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Nicholson, CJ Alastair; Harrison, Margaret --- "Family Law and the Family Court of Australia: Experiences of the First 25 Years" [2000] MelbULawRw 30; (2000) 24(3) Melbourne University Law Review 756


Family Law and the Family Court of Australia: Experiences of the First 25 Years

THE HON CHIEF JUSTICE ALASTAIR NICHOLSON AO RFD [*] AND MARGARET HARRISON[†]

[This article traces the development of the ‘new’ family law and the establishment of the Family Court of Australia with the passage of the Family Law Act in 1975. The legislation, which came into effect in January 1976, introduced no-fault divorce and espoused a holistic approach to dispute resolution, with the setting up of a specialist family court complete with court-attached conciliation counselling. The article also reflects on the history of family law in this country, the various influences on its development and its constitutional origins, which produce a bifurcation of legislative responsibility between the States/Territories and the Commonwealth.

The Family Law Act has been substantially amended over the years, frequently as a result of recommendations made in the reports of several Parliamentary and other inquiries, and also following challenges to the constitutional validity of various provisions. These amendments have in turn affected the Family Court’s jurisdiction and the circumstances in which it is exercised and delegated by the judges.

The Family Court faces a number of challenges, in 2001 and beyond. These include the management of increasing numbers of self-represented litigants and matters involving allegations of child abuse, and reducing times of defended matters which go to a final hearing. The nature of the Court’s business ensures that its jurisdiction, workload and method of resolving disputes are constantly the subject of public scrutiny and debate.]

INTRODUCTION

The Family Law Act 1975 (Cth) (‘FLA’) came into operation on 5 January 1976, repealing its predecessor, the Matrimonial Causes Act 1959 (Cth) (‘MCA’).[1] The FLA established the Family Court of Australia and provided for the creation of State family courts.[2] The impetus for the establishment of a separate court to deal with what were then described as ‘matrimonial causes’ came from the Senate Standing Committee on Constitutional and Legal Affairs. In its report on the clauses of the Family Law Bill 1974 (Cth), the Committee emphasised the need for a federal court of record which could deal exclusively with family law matters.[3] This would include assuming the full jurisdiction then exercised by the courts of the Territories and by the State Supreme Courts, as well as the maintenance, custody and family property jurisdictions previously exercised in a variety of State courts.[4]

The passage of the MCA in 1959 had signified the first comprehensive exercise by the Commonwealth of its powers under s 51(xxi) and (xxii) of the Australian Constitution (‘Constitution’), namely to legislate in the area of ‘marriage; divorce and matrimonial causes; and in relation thereto, parental rights and the custody and guardianship of infants’.

This article seeks to examine the recent history of family law in Australia, both in terms of the legislative provisions as they were enacted and amended, and through the jurisprudence flowing from the Family Court. It also considers how the face of the Family Court changed as its jurisdiction expanded, its workload increased and controversies surrounding its jurisdiction and operation persisted.

II FEATURES OF THE FAMILY LAW ACT 1975 (CTH)

Section 43 of the FLA requires the Family Court and other courts exercising jurisdiction under it to have regard to:

(a) 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;
(b) 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;
(c) the need to protect the rights of children and to promote their welfare; and
(d) the means available for assisting parties to a marriage to consider reconciliation or the improvement of their relationship to each other and to their children.[5]

The best known characteristic of the FLA is its introduction of no-fault divorce. Significant as this is, the FLA does far more. It separates principal relief from ancillary relief,[6] thus allowing a divorce to be granted independently of the institution of proceedings (for example, the disposition of property and children).[7] In terms of substantive law, the FLA recognises that both parents have rights and responsibilities over their children after separation, unless a court orders otherwise;[8] allows a court to make an order for the payment of spousal maintenance where the applicant exhibits need and the respondent has the capacity to pay;[9] and provides a statutory basis for the distribution of property following marriage breakdown, taking into account several forms of direct and indirect contributions and other specified factors where relevant.[10] The FLA also contains a provision whereby children can be represented separately and independently of their parents,[11] and removes spousal immunities in contract and tort.[12] Moreover, the FLA abolishes the old ecclesiastical forms of matrimonial relief such as the ‘decree of restitution of conjugal rights, jactitation of marriage and of judicial separation’,[13] as well as proceedings for nullity on the basis of a voidable marriage[14] and a number of archaic actions, such as damages for adultery, enticement and criminal conversation.[15]

Dickey explains that the FLA, unlike its predecessor, is not primarily about divorce. He identifies its three main features (in addition to the establishment of the Court) as: (1) setting out the principal rights, duties, powers and liabilities between spouses and between parents and their children; (2) providing for the enforcement of those rights, duties, powers and liabilities or the alteration of property rights between spouses; and (3) providing the requirements for dissolution of marriage.[16]

The restrictions imposed by s 51(xxi) and (xxii) of the Constitution initially limited the original jurisdiction of the Family Court in children’s matters to children of a marriage. As this article explains, this was overcome in the late 1980s by the Commonwealth’s acceptance of a referral of powers over ex-nuptial children by the States.

III THE CONTEXT FOR CHANGES TO FAMILY LAW

The changing nature of family law broadly reflects the patterns of social change experienced in Australia over the last century. Significantly, the somewhat confused legal regulation of family-related disputes reflects the complex nature of family life itself. Increased secularisation, choice (particularly for women) and recognition of family violence and its consequences are illustrated respectively in the abandonment of various ecclesiastical remedies, in the propensity of women, more than men, to initiate divorce, and in the growing emphasis on family violence in case law and statutes. Arguably, family law is also as heavily influenced by constitutional law and political decisions as it is by the case law which interprets it. Therefore, what amounts to ‘family law’ for particular purposes is dependent on our century-old Constitution, rather than on any popular understanding or acceptance of the term.

The nature of family law sets it apart from other areas of law. It is a critically important field, and the one which most directly impacts on what the FLA describes as ‘the natural and fundamental group unit of society’[17] — the family — and especially on children. In contrast with most civil litigation, there is frequently a significant ongoing relationship between the parties to family law proceedings after the litigation has concluded, and there is considerable potential for further or extended litigation. In many cases, the parties will be required to deal with each other on a regular basis (in particular if they have children). This means that the process and outcome of any litigation must permit those parties to retain a reasonable rapport.[18]

One unique aspect of family law litigation is the way in which proceedings are funded. Costs are not tax-deductible and are entirely met from either public funds, through legal aid, or (more often) from the private resources of the parties.[19] In financial proceedings,[20] so much of the parties’ resources may be consumed in costs that no adequate or proper outcome is possible.

