebrated in Australia after that date: see 5.27). Consequently, the new recognition rules contained in Pt VA apply to all foreign marriages, whenever contracted.161 5.62 The general effect of the amended rules is to give primary importance to the law of the place of celebration. The former distinction between formal and essential validity is no longer relevant. The law of the place where the marriage takes place — the lex loci celebrationis, which previously only governed the [page 259] ceremony — now governs all aspects of validity. This general principle is made subject to certain rules of Australian domestic law. 5.63 Part VA (ss 88A–88G) of the Marriage Act is based on the Hague Convention on Celebration and Recognition of the Validity of Marriage. concluded on 14 March 1978. In essence, the general principle underlying the Convention is that validly contracted marriages should be recognised in other jurisdictions, though the Convention provides for exceptions.162

5.64 Thus, the form of ceremony must comply with the requirements of the lex loci celebrationis. In the 1930 Privy Council case of Berthiaume v Dastous,163 a man and a woman, both domiciled in Quebec, Canada, sought to contract a marriage in France. In doing so, they failed to submit to the formal requirements of that country which involved producing a civil marriage certificate to the officiating priest — no valid marriage being possible without one. The parties had not done so, but had merely gone through a religious ceremony. Subsequent nullity proceedings were dismissed by the Canadian courts which held the marriage valid on the basis that under the law of the parties’ domicile — that is, Quebec — the marriage would have been valid. On appeal, the Privy Council held the marriage void. In the words of Lord Dunedin: If a marriage is good by the laws of the country where it is effected, it is good all the world over, no matter whether the proceeding or ceremony which constituted marriage according to the law of the place would or would not constitute marriage in the country of the domicil of one or other of the spouses. If the so-called marriage is no marriage in the place where it is celebrated, there is no marriage anywhere, although the ceremony or proceeding, if conducted in the place of the parties’ domicil, would be considered a good marriage.164

This decision has been consistently followed since then, even to the point of holding proxy marriages165 valid if they were valid by the lex loci, though under UK or Australian laws no provision for such marriages exists.166 The 1983 case of Re B167 involved a proxy marriage in Lebanon to which an Australian man was a party. In this case, it was held by Fogarty J that the marriage was valid as to form, but void because the female party was only 15 and s 11 of the Marriage Act applied.168 [page 260] 5.65 The courts have developed an exception to the general rule that formal compliance with the lex loci celebrationis is required.

The so-called ‘common law marriage’ doctrine was developed in the context of post-World War II conditions in Europe where — with the collapse of the civil administrations in Germany and Italy, and the presence of large numbers of Allied military forces and of civilian displaced persons from countries formerly occupied by the Axis powers — it was not always easy or indeed possible to comply with local marriage laws. The same doctrine was invoked in the context of disrupted conditions in South-East Asia in the second half of the twentieth century. The common law marriage doctrine operates to save a marriage that does not comply with the formalities required by the lex loci, but does comply with the formalities of English common law; that is, the law prior to Lord Hardwicke’s Clandestine Marriages Act 1753 (UK) (see 5.21ff). For the doctrine to operate, it seems that either compliance with the local forms must have been physically impossible, or one of the parties was a member of a belligerent occupying force in the country concerned. According to mainstream case law, it is not sufficient that the parties simply chose not to submit to local law. 5.66 An example of an Australian case in which the common law marriage doctrine was unsuccessfully argued is Marriage of X.169 The parties went through a ceremony of marriage in Ho Chi Minh City in August 1978. The law of Vietnam at the time required parties to attend a civil office to register the marriage; the parties in question failed to do this. They went through a traditional form of ceremony conducted by the husband’s mother. After being in a refugee camp, they eventually came to Australia. The Family Court (Watson J) held the marriage to be void. His Honour found on the facts that it had not been impossible to comply with local forms, and held that it was not sufficient for parties simply to choose not to submit to local law. His judgment evidences an intention not to extend the doctrine further in Australia: The necessary civil authority and facilities were operative. They were not displaced

by post-bellum chaos as in say Germany or Italy during 1946. The fact that the parties did not avail themselves of registration because of their actual or intended refugee status does not alter the fundamental necessities for validity. Deprivation of liberty or risk of punishment cannot of themselves alter basic principle. If Australia considers that migrants in the apparent state of terror these parties found themselves in should have their marriage recognised, some amendment of statute law is necessary. Such a vast step is not available by judicial interpretation.170

[page 261]

The ‘new’ statutory recognition rule: local law 5.67 Sections 88C(1) and 88D(1) of the Marriage Act (as amended in 1985) state the new choice of law rule: a foreign marriage that is recognised as valid by the law of the country in which it was celebrated, ‘the local law’, will be recognised as valid in Australia. This principle applies irrespective of whether that country is a party to the Hague Convention and, as already pointed out, irrespective of the date of the marriage: see 5.61. Moreover, if a marriage is invalid under local law at the time it is celebrated, but becomes valid under that law at any time subsequently (eg if local law changes), it is to be recognised as valid in Australia.171 This retrospective validation principle derives from Art 9 of the Hague Convention. 5.68 The provisions of Pt VA of the Marriage Act are, however, more complex than a simple reference to the local law alone. In accordance with Art 11 of the Hague Convention, s 88D(2) contains certain derogations from straightforward reference to the local law. The effect is to incorporate into the rules for recognition of foreign marriages certain provisions of Australian domestic law on capacity. First, a foreign marriage that is valid according to the local law of the overseas country will not be recognised if either party is validly married to another person at the time.172 Presumably, this would deny recognition under the Marriage Act to a foreign

polygamous marriage contracted in an overseas country, the law of which permits polygamy. However, a party to such a marriage could apply under s 6 of the FLA for principal or ancillary relief from the Family Court of Australia (eg for divorce, nullity, maintenance, parenting orders or property division). The operation of s 6 (see 5.7 and 5.8) is preserved by s 88E(4) of the Marriage Act. The policy of s 88D(2)(a) is questionable. Why should Australian law not recognise a polygamous marriage contracted by two foreigners in their home country which permits polygamy? What is the interest of Australian law in the matter? Conceivably, however, such a marriage might be recognised as valid under s 88E, which is discussed at 5.71–5.72. 5.69 Further, s 88D(2)(b) requires both parties to a foreign marriage to be of marriageable age according to Australian law173 where one of the parties to the marriage is an Australian domiciliary. The policy of this is not novel; s 10(2)(b) of the Marriage Act has for some time applied Australian rules on marriageable age to the marriage of a person domiciled in Australia, wherever the marriage takes place. That provision was applied in the 1983 case of Re B174 to hold void a marriage by proxy in Lebanon between a 15-year-old girl and an Australian man of marriageable age. Comparable provisions of UK legislation had been given similar [page 262] effect in the earlier case of Pugh v Pugh.175 However, the principle is carried a step further by s 88D(3), which absolutely prohibits the recognition of foreign marriage between parties domiciled outside Australia while either party is under 16 years of age. Nevertheless, it is possible that such a marriage would be recognised as valid under s 88E.