Family law is also an area of law where people who have no other significant contact with the legal system may become embroiled in a legal dispute and possibly litigation. At the time of the FLA’s gestation, the Attorney-General, Lionel Murphy, argued for a more compassionate, dignified and less litigious climate for the resolution of family disputes than had prevailed under the MCA.[21] The establishment of the Family Court has been described as

an attempt to create ... a new kind of legal institution. It was a recognition that matrimonial disputes and their settlement required a different kind of approach: one which recognised the relevance of a range of services besides those customarily available to litigants in law cases. This involves attention to the special needs of children and to the possibilities of conciliation in helping those involved in marital breakdown to reach agreements as to how their affairs should be ordered in the aftermath of divorce.[22]

The creation of a specialist separate superior court dealing exclusively with family law was a bold experiment and is still seen in that light in comparison with overseas jurisdictions.[23] Its judges are, as the FLA requires, appointed for their suitability to deal with matters of family law ‘by reason of training, experience and personality’.[24] What distinguishes the Family Court of Australia from courts in many overseas jurisdictions is its dual role in counselling and mediation (known collectively under the FLA as ‘primary dispute resolution methods’).[25]

The relative paucity still of specialist family courts around the world[26] prompts queries about their strengths and weaknesses and the will of governments for their establishment. There are obvious arguments for and against such courts. It is undoubtedly bewildering, costly and inefficient to deliver fragmented services through a plethora of courts, tribunals and social welfare agencies. Nevertheless, Australia has recently added another, the Federal Magistrates Service, which exercises jurisdiction largely concurrent with that of the Family Court.[27] It is also apparent, as occurred before the establishment of the Family Court, that in a generalist jurisdiction many judges and magistrates do not like family law work and will either hear these matters last or avoid them.[28] A divisional structure is a slight improvement, but judges working in the family law area tend to be transferred into other areas, or a rotation system is employed which has the effect of removing the best family law judicial officers after they have attained competence in the area.[29] Because some senior judges and magistrates in a generalist court regard family law as less important than other areas of their jurisdiction, family law tends to suffer when there are budget cuts and workload increases. Moreover, experience in Australia and overseas suggests that where a family court is a division of a generalist court, or where family law cases are simply assigned to judges or magistrates in a generalist court, the quality of performance suffers greatly.[30]

The principal argument that can be advanced against a specialist family court is that because of the nature of family law, the court is never a popular institution. In Australia disaffected persons constantly attack the system on the basis of gender bias, arguing that either mothers or fathers gain an unfair advantage in parenting disputes, because judges have particular preferences which the discretionary nature of the legislation accommodates.[31] Other criticisms are that the Family Court shows no understanding of the needs of children and their parents, and that the non-financial contributions of a spouse (usually, but not necessarily, a wife) are undervalued, thus perpetuating a systemic bias in the distribution of matrimonial property.[32] Because nearly all of the Family Court’s decisions are discretionary, it is not hard to produce ‘evidence’ (which is difficult to rebut) of alleged inconsistencies in approach. Although it is the legislation which creates the discretion, and not the Court, it is easy to criticise the Court in this regard. Specialist courts are placed in a more difficult position than generalist courts, as they are isolated from the so-called ‘legal mainstream’ and are thus not defended with the same vigour. When public attacks arise, there is a right and a duty for judges — and particularly a Chief Justice — to defend their court.[33]

IV THE DEVELOPMENT OF DIVORCE LAW

A Some Historical Aspects

Prior to Federation the laws of marriage and divorce were inherited from English law and, as such, were largely based on ecclesiastical principles, the remnants of which were not removed in Australia until the passage of the FLA. Until the mid-19th century, when several Married Women’s Property Acts were passed in England,[34] a woman, upon marriage, forfeited her financial independence. She also lost the ability that she may have possessed as a single woman to deal with any property, as any such right was subsumed into her husband’s property as of right. The combined effect of the Married Women’s Property Acts was to permit wives to own and manage property independently of their husbands.[35] These Acts, together with the concept of secular, fault-based divorce (introduced in England in 1857 by the Matrimonial Causes Act 1857 (UK) 20 & 21 Vict, c 85) found their way into the laws of the Colonies and then those of the States. So, too, (but not for quite as long) did the double standard which required a wife to prove adultery plus an additional matrimonial offence against her husband in order to obtain a divorce, whilst adultery simpliciter was sufficient to found a divorce from an errant wife.[36] Divorce was uncommon in Australia and other industrialised countries until the mid-1970s, a fact which was probably caused by a number of societal factors and, to a lesser extent, by the complexity of the law itself. As few people were affected by divorce, reform of divorce law was not high on the political agenda, a situation which was to change in the years leading up to the passage of the FLA.

At the turn of the 20th century the proponents of Federalism demonstrated their enthusiasm for various aspects of the Constitution of the United States of America. However, they were particularly critical of that document’s failure to grant divorce powers to the Federal government,[37] a failure which has produced the multitude of different State laws seen in the United States today. Fortunately, in Australia the efforts of the ‘Founding Fathers’ to ensure Commonwealth involvement in the areas of marriage and divorce were successful.[38] However, having been granted these powers, the Commonwealth government appeared loathe to exercise them and (apart from some post-First and Second World War measures to protect deserted wives) did not enter the field until 1959, when the MCA was passed in relation to divorce, followed in 1961 by the Marriage Act 1961 (Cth).

In the intervening period the Australian colonies and States had enacted their own divorce legislation,[39] based to varying degrees on the English Matrimonial Causes Act 1857 (UK) 20 & 21 Vict, c 85. By today’s standards, those Colonial and State Acts were restrictive, censorious and deeply imbued with ecclesiastical practices. However, as the Colonies passed their own legislation (and some amendments) between 1860 and 1873, they became somewhat more liberal than their predecessors, with Western Australia even providing a no-fault ground of separation.[40]

B The Matrimonial Causes Act 1959 (Cth)

The MCA came into operation in early February 1961. Known as the ‘Barwick Act’ (after the Attorney-General), it unified the law of divorce (described as principal relief) and associated issues (ancillary relief) across Australia and provided a list of 14 predominantly fault-based grounds on which divorce might be granted.[41] Moreover, it gave the presiding judge considerable discretion as to whether a divorce would be granted or not, the mere proof of a ground being sufficient.[42] Petitioners (the name in itself is instructive) were required to be ‘blameless’, and any act of adultery which had taken place during the marriage had to be acknowledged in a written statement which was provided by the ‘perpetrator’ in a sealed envelope to the judge who could then exercise his or (very rarely) her discretion to grant or deny the divorce. There were also a number of non-discretionary bars to relief — predominantly condonation, connivance and collusion[43] — the proof of which would result in a refusal to grant a divorce.[44] Adultery was commonly relied on as a ground, and co-respondents were frequently ordered to contribute to the costs of proceedings.