5.70 Finally, s 88D(2)(c) and (d) prevents the recognition of an overseas marriage where the parties are within the prohibited degrees according to Australian law and where there was no real consent as conceived by Australian law. These provisions are likely to cause little trouble. We have already noted that Australian provisions on prohibited degrees are generous:176 see 5.33. Other provisions of s 88D deal with voidable marriages and with the issue of second or subsequent marriages contracted when an unrecognised first marriage was still in existence.177

Recognition at common law 5.71 Section 88E of the Marriage Act as amended in 1985 preserves the operation of the common law rules of private international law, if those rules would recognise a foreign marriage that would not be recognised under the provisions of ss 88C and 88D. This alternative is in accordance with Art 13 of the Hague Convention and the general principle favor matrimonii (that marriages genuinely entered into should be upheld). Of course, Art 13 is not mandatory and current Australian law would no doubt have been far simpler if the 1985 legislation had simply abolished the common law recognition rules and made the new statutory rules contained in ss 88C and 88D conclusive of the validity question. Instead, the same approach was adopted as that favoured in relation to the recognition of foreign divorces,178 namely that of preserving the old judge-made law alongside the new statutory recognition rules, with the aim of recognising the validity of the greatest number of marriages. Unfortunately, again, as is the case with overseas divorces, it is not easy to reconcile the statutory grounds of recognition with the common law rules. The interpretation of the new provisions of the Marriage Act poses some not inconsiderable problems.179 5.72

The basic principle of s 88E is that a marriage will be

recognised as valid in Australia if it would be recognised as valid according to common law rules, though [page 263] not by the new rules provided in ss 88C and 88D. What, then, are the common law recognition rules? At common law, a foreign marriage will be recognised as valid if, first, the formalities satisfy the requirements of the law of the place of celebration and, second, the parties have capacity under the laws of their ante-nuptial domiciles, as noted at 5.68–5.70.

No recognition of ‘foreign’ same-sex marriages 5.73 The emergence overseas of legal same-sex marriage has raised the spectre that the Australian Government might be forced to recognise such marriages as valid in Australia.180 In 2004, implacably opposed to such an outcome, the government of the day ensured that would not happen by inserting s 88EA in the Marriage Act,181 which stipulates that a same-sex union solemnised in a foreign country ‘must not be recognised as a marriage in Australia’: see the discussion at 1.60–1.63 and 5.10. Moreover, s 88B(4) was also added182 to ‘avoid doubt’ that in relation to Pt VA (dealing with recognition of foreign marriages), ‘marriage has the meaning given by subs 5(1)’ (ie ‘marriage means a union between a man and a woman …’). Thus, not even s 88E can make a same-sex marriage, validly performed overseas, valid in Australia. It will be interesting to see if s 88E survives any future challenges (eg an argument based on discrimination against the rights of gays and lesbians to ‘marry’ a person of the same sex, as has occurred in some overseas countries, such as Canada, South Africa and the UK) or whether a future parliament will remove this provision. Nygh argued that, at least at the moment, the Hague

Convention does not require recognition of such marriages, as the Convention applies to marriage ‘in its broadest international sense’ and that does not yet include same-sex marriage. However, he posited that this may change in the future183 and then the question would arise as to whether s 88EA would be consistent with Australia’s obligations under the Convention. There is growing political pressure on the Federal Government to allow for samesex marriage in Australia on grounds other than constitutional invalidity. Advocates for marriage equality point to the growing recognition of same-sex marriage in overseas countries for support for change to the law in Australia. They also point to two developments in Australia that facilitate foreign same-sex marriage by couples [page 264] living in Australia.184 First, the Australian Department of Foreign Affairs and Trade will issue certificates of non-impediment to marriage to Australian couples wishing to marry overseas.185 Second, while a same-sex marriage entered into overseas is not recognised in Australia, since 27 June 2014 it is possible for a same-sex couple to marry in UK consulates in Australia if at least one member of the couple holds UK citizenship.186 The first marriage in a UK consulate took place on 27 June 2014.187

Presumed validity of marriage 5.74 There can be difficulties ascertaining whether a person has the capacity to enter into marriage where that person appears to have entered into two marriages, but has not divorced the first spouse. Where it is clear that there are two properly contracted marriages, and no intervening or valid divorce, the second marriage will be void. There have been instances, however, where there was no conclusive proof of one of the marriages in question.

Nevertheless, one does not always need conclusive proof of a marriage for a court to find a marriage exists, due to the operation of two common law presumptions. The first presumption is that a man and a woman who have cohabited as husband and wife for a long time, acquiring the reputation and holding themselves out as married, even without any affirmative evidence of their being married, are validly married. This presumption can be overcome only by strong and weighty evidence to the contrary.188 The second presumption deals with cases in which there is evidence that the parties went through a ceremony of marriage. Such a ceremony is presumed to have resulted in a valid marriage unless, again, there is decisive evidence to the contrary. [page 265] 5.75 The presumptions were of particular value in former times when there was no, or not very effective, registration of marriages. Literacy and communications were also less well-developed than they are today. Proof in these circumstances was often difficult to obtain and the presumptions served to provide some degree of certainty in a sensible and pragmatic fashion. Today, the need for such an imprecise method of proving a valid marriage is greatly diminished, but the presumptions may still be invoked, particularly in the case of people who were purportedly married overseas and where there are no available records relating to their alleged marriage.189 5.76 Dixon J stated the second presumption in Axon v Axon190 as follows: Upon proof that a marriage ceremony had been duly performed between herself [the appellant] and the respondent, a presumption arose in favour of the validity of the marriage. It is said that the presumption is confined to the regularity and efficacy of the ceremony as a lawful mode of marriage. This, in my opinion, is not correct. The presumption in favour of the validity of a marriage duly celebrated

casts upon those who deny it the burden of producing reasonable evidence of the fact which renders the marriage void, whether that fact is an impediment consisting in a prior marriage or a prohibited degree of relationship, or the failure to fulfil some condition indispensable to the efficacy of the ceremony.191