Because of concerns about constitutional validity, orders ancillary to the divorce, such as maintenance and custody, could only be made under the MCA where divorce proceedings were being sought concurrently or had been completed. If this was not the case, applications for ancillary orders were heard and determined in State courts according to State law. Proceedings brought pursuant to the MCA were otherwise heard by State judges in State Supreme Courts exercising federal jurisdiction.

The late 1960s and early 1970s saw the emergence of a more assertive, anti-authoritarian and individualistic approach to social issues.[45] This was accompanied by an increased emphasis on human rights and the questioning of a number of beliefs previously regarded as sacrosanct, one of which was the permanence of marriage. Increasing numbers of complaints were made about the intrusiveness, cost and embarrassment associated with divorce proceedings. Australia had experienced years of stability during the 1950s and 1960s with very high marriage rates, high fertility and low rates of marriage breakdown.[46] However, during the 1960s a number of changes (including the availability of reliable and accessible birth control) provided more choice, particularly for women. Levels of school retention and workforce participation rates among women gradually began to increase, in conjunction with the advent of equal pay and anti-discrimination legislation, for which the women’s movement had fought successfully.[47] A number of previously uncontested ways of behaving and thinking began to be challenged, including the traditional sexual division of labour in and outside the home.

Another object of increasing concern was the recognition that many women and children were the targets of largely inescapable family violence. Women’s refuges (another achievement of the women’s movement) provided safe havens for some, but the law’s approach to divorce made the formal termination of an unsatisfactory marriage an ordeal. The notion that this had to be earned by good conduct and by proving the commission of one or more matrimonial offences by one’s spouse, came to look distinctly antiquated to increasing numbers of men and women.[48] Furthermore, the procedure for divorce was expensive, undignified and time-consuming. People also questioned the appropriateness of formal investigations into the causes of a particular marriage breakdown by an authoritarian judicial figure who rarely sat in the matrimonial division and often had no particular interest in, or appreciation of, family law. It was true, of course, that one way to avoid the horrors of fault-based divorce was to falsify or embellish the facts.

C The Family Law Act 1975 (Cth)

Section 48 of the FLA provides that a marriage may be dissolved[49] on the application of one party who is able to prove that the parties have been separated for at least 12 months, the marriage being considered to have broken down irretrievably. Hence, an unwilling and ‘blameless’ spouse can be unilaterally divorced — a court’s discretion in respect of granting a decree of dissolution is very limited[50] and no remedies are available for ‘good’ or ‘bad’ behaviour.[51]

In the first year of the operation of the FLA, the number of divorce applications increased dramatically — from 28 308 in 1975[52] (the last year of the operation of the MCA) to 66 092 in 1976.[53] This could have been interpreted at the time as either signalling the demise of de jure marriage, or as representing the pent-up demand for the more ‘user-friendly’ dissolution procedures of the FLA. The subsequent decline in applications over successive years indicated that many long-separated couples had been waiting for the introduction of the FLA, rather than separating as a result of its passage. In 1998 approximately 51 370 divorces were granted.[54]

V ISSUES FACING THE FAMILY COURT

A Jurisdictional Issues

It needs to be recognised that the Family Court cannot determine certain disputes which are, to all intents and purposes, related to family law. For example, while s 75 of the Constitution provides the Commonwealth with power to legislate to confer jurisdiction on federal courts to resolve ‘public law disputes’,[55] the Family Court does not have jurisdiction to hear these matters (including child protection, juvenile justice and adoption issues). Also beyond its jurisdiction is the determination of financial disputes involving unmarried couples and (until the referral of powers) their children. The prevailing mores of a century ago would have undoubtedly prevented either any official recognition of what would then have been considered ‘aberrant’ family forms (such as those based on de facto unions) or state intervention in families to deal with violent behaviour involving children. Furthermore, notions of family autonomy and non-interference would have restrained anyone unwise enough to suggest that the homes of ‘respectable’ citizens should in any way be subject to outside supervision and control. The emphasis in 1901 was on the recognition of marriage as a status (both domestically and internationally) and its effectiveness in transferring rights over property and children — always a major motivation for de jure marriages amongst those sufficiently fortunate to have assets to devolve.

As a consequence of this bifurcation of responsibilities between the Commonwealth and the States and Territories, attempting to explain the Australian family law ‘system’ to those operating outside it inevitably produces a considerable amount of bewilderment and incredulity. It is hard to find a rationale for the division of these responsibilities, possibly because the issue was only briefly considered when drafting the Constitution. The commentators of the day, Quick and Garran, merely note that ‘[i]t was thought ... that, except incidentally to matrimonial suits, the control of children was not a federal matter’.[56]

In any event, those matters not specifically referred to by the Constitution as being within the legislative power of the Commonwealth are the responsibility of the States. To complicate things further, the situation is different in relation to the Territories, as s 122 of the Constitution gives the Commonwealth Parliament full legislative powers where the Territories are concerned. All States and Territories have separate (and far from uniform) child welfare, adoption and juvenile justice laws,[57] and many now have laws which govern the rights of de facto and same-sex couples involved in financial disputes following relationship breakdown.[58] Where there are inconsistencies between valid State and Commonwealth legislation, s 109 of the Constitution requires the latter to prevail.

B Constitutional Challenges

Almost immediately, and for more than a decade after the passage of the FLA, a number of High Court challenges were made to the validity of various provisions of the FLA, alleging that they were outside the power of the Commonwealth because they were insufficiently connected to either the marriage or matrimonial causes provisions of the Constitution. Initial concerns related to the rights of third parties in relation to matrimonial property[59] and children’s matters,[60] and the validity of property proceedings in the absence of dissolution proceedings.[61]

The most recent successful constitutional challenge has resulted in the loss of the benefits to family law achieved through the ‘cross-vesting’ scheme. Between 1987 and 1993 the Commonwealth, the States and the Territories enacted complementary legislation which cross-vested the civil jurisdiction of superior courts so that, where necessary or appropriate, each could transfer proceedings or exercise the jurisdiction of another.[62] This attempt to overcome limitations on the hearing of matters whose subject matter was interrelated, but still straddled both State and Federal jurisdictions, did much to conserve the costs of litigation by bringing connected proceedings into one curial forum. The major consequence of this in the area of family law was that Family and State courts were granted the ability to hear disputes between de facto couples concerning both children and property concurrently.[63]

Pursuant to ss 4(2) and 9(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), parties could also seek common law damages in the Family Court for civil assault, by attaching their action to a property claim under s 79 of the FLA.[64] This led to a relatively small, but important group of cases in which damages claims involving both children and property matters were addressed simultaneously.[65]

Regrettably, the cross-vesting scheme was found to be unconstitutional by the High Court in Re Wakim; Ex parte McNally.[66] This has had little impact on the Family Court’s workload, as the cross-vested matters were insignificant in number. However, the demise of cross-vesting has meant that for those parties for whom cross-vesting was available, part of their dispute now has to be determined in a State court and the remainder in the Family Court. This is undoubtedly a costly and time-consuming process.

C Parliamentary Scrutiny and Amendments

Since its passage the FLA has come under continuous external scrutiny by Parliament and various other bodies. As early as 1978 a Parliamentary Joint Select Committee was asked to review the FLA and, in particular, to investigate ‘the ground of divorce and whether there should be other grounds’.[67] The Committee’s report was delivered in 1980 and contained 70 recommendations, a number of which were incorporated into the 1983 amendments to the FLA.[68] The report did not recommend a reconsideration of no-fault divorce, but several Committee members expressed disquiet or opposition to that particular ground and queried particularly whether 12 months’ separation was long enough to prove that a marriage had in fact irretrievably broken down, and whether there should be additional grounds for divorce.[69]

In 1991 the second Joint Select Committee began its investigations. Its report, The Family Law Act 1975 — Aspects of Its Operation and Interpretation, was published in November 1992. This Committee’s terms of reference were wide- ranging and dealt predominantly with ancillary matters involving children and property cases. A subsequent term of reference on the Court’s funding and administration was added in September 1992 and was the subject of a report tabled in November 1995.[70]

The Court carried out its own major review of its operations in 1989, before becoming administratively independent of the Attorney-General’s Department.[71] In addition, the Auditor-General reported to the House of Representatives on the Administration of the Family Court in November 1997[72] and the Australian Law Reform Commission completed its report, Managing Justice: A Review of the Federal Civil Justice System, in 2000.[73] The Family Law Council[74] and the Australian Institute of Family Studies[75] have also conducted various reviews of aspects of the FLA’s operation and the role of the Court over the past two decades.[76]

The FLA was amended significantly in 1983, 1988 and 1995,[77] and less substantially on a number of other occasions. At the outset, Lionel Murphy envisaged the Court as an informal, private and unthreatening atmosphere for the resolution of family disputes. This led to the design of small court rooms, to judges and counsel remaining unwigged and to the proceedings being closed to the public.[78] There was considerable controversy about these aspects of the Court’s operations. In particular, the in camera nature of the proceedings caused the Family Court to be criticised for being publicly unaccountable, as it was immune from external scrutiny.[79] As a result of the 1983 amendments, proceedings were required to be held in open court, and tight restrictions on the reporting of identifying information about parties and their children were introduced.[80]

Since 1983 it has been possible for undefended divorces involving childless couples to be granted, and for joint applications for divorce to be filed.[81] Changes to the definitions of ‘custody’ and ‘guardianship’ were also introduced in 1983 and a list of factors, which the court must consider when determining a child’s best interests in parenting matters, was inserted.[82] The Family Court’s jurisdiction was also extended, through an amendment which enabled orders to be made for the welfare of a child of the marriage.[83] As the High Court majority noted in Secretary, Department of Health and Community Services v JWB and SMB[84] this confers a jurisdiction on the Court similar to the parens patriae jurisdiction, albeit without the power to make a child a ward of court.[85] In Marion’s Case it was held that the Court was allowed under that power to authorise the sterilisation of a minor with intellectual disabilities.[86]

In the late 1980s the Family Court’s jurisdiction over children was considerably increased when all States (except Western Australia) referred their powers over ex-nuptial children to the Commonwealth.[87] Previously, the lack of a Commonwealth head of power[88] had prohibited parenting order disputes between unmarried parents from being dealt with by courts other than State courts, which lacked counselling and other specialist services. The references of power were effected by the Family Court of Australia (Additional Jurisdiction and Exercise of Powers) Act 1988 (Cth), and now no legal distinction is made between nuptial and ex-nuptial children in this regard, provided that paternity is proven.

D Family Court Structure

Over the years the Family Court has sought to manage its ever-increasing workload in a variety of ways. For example, the Court’s jurisdiction is exercised through a judicial structure comprising judges, judicial registrars, senior registrars and deputy registrars, all but the judges exercising delegated jurisdiction.[89] This is necessary because of the diversity of the matters which come before it and also because of the constitutional constraints. The judges and other decision-makers must deal with matters ranging from allegations of child sexual abuse, international abductions and disputes involving complex trusts and overseas assets, to arguments about a child’s surname, whether a child was over-held on a contact visit, or who should receive a share of a small bank account or ‘house and garden’ items. Registrars also play an important role by using their delegated powers to ensure adherence to the guidelines which regulate case management within the Court.

The Court has jurisdiction to hear (inter alia) applications to depart from the child support formula under the Child Support (Assessment) Act 1989 (Cth)[90] or to authorise the marriage of a minor under the Marriage Act 1961 (Cth).[91] It also, as mentioned earlier, may make orders relating to the welfare of children and has jurisdiction to determine applications made under domestic legislation implementing certain treaties.[92] State courts also have a parens patriae power, which is arguably superseded by orders of the Family Court by reason of s 109 of the Constitution.

The potential for State welfare laws to become inoperative because they are inconsistent with the FLA is recognised in s 69ZK. The section provides that, with limited exceptions, courts exercising jurisdiction under the FLA cannot make orders relating to a child who is under the care of a person pursuant to a State or Territory child welfare law. This provision highlights the similarities of orders involving children made by Federal and State and Territory courts, the need to prevent perpetual conflicts between the State and federal systems, and the fact that in the face of an inconsistency between valid Commonwealth and State laws, the former will be preserved at the expense of the latter.

In 1988 the Family Court (Additional Jurisdiction and Exercise of Powers) Act 1988 (Cth) invested the Family Court with additional federal jurisdiction in specified areas such as bankruptcy and trade practices, upon these being transferred from the Federal Court.[93] The objective of the change was to implement the recommendation of the report of the Constitutional Commission that the Court be ‘renovated’ by empowering its judges to deal with a wider range of work.[94] Several Family Court judges have commissions as members of the Administrative Appeals Tribunal and the Chief Justice has a commission as a judge of the Federal Court. In reality, the volume of Family Court work precludes judges from dealing with work from any additional jurisdiction. Historically, the Federal Court has referred very few matters to it, and none for many years.