The conclusion in such a case comes down to balancing the probabilities. The strength of this presumption (and the problems that shortcomings of evidence may present) was seen in Kirby & Watson.192 A marriage had been entered into in 1962, of which there were two children. According to the husband, the wife had left him and the children in 1967 and he had never heard from her again. Neither the police nor a private enquiry agent had been able to trace her. In May 1976 the husband had married again, describing his status as that of a bachelor. The wife to this second marriage subsequently sought a decree of nullity on the ground of the husband’s prior marriage. There was no evidence before the court that the husband had obtained a divorce from his first wife or that the marriage had come to an end by the death of the first wife. Watson J made an exhaustive review of the cases, including those on one of the old grounds for nullity: presumption of death. He discussed the role of presumptions as to the continuity of human life and of the validity of marriage and said: ‘Once [page 266] there is a challenge to the validity the court, being put on notice, should apply ordinary rules of common sense to the inferences to be drawn from what facts are known.’193 In the circumstances of this case, on the meagre evidence available, Watson J found himself unable to presume the first wife dead. He accordingly felt compelled to declare the first marriage valid and the second ‘marriage’ void. Another example is seen in Kousal & Tack,194 where the husband

was unable to rebut the presumption of marriage raised by an extended period of cohabitation with the wife in circumstances where they had both held themselves out as married. In this case, there was some evidence as to a marriage ceremony between the parties in 1949 in Czechoslovakia, though it appeared that the husband’s prior marriage to a woman in 1942 was not dissolved until 1952. As the proceedings in this case actually related to property and maintenance, in order to garner jurisdiction the wife merely needed to show there had been a marriage or a void marriage. The Full Court found that the trial judge had not erred in holding the husband had not, on the evidence provided, displaced the presumption of a valid marriage to the second wife. 5.77 A more recent case in which the common law presumption of validity of marriage applied is Oltman v Harper (No 2).195 In this case, Young J concluded that the husband and wife, both born in Somalia and later becoming Australian citizens, had participated in a marriage ceremony in Australia officiated by Sheikh M. The nature of the ceremony was disputed and a number of formalities were not complied with, but the court held that s 48(3) applied and therefore the marriage was not invalid. There was evidence that the couple had lived together as husband and wife in the belief that they were married, had four children together and were regarded in their community to be a married couple. The court concluded that the husband had failed to rebut the common law presumption that the couple were married and granted a declaration of validity. Arguably, in this case both presumptions referred to in 5.74 applied, namely the presumption arising from a ceremony of marriage and the presumption that arises through cohabitation.

Second marriage ceremonies 5.78 Section 113 of the Marriage Act makes it generally unlawful for a person who is already lawfully married to go through a

further form of marriage with their own spouse,196 and a celebrant purporting to solemnise such a marriage commits an offence.197 There are, however, two sets of circumstances prescribed by s 113 in which it is possible to do so. The first of these permits a person who is [page 267] married to go through a religious ceremony of marriage with their own spouse,198 where the parties had a civil ceremony and subsequently wished to conform with the religious practices of a given denomination. There may also be cases where the parties belong to different denominations and want to have two ceremonies so as to comply with the practices of each of those denominations, or they may simply wish to renew their marriage vows. In such cases, the provisions regarding the legal formalities as to notice and the issue of certificates do not apply199 and it will not be necessary for the celebrant officiating at such a ceremony to be an authorised celebrant within the meaning of the Act.200 5.79 The other exception occurs where a doubt exists as to the legal efficacy of the form of ceremony of marriage by which the parties had been married; for example, where that event took place outside Australia or where, for any reason, there is a doubt whether the marriage would be recognised by, or could be proved in, an Australian court.201 In such an event, it is permissible for the parties to go through a form of marriage, provided they: first, furnish a statutory declaration concerning the earlier solemnisation of their marriage, and second, obtain a certificate by a barrister or solicitor to the effect that there is, in his or her opinion, a doubt concerning the first ‘marriage’, so as to bring their case within the section.202 Any document issued to the parties in consequence of such a ceremony must describe them as

being already legally married to each other at the time of the ceremony.203 5.80 The effect of s 113 of the Marriage Act is to render a second marriage void.204 An example of the operation of the section is provided by Marriage of Kapadia.205 The parties were lawfully married in Fiji in December 1985. They went through a second marriage ceremony in Australia in December 1987. The husband sought an order for dissolution of marriage in March 1991. An Australian judicial registrar dissolved the first marriage, but made no order in respect of the second marriage. The husband applied for a declaration as to the validity of the Australian marriage. Kay J declared that the Australian marriage was not valid. His Honour refused to grant the decree of dissolution206 of the Australian marriage, holding that: It is clear from the provisions of s 113 of the Marriage Act 1961 that in Australia a marriage conducted between two persons already married to each other is not a lawful marriage.207

[page 268] There being no grounds available under s 23B of the Marriage Act, Kay J concluded that it was not open to the court to pronounce a degree of nullity pursuant to s 51 of the FLA and made a declaration of invalidity. More recently, in Zau v Huang,208 a case where parties who were lawfully married in China went through a second marriage ceremony in Australia, Berman J declared the second marriage to be void and therefore a nullity. His Honour’s approach in Zau is consistent with the inescapable conclusion that a marriage that is not lawfully entered into pursuant to the Marriage Act is void. (On declarations of validity, see 6.107–6.108.)