The 1988 legislation also amended the FLA to create the offices of Deputy Chief Justice, Judge Administrator and Judicial Registrar, and established a permanent appellate division of the Court.[95]

In addition, jurisdiction under the FLA is exercised by State and Territory Magistrates’ Courts and now also by the Federal Magistrates Service.[96] For obvious reasons, judges hear those matters which go to a final defended hearing. Interim, procedural and undefended work and matters which involve consent orders are usually delegated to judicial registrars by the judges via the Family Court Rules 1984 (Cth). However, there are constraints on the extent to which judicial power can be legitimately delegated in this way. The High Court in Harris v Caladine held that the delegations made several years earlier were constitutionally valid, but warned that such delegations were valid only when judges maintain power to exercise effective control and supervision over the proceedings.[97]

Again because of constitutional concerns, only judges can make final orders concerning children, whilst judicial registrars can make final property orders, provided that the gross value of the property subject to the order does not exceed $700 000.[98] Where the parties consent, there are no constraints on the jurisdiction.[99] The demarcation of powers between various court officers creates particular difficulties in small registries where there are no judicial registrars, and when the Court is on circuit, with matters listed before registrars frequently having to be adjourned when they become contested or where the applications are found to be more complex than was originally realised.

The other area of difficulty occurs because only judges are appointed pursuant to Chapter III of the Constitution and appeals from decisions of anyone other than a judge or a federal magistrate must be by way of a de novo review, rather than an appeal. This has practical consequences for litigants, as a hearing de novo requires them to begin their proceedings again, this time before a judge, with all the attendant costs and stress which this produces. In contrast, an appeal from a judge’s decision (whilst still expensive and stressful) allows examination of material from the first hearing, with the Court having a discretion to admit additional material and reach different conclusions.

The Court has for some time struggled to keep waiting lists at acceptable levels. The delays have been particularly acute in children’s matters and were exacerbated in 1996 with the entry into force of the amendments to Part VII of the FLA, which produced an increase in applications for parenting orders. The problem was made worse by the shortage of judges, and by the limitations on the delegation of powers to registrars which resulted from the decision in Harris v Caladine.[100] Essentially, these restrictions prevented anyone except judges from hearing interim matters. Since judges therefore had to spend longer amounts of time on these matters, the delays in the arrival of final hearings increased. As the time taken to reach final hearings grew, so did the demand for interim determinations, particularly in children’s cases.

In early 1999 Family Court judges agreed to delegate their powers to determine interim parenting and some other matters to a new category of senior registrars, who commenced duty in May of that year.[101] The registrars then assumed responsibility for interim parenting applications, thus allowing the judges to concentrate almost exclusively on final defended matters. Unfortunately, subsequent severe budget reductions imposed on the Court (largely in advance of workload changes anticipated to be caused by the commencement of the Federal Magistrates Court) have recently forced the Court to reduce the number of senior registrars employed.

The Family Court has, on a number of occasions, pointed out the unacceptable complexities in its structure to various governments and parliamentary inquiries.[102] Specifically, it has sought the appointment of specialist ‘Chapter III’ federal magistrates within the Court itself, and the establishment of something akin to a small claims tribunal to allow the summary disposition of minor disputes.[103] Instead, the Government decided to establish the Federal Magistrates Service as a separate entity under Chapter III, notwithstanding that scarce funds would be diverted from the Family Court into the administrative establishment and other costs of the Federal Magistrates Service.

In the second reading speech of the Federal Magistrates Bill 1999 (Cth) the Attorney-General described the new court as an example of the Government’s commitment to the provision of accessible and affordable options for the resolution of disputes, and pointed out that since Federation the Federal Parliament had never established a lower-level Commonwealth court.[104] The Attorney-General also referred to the Government’s proposal that the federal magistrates develop what he described as a ‘new culture, with an emphasis on user-friendly, streamlined procedures ... especially important for litigants who do not have legal representation’.[105]

Jurisdiction is conferred on the Federal Magistrates Service by the Federal Magistrates Act 1999 (Cth) and the Federal Magistrates (Consequential Amendment) Act 1999 (Cth). In relation to family law, the main jurisdictional areas are:

The magistrates’ powers are different from those of Family Court judges and judicial registrars, from senior and deputy registrars, and also from State magistrates exercising federal jurisdiction.

State and Territory Magistrates’ Courts also exercise a limited concurrent summary jurisdiction by reason of ss 39(6) and 63(2) of the FLA. Their current powers extend to the making of interim orders in children’s matters, and contested parenting orders where the parties consent to the making of those orders. Otherwise, contested matters under Part VII of the FLA (other than child maintenance matters) must be transferred to the Family Court. The property jurisdiction of magistrates’ courts is limited to property with a value of less than $20 000, unless the parties agree to a determination by a magistrate.

By virtue of geography and cost, State and Territory Magistrates’ Courts are frequently the most appropriate venue for minor family law disputes, but (apart from their jurisdictional limitations) they are not able to provide conciliation services in matters involving children or property. Their premises and facilities obviously vary enormously around the country but security concerns, inadequate privacy and the uncomfortable combination of civil and criminal proceedings are also often issues of concern.[107]

There are other issues particular to various geographical areas of Australia. For example, no family law jurisdiction is exercised by magistrates’ courts in the Adelaide metropolitan area. That work is performed by Family Court registrars. In the Sydney Central Business District a specialist local court, the Family Matters Court, deals exclusively with family law issues. A similar arrangement now exists in Queensland with the designation of magistrates to undertake family law work.

E Child Support

The introduction of stage one of the Child Support Scheme in 1988[108] and of the stage two administrative formula for assessment of child support in 1989[109] brought about considerable changes to family law in Australia. Prior to the implementation of the scheme, the amount of child maintenance was determined by a provision of the FLA, which stipulated that parties to a marriage were liable, according to their respective financial resources, to maintain any of their children who were under the age of 18.[110] In fact, research conducted during the 1980s showed that only about 30 per cent of parents no longer living with their children paid any maintenance for them, and that when it was paid, amounts tended to be low, and bore no relationship either to the income of the payer or to the cost of raising children.[111] Moreover, many orders were not complied with, and enforcement proceedings were expensive and often unsuccessful.[112]

In the 1986 decision of Mee and Ferguson[113] the Full Court of the Family Court criticised the legislative framework which allowed child maintenance to be considered as a subordinate, rather than primary, parental responsibility. The Full Court held that in the absence of any clearer legislative direction, the Court should deduct from the liable parent only unavoidable or compulsory expenses, plus necessary living expenses, before considering what his or her capacity to pay child maintenance was.[114] The introduction of the administrative formula in 1989 largely followed this approach, by giving primacy to child support obligations as a debt owing to the Commonwealth and in making taxable income the basis for the assessment of those obligations. Put at its simplest, the formula assesses the amount due from the liable parent according to his or her taxable income and the number of children for whom there is responsibility. Where one child is in the primary care of one parent, 18 per cent of taxable income is payable; 27 per cent is payable where there are two children and 32 per cent where there are three.[115] Modifications of the formula apply where there are (inter alia) other living arrangements for the children.[116]