Consequences of non-compliance with the

Marriage Act 5.81 The grounds for a void marriage set out in the Marriage Act are discussed in Chapter 6. For present purposes, it should be noted that contravention or non-observance of only some of the provisions discussed above will result in the nullity of a purported marriage. These go to the prohibited relationships (ss 23(2) and 23B(2)) and to capacity, both as regards marriageable age (ss 23(1) (e) and 23B(1) (e)) and to the single status of persons about to marry: ss 23(1)(a) and 23B(1)(a). In either of these latter cases, contravention of the provisions of the Act will also constitute an offence, carrying a penalty of five years’ imprisonment: s 94(1) and (4) (bigamy); and s 95(1) (marrying a person below marriageable age). An offence is also committed by going through a form of marriage with a person below marriageable age without the requisite consent, unless that person has been previously married. This offence carries a penalty of $500 or six months’ imprisonment.209 Failure to obtain parental consent to the marriage of a minor does not invalidate the marriage;210 neither does the failure to observe most of the formal requirements prescribed in s 42 of the Marriage Act in the case of a domestic marriage.211 5.82 One important provision is directed to the validity of marriages solemnised by persons who are not authorised celebrants. While such an act of solemnisation constitutes an offence on the part of such unauthorised person212 as well as on the part of a party knowing that the celebrant is not so authorised,213 the resulting marriage is explicitly saved from invalidity if, at the time of its solemnisation, either of the two parties believed the celebrant to have lawful authority to do [page 269]

so, and provided that the form of the ceremony that took place sufficiently established the intention of both parties to become lawfully wedded spouses by that ceremony.214 This is a similar case of ‘good faith’ to the case of legitimation conferred on the child of a ‘putative’ marriage; that is, of a void marriage where at least one of the parties to the marriage believed it to be valid.215 5.83 A number of other offences are established under the Marriage Act: Pt VII ss 94–106. Further offences, of a procedural or relatively minor nature, are constituted under the Marriage Regulations 1963 (Cth). When the Family Court considers that a criminal offence may have been committed, the court will refer the papers relating to a matter to the relevant Commonwealth authority for investigation. In Ngo v Ngo,216 for example, Cronin J referred evidence to the Commonwealth Attorney-General for an investigation into the conduct of a marriage celebrant who officiated at a marriage ceremony that the court held to be void in the absence of real consent.217

Legitimation 5.84 There is no common law doctrine by which a later marriage legitimates an otherwise illegitimate child. If a child was born out of ‘lawful wedlock’, the child remained ‘illegitimate’ even if the parents subsequently married each other. The common law rule stood in contrast to that applying in civil law countries. The Roman law doctrine of legitimation per subsequens matrimonium was received into canon law and thereafter into civil law systems. UK law was not changed until the Legitimacy Act 1926 (UK). This was followed in Australia by state legislation and subsequently by s 89(1) of the Marriage Act: A child (whether born before or after the commencement of this Act) whose parents were not married to each other at the time of his or her birth but have subsequently married each other (whether before or after the commencement of this Act) is, by virtue of the marriage, for all purposes the legitimate child of his or

her parents as from his or her birth or the commencement of this Act, whichever was the later.

5.85 The constitutional validity of s 89 and of other provisions of the Marriage Act in their original form was upheld by the High Court as an exercise of the power granted by s 51(xxi) of the Commonwealth Constitution in Attorney-General (Vic) v Commonwealth (the Marriage Act case):218 see the discussion at 4.12ff. [page 270]

De facto relationships Introduction 5.86 The regulation of relationships outside marriage raises controversial policy issues in contemporary society. In particular, it invites a conflict between the interests of legal paternalism and those of individual autonomy. Contemporary society in Australia has grown increasingly diverse — culturally, racially and ethnically. It can be argued that recognition of diversity requires the law to recognise a variety of different family forms, leaving the individual (who is accorded a high degree of autonomy by contemporary mores) to choose between them. However, the freedom of couples to choose their preferred type of domestic relationship may itself be seen as inhibited by legal regulation, particularly if that regulation imposes on less formal relationships the consequences that attach to marriage.219 5.87 Yet law — and family law in particular — is designed to play a protective role in preventing or reducing exploitation in relationships; it enshrines values that society accords to the disparate roles assumed by partners within a relationship. The

argument is sometimes made that to grant increased legal recognition to relationships outside marriage undermines the value of marriage itself.220 The law cannot, however, simply abrogate its responsibility to those outside the bounds of formal marriage. The legal regulation of relationships outside marriage raises issues of equality and non-discrimination founded not only on marital status, but also on sexuality.221 Over 20 years ago, the Australian Law Reform Commission analysed the concept of ‘equality’ and rejected formal equality (ie neutral/identical treatment between genders and sexualities) in favour of a ‘difference’ approach, arguing that equal treatment does not necessarily mean identical treatment.222 In all other areas of federal law however, following recommendations of the Australian Human Rights and Equal Opportunity Commission,223 legislation providing [page 271] formal equality for same-sex couples has been introduced in areas of law including tax, social security, health, aged care and employment224 and superannuation.225 In contrast, and notwithstanding these reforms, formal equality is not reflected in marriage law in Australia: see 5.2. 5.88 Of particular significance to family law has been the question of the extent to which the property rights of unmarried couples should be equated with those who are married. This question raises some dilemmas. On the one hand, the interests of individual autonomy would seem to require that parties be free in a pluralist society to choose between categories of relationships with substantive differences as legal institutions. On the other hand, it can be argued that the law of property adjustment serves exactly the same function on the breakdown of a de facto relationship as it does upon marriage breakdown, and so the

substance of the two laws should be the same. According to Chisholm, Jessep and O’Ryan writing extra-curially: In substance the law’s purpose is to make a property adjustment that will appropriately compensate for the economic effects of the relationship. The nature and extent of the adjustment will depend on the circumstances of the relationship. If this analysis is right, there seems no relevant difference between married and de facto couples. It may be that intentions to create a long-term relationship, and assumptions or commitments of mutual financial support, are more commonly found among couples marrying than those forming de facto relationships but the intentions of the partners at the commencement of the partnership are hardly relevant, since the purpose of property adjustment is to respond to what actually happened in the relationship rather than what was hoped for or promised. The economic consequences of the division of functions within the relationship do not depend on what expectations were held or what promises were made or assumed to be made at its start.226

In financial adjustment, the law’s purpose is remedial — to resolve with fairness the economic consequences of the breakdown of a relationship. Fairness requires [page 272] that the law aim to equalise the economic effects that the relationship has had on the parties’ respective financial positions. This means redress of the economic disparity produced by the disparate roles that parties have played in their relationship, including recognition, when it comes to adjusting assets, of the value of different types of contribution to family welfare. On such an analysis, the legal status of the relationship is arguably unimportant — it is the effect that relationship has had on the individual parties’ financial situations that matters. Consequently, there is no real justification for distinguishing, in the context of laws governing maintenance and property distribution, between marriage and less formal relationships.227 5.89 The New South Wales Law Reform Commission, in its pioneering 1983 Report on De Facto Relationships,228 advocated a

continued distinction between the two categories of relationship. The Commission rejected the approaches of equating the legal consequences of de facto relationships exactly with those of marriage.229 Instead, it favoured remedying injustices and significant anomalies in specific areas of law.230 In recommending reforms, it was guided by a number of principles: first, the recognition of freedom of choice in a pluralist society; second, the minimisation of injustice; and third, maintaining the distinction between marriage and de facto relationships, since the former involves ‘a public commitment that is not a necessary element’ in the latter.231 The Commission significantly changed its view nearly 25 years later in its Report 113, Relationships. In this latter report, the Commission recommended that the property adjustment regime be modelled entirely on the relevant FLA provisions and that the limited maintenance rights available under the Property (Relationships) Act 1984 (NSW) be expanded to mirror those available for married couples under the FLA.232 [page 273] 5.90 In recent decades much of the policy debate focused on whether same-sex couples should be included in statutory regimes governing de facto relationships and whether the substance of the rules determining the financial consequences of the breakdown of a same-sex relationship should be the same as those applying on marriage breakdown. This issue has now been addressed in an inclusive way by all the states and territories and, since 2008 by the Commonwealth, legislating to provide for the financial consequences of de facto relationship breakdown including de facto relationships between two people of the same sex. Legislators have recognised that the rules governing financial adjustment should be the same whether the couple is married or not, since the function of the law in that particular context determines its content, and the function is the same for all

couples. This view was expressed by the then Attorney-General for Western Australia, the Hon Jim McGinty MLA, when he introduced the Family Court Amendment Bill (WA) in 2001: Except for the formalities and registration of a marriage, there is often no difference between the nature and quality of a de facto relationship and a marriage. Each may involve a high degree of stability and commitment from the parties, substantial economic and emotional interdependence and the provision of care and support for children … The rights given to de facto partners under this Bill are the same rights given to married couples. This may seem inappropriate as some people choose to have a de facto relationship because they wish to avoid the obligations that the law imposes on married couples. However, this Bill also provides de facto couples with the ability to contract out of these laws by entering into a financial agreement.233

A similar view was expressed in 2008 by the Federal AttorneyGeneral, the Hon Robert McClelland MHR, when he introduced the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 (Cth): The Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 introduces significant reforms to allow opposite-sex and same-sex de facto couples to access the federal family law courts on property and spouse maintenance matters on relationship breakdown. This bill is long overdue, and gives effect to an agreement between the Commonwealth, states and territories made as far back as 2002. The bill follows the enactment of legislation by a majority of states referring necessary powers to the Commonwealth. The reforms will provide greater protection for separating de facto couples and simplify the laws governing them … The bill is consistent with the government’s policy not to discriminate on the basis of sexuality. The bill applies to both opposite-sex and same-sex de facto couples. This bill amends the Family Law Act 1975 and related legislation to create a Commonwealth regime for handling the

[page 274] financial matters of de facto couples on the breakdown of their relationship. By providing a consistent and uniform approach for de facto relationships, this bill will alleviate the administrative and financial burden currently faced by de facto couples as a result of multiple de facto regimes applying across the states and territories … This much needed reform will give separating de facto couples the same rights as divorcing couples under the comprehensive Commonwealth family law system. It provides a consistent approach to de facto property disputes across state and territory borders.234

De facto relationships and the FLA 5.91 The amendments to the FLA, introduced by the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) (the Amendment Act), came into effect for participating jurisdictions on 1 March 2009 (and in South Australia on 1 July 2010). The main aim of the change was to extend the financial settlement regime, which was only available to married couples under the FLA, to parties in a de facto relationship.235 The Amendment Act introduced the term ‘de facto financial cause’ to the FLA, which is a similar concept to ‘matrimonial cause’.236 As a result of this regime: Both same-sex and opposite-sex de facto couples will be able to access the family law system when their relationships break down. Instead of having to commence proceedings in two courts where there are parenting and property disputes they will be able to commence proceedings in one court. A further advantage is that they will be able to access specialist courts with a wealth of experience in dealing with financial aspects of relationship breakdown.237

5.92 With the enactment of these amendments, the arguments in support of a uniform law of property and financial rights for people in married and de facto relationships upon relationship breakdown have prevailed. (In Western Australia, which is not a participating state under FLA s 90RA, the Family Court Act 1997 [page 275] (WA) makes the same provision for couples in de facto relationships as the FLA.)238 Parties to relationships that are not de facto relationships under the FLA must continue to look to state and territory laws for relief. Even though the financial consequences of relationship breakdown for married couples and couples in de facto relationships are now the same, important social policy arguments about choice, autonomy, equality and protection continue to

inform debate about relationship recognition and the merits and scope of the FLA regime.239 Since 1 March 2009, the Family Courts have interpreted and applied the 2008 Amendment Act provisions and the FLA definition of ‘de facto relationship’ in s 4AA. The relevant provisions dealing with maintenance and property are considered in Chapters 10 and 12 respectively. 5.93 A declaration that a de facto relationship existed, as defined in s 4AA of the FLA, is significant for a number of reasons. First, Pt VIIIAB of the Act only applies to the parties to a de facto relationship that was in existence at 1 March 2009, unless both parties agreed to ‘opt in’ to the FLA provisions.240 A person seeking a property order under s 90SM or a maintenance order under s 90SE or s 90SG must satisfy the court that they have been in a de facto relationship. As observed by Cronin J in Vaughan v Bele,241 the question as to when a relationship came to an end (a threshold question) may raise the question whether it ever existed (also a threshold question).242 While it is necessary for an applicant to prove that a de facto relationship existed for the requisite period, and that it did not finally break down before 1 March 2009, it is not necessary for an applicant to prove that a de facto relationship existed on 1 March 2009.243 There are additional jurisdictional requirements for parties to bring proceedings under Pt VIIIAB, which are discussed at 6.115 and 12.4. The jurisdiction of the Family [page 276] Court, once established, is exclusive of state and territory laws dealing with the property of parties to a de facto relationship: s 90RC. Until a declaration has been made, the court does not have jurisdiction to make an interlocutory injunction pursuant to s 114(2A) of the FLA.244 The power to grant an injunction in