The most significant change brought about by the introduction of the new scheme from the Court’s perspective was a major reduction in its power to order child support, with the Child Support Agency administering the formula where the Child Support (Assessment) Act 1989 (Cth) applies.[117]

F Maintenance and Alteration of Property Interests

Apart from the provisions relating to child support, Part VIII of the FLA (which deals with property, spousal maintenance and maintenance agreements) remains virtually unchanged since its inception. In general terms, the Family Court has a broad discretion to alter the property rights of the parties, provided the outcome is just and equitable,[118] taking into account the contributions which each spouse has made to the marriage,[119] as well as what are called s 75(2) factors.[120] The Court is also required, in proceedings not involving spousal maintenance, to make such orders as will finally determine the financial relationships between the parties to the marriage and avoid further proceedings between them.[121]

Major issues which the Court has faced — and been criticised for — relate largely to the considerable discretion given to it by the FLA. Particular criticisms include: the insignificant weight allegedly given by judges to non-financial contributions (usually made by a wife), especially in ‘big money cases’;[122] the extent to which the various s 75(2) factors are considered relevant; and the omission of superannuation from the property pool.[123]

Although Part VIII of the FLA provides a broad discretionary system of property adjustment, a line of Full Court decisions has provided a three-step process for determination of these matters: (1) identify and value the property in dispute; (2) consider the contributions of the parties; and (3) consider whether any adjustments are necessary in light of the s 75(2) factors.[124]

Spousal maintenance may also be sought and the FLA sets out the circumstances in which one party has an obligation to support the other.[125] Spousal maintenance, if ordered, is most commonly payable by way of a lump sum or periodic sum,[126] but it is only rarely sought.[127]

The constancy of the current law in relation to financial matters has not been maintained for want of trying, as a number of recommendations for reform of the law have been made on a regular basis over the past two decades. For example, the first Parliamentary Joint Select Committee recommended that a matrimonial property regime be introduced, but that it be preceded by a survey to establish community attitudes to the proposal, a study by the Australian Law Reform Commission of the legal implications of such a scheme and an assessment of the experience of the New Zealand and Canadian schemes.[128] Another recommendation was that the matrimonial home be presumed to be owned by the parties to the marriage in equal shares both during and upon the breakdown of a marriage.[129] In mid-1983 the Attorney-General referred these issues to the Australian Law Reform Commission. Its subsequent report did not recommend substantial changes to the law, but sought to minimise uncertainty by recommending the inclusion of specific guidance on financial proceedings and a starting point of equal sharing in the value of property of the marriage.[130]

The issue of equal sharing was considered by the second Joint Select Committee, which reported in 1992.[131] In a manner reminiscent of the Australian Law Reform Commission recommendations, the report dismissed the suggestion that there should be an irrebuttable presumption of equal sharing, but instead favoured the confinement of judicial discretion to depart from equal sharing in stipulated exceptional circumstances.[132] The issue was raised again in early 1999 in the Attorney-General’s Department’s Discussion Paper, Property and Family Law — Options for Change.[133] This sought submissions on two suggested options for reform. The first option was similar to the current law, but started from a presumption of equal sharing; the second was a community of property regime in which parties would hold assets acquired during the relationship jointly, to be divided equally on marriage breakdown, subject to certain limited exceptions.[134] The response to both options was generally negative and the Attorney-General subsequently indicated that no major changes to Part VIII of the FLA would be pursued by the Government.[135]

G Parenting Disputes

In mid-1996, a raft of important amendments to Part VII of the FLA (Children’s Matters) came into operation. The main changes to the FLA were based on the statement of objects and underlying principles which is contained in s 60B(2). This provides that, except when it is or would be contrary to a child’s best interests:

(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
(c) parents share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children.

Changes were also made to the terminology of court orders. The former powers of guardianship and custody that were vested in the parents of a child were replaced by a single concept of ‘parental responsibility’.[136] A new range of ‘parenting orders’ replaced the previous custody and access orders, namely, orders for ‘residence’, ‘contact’ and ‘specific issues’.[137]

As the amendments go to the substantive law, the effects of court orders are also changed. Parental responsibility for children remains explicitly unaffected by the parents’ separation or the children’s living arrangements. Second, unlike custody orders, a residence order does not vest a person with sole decision- making power for day-to-day matters, nor does it remove any aspect of the non-resident parent’s responsibility for the child: it simply names the person or persons with whom the child will live. In order to give one parent (or a third person) sole day-to-day or long-term parental responsibility for a child, a specific issues order to that effect now needs to be made.[138]

There is a revised list of matters that a court must consider when determining the child’s best interests for the purposes of making a parenting order. The list now includes as relevant matters: the need to maintain an indigenous child’s connection with his or her culture; any family violence ‘involving the child or a member of the child’s family’; and the existence of any family violence orders.[139]

The legislation also contains a number of provisions designed to ensure that children and those caring for them are protected from violence. Judges are now required to ensure that their orders for residence and contact do not expose any person to an ‘unacceptable risk’ of family violence.[140] In addition, a new Division 11 deals with the problem of inconsistent contact and domestic violence orders. It requires the Family Court to refrain from making any contact order that is inconsistent with a family violence order unless it is in the child’s best interests to do so.

The amendments include a range of provisions aimed at encouraging parents to use mechanisms such as mediation and counselling services to resolve disputes about children before resorting to litigation.[141]

Research conducted over a three year period on the effects of the Part VII reforms suggests that a number of, presumably unintended, consequences have emerged.[142] The reforms (inter alia) create a tension between a child’s right to contact and the need to protect children from family violence in circumstances where a non-resident parent against whom an allegation of violence is made makes an application for contact. There is concern that in such circumstances the right to contact is seen as belonging to the parent, rather than the child, and that this takes precedence over family violence issues. Moreover, there is confusion about what ‘shared parental responsibility’ means — many contact parents interpret it as giving them a right to spend equal time with their children. Finally, Family Court statistics show a steady increase in applications for parenting orders and for restraining contravention of these orders since the amendments came into operation.[143] This undermines one of the major objectives of the reforms, namely, the minimisation of disputes between parents.

H Child Protection Issues

Technical discussions about jurisdictional and constitutional issues tend to mask the real effects of Australia’s fragmented family law system from those it is meant to protect. Such effects are particularly evident in relation to children who are the subject of abuse concerns.

As Dessau has highlighted elsewhere,[144] the present system enables a victim of child abuse to be the focus of contemporaneous proceedings in a number of State courts and tribunals, as well as the Family Court. Consequently, the child may be brought into contact with a variety of police, social workers, medical and legal practitioners and other professionals. State courts have different powers and manners of dealing with matters, both at first instance and on appeal, so the physical location of the family will determine the law and procedures applicable. State and Commonwealth statutes employ a different vocabulary. For example, the Commonwealth legislation refers to ‘residence’ and ‘contact’, whilst the State legislation refers to ‘custody’ and ‘access’.

The overlap between jurisdictions can produce unfortunate results. For example, an application may be awaiting hearing in a children’s court at the same time that a parenting order is sought in the Family Court, or vice versa. Frequently, a welfare issue arises in the course of Family Court proceedings, possibly by way of an allegation that a child has been abused during a contact visit. Research has shown that these matters occur so frequently in the Family Court that their management has become a substantial component of the Court’s core business.[145]

The FLA provides for court personnel and parties to notify the relevant State child welfare authority of any reasonable suspicion that a child has been abused or is at risk of abuse.[146] A judge may make a notification or request the intervention of the child welfare authority.[147] However, judges cannot compel such intervention, although some form of investigation is required once a notification is made.[148]

In an attempt to improve outcomes and reduce the delays in children’s matters, particularly those in which children may be at risk, the Court piloted its ‘Magellan’ project in the Melbourne registry in mid-1998.[149] The project involves early intervention and special case management of 150 cases involving serious (usually sexual) abuse of children. These are dealt with by a designated team of judges, registrars and counsellors. Major characteristics include continual liaison with the Victorian Department of Human Services and Victoria Legal Aid. As a result of good co-operation with these organisations, thorough investigations have been carried out early in the process and all the children are legally represented at court.

The project is being evaluated by a research team from Monash University.[150] The initial findings suggest that cases are resolving more frequently and earlier in the process, with fewer hearings. More importantly, the provision of detailed reports from the Department of Human Services allows all those involved to be better informed about the children’s circumstances and, therefore, more able to encourage settlement or to adjudicate defined issues where necessary. Cases which are proving to be incapable of resolution, despite special case management, have often already been litigated in the Victorian Children’s Court and are essentially re-run in the Family Court, sometimes taking several weeks to complete. In the absence of particular case management processes and careful inter-departmental liaison, the Family Court is often not properly informed about the allegations, detail or progress of the State welfare authority investigations and the Children’s Court proceedings. Sometimes, neither the Federal nor the State court is aware of the extent of proceedings in the other court.

A side effect which Magellan cannot prevent is the opportunity for what is known as ‘forum shopping’, with parties seeking to litigate in particular courts for optimum results, or re-litigating residence or contact issues in the Family Court once Children’s Court orders expire. A State welfare authority, dissatisfied with a Family Court outcome, may also apply in the Children’s Court, rather than appeal the Family Court decision. However, it is often impossible to determine which law (and therefore which forum) takes precedence.

Finally, whilst Family Court orders apply across Australia, State Children’s Court orders only operate within the boundaries of the State in which they are made. The States and the Commonwealth have recently agreed to consider mechanisms to increase the portability of care and protection orders, which has already occurred in relation to family violence orders.[151]

In most States and the Territories, the Family Court and the relevant welfare authorities and courts have entered into protocols which assist in co-ordinating the work of all those involved in the area of child protection.[152] These protocols seek to overcome the structural and jurisdictional difficulties described above. They are vital in ensuring co-operation between the different personnel. However, as shown, they cannot always prevent the instances of overlap and duplication which are so deeply embedded in the system.

I Self-Represented Litigants

One of the major challenges facing a number of courts, both in Australia and elsewhere, is the increasing incidence of self-represented litigants appearing before them. Despite there being a lack of baseline data, it is apparent that the incidence of self-represented litigants — particularly in family law — has increased in recent years.[153] New legal aid arrangements, which were foreshadowed in mid-1996, are undoubtedly a major (albeit probably not the sole) cause of this increase.[154]

The Family Court has conducted and participated in several surveys about litigants in person since 1996.[155] The surveys show that the incidence of matters in which at least one party was self-represented is about 35 per cent. This includes defended hearings, duty matters and directions hearings, but excludes appeals, where the figure is currently slightly higher (37 per cent). The research also indicates that judges and registrars have been concerned about the effects of self-representation and see it as adding considerably to the burdens of the Court.

Litigants in person (regardless of the reason for their lack of representation) face obvious additional pressures, as do the other parties in the dispute, their legal representatives and the Court. The potential for delay and a reduction in settlement opportunities are frequently cited as consequences.[156] Concern has been expressed that those acting for themselves must presumably either abandon a cause of action which may be quite legitimate, or must remain unrepresented.[157] In such an equation the welfare of children may well be overlooked. Where aid has been refused, some applicants may express their sense of injustice against their former partner or children. While violence is the most extreme manifestation, the Court also sees heightened obstructionism and unwillingness to comply with orders or other post-separation arrangements.

Before a matter goes to hearing, when opportunities to settle disputes often present themselves, it is understandable that people with a high level of animosity towards each other are unable to negotiate and possibly find a solution, as no objective advice may be available to them. Court registrars and counsellors are finding this to be the case, and matters which solicitors or counsel may be able to resolve are continuing down the path to quite unnecessary litigation, with all the difficulties and distress which accompany that process.[158]

In the area of case preparation the Court’s case management guidelines are frequently not complied with, as most lay persons cannot prepare the necessary written material.[159] Their affidavits are often too long and contain much irrelevant material, frequently of a scandalous nature, while at the same time they omit highly relevant evidence.

Where matters proceed to hearing, legal technicalities can be significant, despite the Court’s best efforts to overcome such difficulties. Even where the disputes are legally straightforward, self-represented people can rarely do justice to the case they wish to present. In addition to the normal difficulties they would experience in other jurisdictions, the nature of family law means that it is almost impossible for the parties to examine or cross-examine their former partners or family members in an objective, effective or meaningful way. Often, questions exacerbate the dispute and further cloud the opportunity to arrive at a satisfactory solution.

Allegations of spousal violence or child abuse present special difficulties and one party (usually, but not necessarily, the woman) may be further intimidated. When the welfare of an unrepresented child is in dispute, and neither party is represented, there is no meaningful cross-examination of witnesses by anyone and the child’s circumstances are extremely difficult to ascertain.

In all of these situations, the judge must tread a very fine line between permitting a self-represented person to adduce and test evidence and protecting witnesses from improper behaviour. In doing so, it is impossible for the judge to become too involved without appearing to be less than objective.