proceedings under Pt VIIIAB of the FLA is dependent upon the applicant establishing that a ‘de facto financial cause’ exists. In order to do so, and before an injunction can be granted, an applicant must establish facts central to jurisdiction:245 see 15.13. Although the court does not have jurisdiction to grant an injunction unless the relevant declaration has been made, in Norton v Locke246 the Full Court (Bryant CJ, Murphy and Benjamin JJ) concluded that the court does have the jurisdiction to determine whether it has the jurisdiction ‘purportedly invoked’, and has the power to ‘control its own process’ to prevent an abuse of process. Thus orders can be made for this purpose on an interim basis. Second, the existence of a de facto relationship is a threshold requirement to the Family Court’s accrued jurisdiction: see 4.88.247 Third, the existence of a de facto relationship is relevant to s 60H of the FLA which determines the parentage of a child born as a result of an assisted conception procedure. A person seeking to establish that they are a parent for the purposes of s 60H(1)(a) needs to prove that they were in a de facto relationship with the woman to whom the child was born at the time the assisted conception procedure resulting in the birth of that child was carried out.248 Fourth, the existence of a de facto relationship is relevant to parties who seek to rely upon a financial agreement as provided for in Div 4 of Pt VIIIAB of the FLA: see Chapter 15. The issue whether the parties were in a de facto relationship for the purposes of entering into a Pt VIIIAB agreement can arise as a basis of challenge to the enforceability of the agreement.249 If parties do not dispute the existence of a de facto relationship, they can decide to submit to the jurisdiction and seek orders by consent. Although a court is required to satisfy itself that a relationship within the FLA definition existed at the relevant dates, the parties’ testimony to the existence of the relationship

would typically satisfy the court of this jurisdictional fact.250 The point has been made by [page 277] Dickey that a difficulty would arise if one of the parties were to deny that the parties were ever in a de facto relationship, but nonetheless agrees to orders being made by consent (eg with the aim of bringing a property dispute between the parties to an end).251 In this case, it appears that the court would still need to hear the matter and make a determination as to whether a de facto relationship did exist.

The FLA definition 5.94

Section 4AA(1) of the FLA states:

A person is in a de facto relationship with another person if: (a) the persons are not legally married to each other; and (b) the persons are not related by family …;252 and (c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

There are similar, but not identical, definitions in the relevant state and territory statutory regimes, which have included a formal definition of a ‘de facto relationship’ (or ‘domestic relationship’ where applicable) in their specific legislation (or in the case of Queensland and Western Australia, in their relevant ‘Interpretation’ legislation).253 These various definitions focus primarily on a ‘cohabitation model’, which draws on a strong analogy with the marriage relationship (the consortium vitae). The case law applying the cohabitation model of a de facto relationship and the meaning of s 4AA(1)(c) is discussed at 5.100–5.104. The definition of ‘domestic relationship’ in the

Australian Capital Territory legislation is broader and is not necessarily based on cohabitation. This extension in the types of domestic relationships that may enjoy statutory rights is considered at 5.112–5.113. [page 278] 5.95 The FLA and relevant legislation across Australia (except in the Australian Capital Territory and South Australia) provide a checklist of factors or circumstances to which courts are to have regard to determine the existence of the relevant de facto relationship.254 The origins of this checklist can be traced to a 1986 decision of the Supreme Court of New South Wales in D v McA.255 In this case, Powell J, who was considering the then applicable provision that required the court to be satisfied that the parties were living together ‘on a bona fide domestic basis’, commented that: … just as human personalities and needs may vary markedly, so also will the aspects of their relationship which lead one to hold that a man and woman are, or are not, ‘living together as husband and wife on a bona fide domestic basis’ be likely to vary from case to case. This being so, it seems to me that each case will involve the court making a value judgment having regard to a variety of factors relating to the particular relationship …256

His Honour went on to list a set of non-exclusive factors or circumstances257 that have substantially been adapted into the relevant statutory definitions, including s 4AA(2). Section 4AA(2) of the FLA states: Those circumstances may include any or all of the following: (a) the duration of the relationship; (b) the nature and extent of their common residence; (c) whether a sexual relationship exists; (d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them; (e) the ownership, use and acquisition of their property;

(f) the degree of mutual commitment to a shared life; (g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship; (h) the care and support of children; (i) the reputation and public aspects of the relationship.

[page 279] 5.96

Section 4AA further provides:

(3) No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship. (4) A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case. (5) For the purposes of this Act: (a) a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and (b) a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.

As noted by Riethmuller FM in Baker v Landon,258 the definition of ‘de facto partner’ that applies to s 60H(1) is broader than the definition of ‘de facto relationship’ that applies to Pt VIIIAB. This is because s 60EA defines a ‘de facto partner’ for the purpose of s 60H to include a registered relationship: s 60EA(a). In other words, the fact that a de facto relationship is registered is conclusive evidence of the relationship for s 60EA, but is only a circumstance in s 4AA(2)(g) to which the court is to have regard for the purposes of s 4AA(1). 5.97 Consistent with general principles of interpretation, the inquiry as to whether a relationship falls within a statutory definition is to be determined according to the meaning of the words used in the statute in which it is used,259 even though case law interpreting a similar definition in other statutes can be of assistance.260 The fact that a de facto relationship is found to come within the definition in s 4AA does not necessarily mean that it

will meet the definition of a de facto relationship in another statute.261 In construing the amendments to the FLA introduced by the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth), the courts have applied a beneficial interpretation to the legislation, based on the remedial intent of the provisions.262 On this basis, the court in Nghiem v Truong,263 for example, held that it would be against the intent of the FLA to apply a strict interpretation of s 4AA(1)(c) that would require a de facto relationship to be in [page 280] existence specifically on 1 March 2009. Similarly, in Dahl v Hamblin264 the Full Court interpreted the words in ss 90RD(2)(a) and 90SB(a) in a way that placed a lesser, rather than a greater, burden on litigants and the courts in proving the periods of a relationship.

The nature of the s 4AA inquiry 5.98 In the cases decided since 1 March 2009, the courts have considered the nature of the inquiry under s 4AA, how the section is to be interpreted and how to apply the definition. In deciding whether a relationship between two people meets the definition of a de facto relationship, the court is not exercising a discretionary power, but is required to consider a multitude of circumstances in order to make a factual determination. In Ricci v Jones,265 the Full Court approved the following statement made by Murphy J in Jonah v White:266 In my view, the making of a declaration of the type contemplated by s 90RD of the Act does not involve the exercise of a judicial discretion. The question of whether a de facto relationship exists is a determination of fact (albeit based on findings in relation to a non-exclusive number of statutory considerations) which founds the

jurisdiction to make orders of the type contemplated by that part of the Act. The ultimate question is in the nature of a jurisdictional fact.267

The essential question is whether the parties’ relationship was a de facto relationship as defined by the legislation. That question must be considered on a case-by-case basis. In proceedings under Pt VIIIAB, if that question is decided in the affirmative, the court has jurisdiction to determine an application for alteration of property interests and maintenance between the parties to the proceedings. 5.99 A party asserting that the court has jurisdiction must prove the existence of a de facto relationship as defined by the legislation and any facts that go to the jurisdiction of the court.268 While the onus is on the applicant to prove on the balance of probabilities that a de facto relationship existed, s 4AA(4) provides that the court may attach whatever weight it considers appropriate to the matters it determines are relevant to the inquiry. Accordingly, in Taisha v Peng,269 Cronin J held that although the Evidence Act 1995 (Cth) applies (see ss 4(1) and 140 of that Act, where the latter section requires the court to apply the balance of probabilities [page 281] standard of proof), for the purpose of satisfying of s 4AA(1) ‘the weighting and the balancing task is much less formal than in other civil proceedings’.270 A perusal of the cases in which the existence of a de facto relationship or its existence on a particular date is denied, reveals the highly personal and intimate nature of much of the evidence that will be presented by the parties and scrutinised by the court, including letters, emails, text messages and affidavit evidence. In this way, the details of the parties’ private lives are laid bare, much

as they were in the days before no-fault divorce. Making this observation, Behrens justifiably concludes: Unless we are prepared for the adjustive powers in the FLA to hinge on marriage or relationship registration, there is probably no alternative.271

The credibility of the evidence presented by the parties will be important to the court’s factual determination. The court may need to decide what weight to attach to the evidence presented by the parties and decide between conflicting accounts of the facts based on the credibility of the parties and their witnesses. A court will not necessarily make adverse findings of credit in relation to either of the parties or their witnesses, and may accept that each of the parties may have presented their evidence accurately from their perspective.272 On other occasions when the evidence is in conflict, a court will indicate the extent to which they prefer the evidence of one party over the other and may even find one party to have been lying.273

The key concepts — ‘a couple living together on a genuine domestic basis’ 5.100 The FLA definition in s 4AA(1) requires the court to determine whether two people ‘have a relationship as a couple living together on a genuine domestic basis’. The courts have been applying similar, but not identical, provisions in New South Wales and Queensland for some time. In Baker v Landon,274 Riethmuller FM set out the legislative history of s 4AA and the requirements that need to be satisfied in order to determine the existence of a de facto relationship. He referred to a number of important differences in the wording of s 4AA: Although the section is said to be modelled on the provisions of the New South Wales Property (Relationships) Act, there are differences. Section 4 of the NSW Act refers to adults who ‘live together as a couple’, whereas the Family Law Act provision refers to ‘a relationship as a couple living together on a genuine domestic basis’. In the list of factors to be taken into account in NSW the provision includes s 4(2)(h), ‘the performance of household duties’.

[page 282] Provisions to the effect of s 4AA(5) of the Family Law Act are absent from s 4 of the Property (Relationships) Act. Most significantly, the context of the two provisions is very different.275

Nonetheless, decisions based on the legislative definitions in Queensland and New South Wales have been considered to be instructive.276 What does it mean then to be in ‘a relationship as a couple living together on a genuine domestic basis’? 5.101 Two leading cases in which the courts have construed the definition in s 4AA(1) are Moby v Schulter277 and Jonah v White.278 According to Mushin J in Moby v Schulter, the concept of ‘genuine domestic basis’ must be seen not as ‘a term of art but rather, it must be given its ordinary meaning’.279 Mushin J considered there to be two specific elements of the definition that require individual attention: the concept of a ‘couple’ and the concept of ‘living together’. The phrase ‘living together’ is not to be taken in isolation and read to require that de facto couples always live together.280 However, once the parties to the proceedings are found to be a couple who have lived together, the issue becomes one of whether that was on a genuine domestic basis.281 Notably, a ‘mutual commitment to a shared life’ is one of the various circumstances to which the court is to have regard, but it is not identified as an essential characteristic of a de facto relationship.282 According to Mushin J in Moby v Schulter, the concept of ‘genuine domestic basis’ includes the diversity of the relationships that can fall within that definition.283 That diversity is reflected at the formation stage, in the phases that a de facto relationship can pass through and through the potential for parties to suspend or end and recommence their relationship with none of the formalities and legal certainties associated with marriage. For this reason, and in light of a number of other significant differences between marriage and a de facto relationship, Mushin J doubted

the appropriateness of drawing parallels between them. The differences that his Honour points out can be summarised as follows. First, unlike marriage, there are no formalities to be satisfied to enter into a de facto relationship and no certificate that proves that the relationship has commenced. Second, a marriage [page 283] can only be between a man and a woman. In contrast, the FLA definition includes same-sex de facto relationships. Third, it is a criminal offence for a person to be a party to two marriages simultaneously. The FLA enables a person to be in two de facto relationships or one or more de facto relationships and a marriage simultaneously. Fourth, while the legislation includes ‘the degree of mutual commitment to a shared life’ as one of the relevant circumstances, sometimes referred to in the context of marriage as consortium vitae, there is no requirement that there be such a commitment in order for a de facto relationship to exist. In Jonah v White, Murphy J continued the inquiry into the concept of being ‘a couple’. In that case the applicant, a woman, sought a declaration pursuant to s 90RD that a de facto relationship existed with the respondent. The parties had been in a relationship for 17 years. During that time the respondent, a man, lived with his wife and children in the matrimonial home. The applicant lived by herself in her own residence. The parties were together regularly for periods of time during which they enjoyed a loving, sexual relationship. The court accepted that there were some pointers towards the existence of a de facto relationship. The relationship was longstanding, and the parties maintained a consistent sexual relationship — exclusive of other partners in the applicant’s case and for the most part in the respondent’s case (although the respondent maintained a sexual relationship with his wife and had a few ‘one-night stands’). The respondent had also provided financial support to the applicant

for a number of years and made financial contributions to her home. On the other hand, there were a number of indicia that pointed to the opposite conclusion and led Murphy J to decide that the evidence as a whole revealed the parties to be two people who each sought to, and did in fact, maintain separate lives. Factors significant to this conclusion included the absence of joint finances or property, the ‘clandestine’ nature of the relationship, the fact that they did not socialise as a couple, and the paucity of evidence as to any public aspects to their relationship. The absence of evidence of what is described by Murphy J as ‘coupledom’ or ‘merger’ in this case precluded a finding that the parties were a couple living together on a genuine domestic basis, and the application was dismissed. In relation to the concept of being a ‘couple’, his Honour stated: In my opinion, the key to that definition is the manifestation of a relationship where ‘the parties have so merged their lives that they were, for all practical purposes, “living together” as a couple on a genuine domestic basis’. It is the manifestation of ‘coupledom’, which involves the merger of two lives as just described, that is the core of a de facto relationship as defined and to which each of the statutory factors (and others that might apply to a particular relationship) are directed. … It seems to me to be clearly established by authority that the fact that, for example, the parties live in the same residence, for only a small part of each week does not exclude the possibility that they are ‘living together as a couple on a genuine domestic basis’ or that the maintenance of separate residences is

[page 284] necessarily inconsistent with parties having a de facto relationship. So much is, in my view, clear from the statutory recognition that parties to a relationship can be married but also be in a de facto relationship. The issue, as it seems to me, is the nature of the union rather than how it manifests itself in quantities of joint time. It is the nature of the union — the merger of two individual lives into life as a couple — that lies at the heart of the statutory considerations and the non-exhaustive nature of them and, in turn, a finding that there is a ‘de facto relationship’.284

Other judicial elaborations have followed. For example in Zau v Uong,285 Cronin J stated there must be ‘a degree of interdependence between the parties of an emotional, financial or physical nature’. In Crowley v Pappas,286 Tree J said ‘the gist of the inquiry is the degree to which parties have merged their lives into one’. The Full Court has warned, however, against straying away from the wording of the Act. On appeal in Jonah v White,287 the Full Court (May, Strickland and Ainslie-Wallace JJ) agreed with Murphy J’s conclusion that the definition in s 4AA(1) may be fulfilled where parties have lived together for limited periods. They make clear that this will only be the case, however, where other indicia or the circumstances of the matter enable a finding that they were ‘living together on a genuine domestic basis.’ This statutory definition is ‘the “touchstone” for the determination of whether a de facto relationship exists’.288 The Full Court has reiterated on several occasions that comments made in the course of discussing facts — such as those by Murphy J in Jonah v White289 about whether the parties had ‘so merged their lives that they were, for all practical purposes, “living together” as a couple’ — are ‘not to be elevated to the status of the provisions of the statute or substituted for the statutory test’.290 The difficulty remains that the words in the provision themselves do not have a clear meaning. This is even more so if no equivalence is to be drawn with marriage. 5.102 The ultimate decision as to whether there is a de facto relationship at any given time is a decision for the court, and not the parties, nor their witnesses; accordingly, the perception of parties as to the nature of the relationship, while relevant, cannot be determinative.291 The courts recognise that the two parties [page 285]

to a relationship often perceive the same thing, including their relationship, in entirely different ways. As a result, the parties may take an entirely different view of the circumstances. Notwithstanding that this can lead to considerable uncertainty (and conflict) over the legal nature of their relationship, the existence of a de facto relationship is a question of fact, not perception. The fact-based nature of the inquiry as to whether the FLA definition of ‘de facto relationship’ is satisfied, and the application of the statutory definition to the wide variety of couple relationships that exist in Australian society, make it difficult to predict the outcome in some cases, adding uncertainty about the application of the law. In turn this poses challenges for lawyers advising their clients. As Conlan remarks: The task is further complicated by issues such as the stage of life and culture of the parties as well as the context of the relationships and how these broader matters impact on the application of s 90SM(3) as to whether it is just and equitable to make a property order in a particular set of circumstances.292

5.103 As we have seen at 5.93, the definition in s 4AA(1) is also relevant to s 60H of the FLA, which determines the parentage of a child born as a result of an assisted conception procedure. In Keaton v Aldridge,293 the court had to determine whether two women were in a de facto relationship for the purposes of s 60H(b). In applying the definition in s 4AA, Pascoe CFM considered the determination of the point at which relationships cross an ‘invisible line’ to be perhaps the most difficult task for the court. Without the solemnities and formalities accompanying the formation of a married relationship, same-sex relationships, according to the Chief Federal Magistrate: … are fluid in the sense that it is difficult for them to discern what, if any, circumstances will carry them across an invisible line to be a relationship recognised by law.294

This fluidity, it is submitted, is not a feature of relationships that is confined to same-sex relationships. In addition to the difficulty of ascertaining what circumstances

will carry a relationship ‘across the line’, it can also be difficult to identify a precise moment that it has crossed that line because de facto relationships develop over time. In Keaton v Aldridge, Pascoe CFM concluded that the parties were not in a de [page 286] facto relationship at the time the respondent underwent an assisted conception procedure by working through the indicia in s 4AA(2) and making findings of fact relating to those indicia: see the discussion at 5.107–5.108. Baker v Landon295 was another case in which an application was made to the court for a declaration as to the paternity of a child conceived as a result of assisted conception procedures. The male applicant in this case claimed to be entitled to a declaration that he was a parent of the child pursuant to s 60H(b) on the basis that he was in a de facto relationship with the mother of the child at the relevant time. After considering each of the factors in s 4AA(2) and taking the circumstances of the case as a whole, Riethmuller FM concluded that the applicant was a de facto partner of the respondent at the relevant time: see the discussion at 5.107–5.108.

Multiple relationships 5.104 As observed above, a person can be living as a couple in a genuine domestic relationship with more than one person at a time. This is evident from s 4AA(5)(b), which states: A de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.

This provision plainly allows for a de facto relationship to overlap with a marriage; for example, where the marriage has broken down, but the parties to the marriage have not divorced. However, the wording of s 4AA does not confine the definition to

this circumstance and it is possible therefore, provided the s 4AA definition is met, for a person to be in more than one de facto relationship at a time or while living in a marriage that has not broken down.296 In this situation it may be difficult, but it will not be impossible, to show that a person has been living as a couple in a genuine domestic relationship with more than one person at the same time.297 The difficulties that may arise in proving that a de facto relationship existed between two people when one (or both) of the parties was in an intact marriage (or another de facto relationship) are illustrated by Jonah v White,298 discussed at 5.101. The inherent tension in finding that multiple ‘marriage-like’ relationships coexist, given that marriage is defined as a monogamous relationship, has not [page 287] passed unnoticed by commentators299 or the courts. In Truman v Clifton,300 a case in which the definition of ‘de facto relationship’ in s 13A of the Interpretation Act 1984 (WA) applied, Thackray CJ had to decide whether a ‘marriage-like’ relationship existed between the