The Family Court recognises that litigants in person should not be seen as a problem requiring accommodation, but rather as the new reality, with court services and procedures addressing them as a permanent, significant and growing user group. It acknowledges that it also has a role to play in co-ordinating the provision of assistance to self-represented litigants. The Court already provides some information by way of videos and pamphlets. It has also recently simplified its procedures; provided information sessions to those who file proceedings other than for divorce; published The Family Court Book;[160] and created and maintained a website with easily accessible information on various aspects of the Court’s operations. A Court Committee is currently examining how information and services can be made uniformly available to self-represented litigants.[161]

VI CONCLUSION

The challenges that family law generally, and the Family Court of Australia in particular, have faced since 1976 will undoubtedly continue to arise, albeit in constantly changing legal and social contexts. The content and direction of family law itself will also undoubtedly evolve as new developments emerge. For example, as this article was being written, the Family Law Amendment Bill 2000 (Cth) was passed and became law on 29 November 2000. The amendments seek to remedy one of the most contentious areas of family law: the enforcement of parenting orders. They aim to do this via a three-stage process, in which the Court informs parents of their obligations under a parenting order and advises them of the services available to assist them, should they encounter any difficulties. If the order is not complied with, parents can be directed by the Court to attend a relationship program designed to resolve parental conflict. Should non-compliance continue, the Court will be able to impose a variety of sanctions. The amendments also permit legal recognition of financial agreements made before or during a marriage which set out how the property will be divided upon marriage breakdown. Further, they introduce a scheme of private arbitration.

Waiting in the wings is also legislation which will allow superannuation entitlements to be divided on marriage breakdown, either by agreement or by order.[162] Currently, a superannuation interest can be taken into account as a financial resource,[163] but cannot be divided. This has led to allegations that superannuation is frequently ignored or undervalued in family law proceedings, despite its being the second most valuable asset after the matrimonial home for most couples.[164] As men typically have regular employment during marriage and women frequently leave the workforce and/or work part time (even if only temporarily) because of child-rearing responsibilities, women were found to be experiencing financial disadvantage as a consequence of superannuation being overlooked or undervalued.[165]

However, the fragmentation of the jurisdiction between Federal, State and Territory courts is likely to continue, as neither constitutional change, nor cross- vesting, are realistic options. In addition, the extent to which the Federal Magistrates Service will assume the workload of the Family Court and interact with it in relation to transfers of matters and appeals remains unknown.

Internally, the Family Court has embarked on a widespread overhaul of the guidelines it uses to manage cases and is also trialling programs to assist litigants in person and other disadvantaged groups. In addition to the Court’s website, technological advances will soon allow electronic filing and more widespread use of video conferencing and listing of cases via the Internet. Trial management is also under consideration, and judicial conciliation is being trialled. Rules are to be rewritten and expressed in plain English. Case conferencing early in the proceedings between the parties and the use of registrar-counsellors — administrative teams — are already showing promising results.

As always, there is much happening in the family law area and the Family Court is constantly striving to improve its methods and procedures. The Court will continue to be criticised, often unfairly, because of the nature of its jurisdiction, but it is, and will continue to be, a world leader in the delivery of family law services in the 21st century.


[*] LLB (Melb); Chief Justice of the Family Court of Australia.

[†] LLB (Melb), LLM (McGill); Senior Legal Adviser to the Hon Chief Justice Alastair Nicholson, Family Court of Australia. The authors would like to thank Professor Regina Graycar and Danny Sandor for their constructive comments on a previous draft of this article.

[1] The FLA s 3(1) repealed the Matrimonial Causes Act 1959 (Cth) (‘MCA’) as well as the Matrimonial Causes Act 1965 (Cth) and the Matrimonial Causes Act 1966 (Cth).

[2] The FLA s 21(1) creates the Family Court of Australia and s 41(1) provides that the Commonwealth Government must take steps to enter into agreements with the State governments to create State family courts. Western Australia refused to enter into such an agreement, opting instead to establish a separate Family Court under the Family Court Act 1919 (WA), now maintained under the Family Court Act 1997 (WA).

[3] Senate Standing Committee on Constitutional and Legal Affairs, Report on the Law and Administration of Divorce and Related Matters and the Clauses of the Family Law Bill 1974, Parl Paper No 133 (1974) 10.

[4] Ibid.

[5] The Family Law Reform Act 1995 (Cth) amended s 43 of the FLA by inserting ‘(ca) the need to ensure safety from family violence’.

[6] ‘Ancillary relief’ includes all secondary matters associated with marriage breakdown such as proceedings for maintenance and property distribution. See FLA s 4 and pt VIII ‘Property, Spousal Maintenance and Maintenance Agreements’.

[7] See FLA pt VI ‘Dissolution and Nullity of Marriage’.

[8] Before the 1995 amendments, the FLA provided that, subject to a court order to the contrary, each parent was a guardian of his or her children and had joint custody with the other parent of those children. ‘Guardianship’ was defined as the powers, rights and duties that were, apart from the FLA, vested by law or custom in the guardian of a child, except the right to have the daily care and control of the child and the right and responsibility to make decisions concerning that daily care and control. A person with ‘custody’ had the right to have daily care and control of the child and to make decisions in relation to that care and control: FLA ss 60A, 61. For discussion of the post-1995 position, see below Part XIII.

[9] FLA ss 72, 74, 75.

[10] FLA s 79.

[11] FLA s 68L.

[12] Prior to the enactment of the FLA, spouses could not sue each other in contract or tort; s 119 of the FLA removes this limitation.

[13] FLA s 8(2).

[14] FLA s 51.

[15] FLA s 120.

[16] Anthony Dickey, Family Law (2nd ed, 1990) 45–6.

[17] FLA s 43(b).

[18] See Future Directions Committee, Future Directions Committee Report (2000) Family Court of Australia <http://www.familycourt.gov.au/court/html/future.html> at 31 December 2000 (copy on file with authors). All websites cited in this article are correct as at 31 December 2000. Copies of all Internet sources are on file with the authors. A range of legal resources and related materials are available from the Family Court of Australia’s website: <http://www.familycourt.gov.au> .

[19] Australian Law Reform Commission, Review of the Federal Civil Justice System, Discussion Paper No 62 (1999) [6.21].

[20] FLA s 4.

[21] Commonwealth, Parliamentary Debates, Senate, 13 December 1973, 2828 (Lionel Murphy, Attorney-General).

[22] Commonwealth, Family Law in Australia: Report of the Joint Select Committee on the Family Law Act (1980) vol 1, 121.

[23] For example, a ‘family court’ took more than half a century to develop in the United States: ibid.

[24] FLA s 22(2)(b).

[25] FLA s 14E.

[26] The United States, the United Kingdom and Japan are among the few jurisdictions which have separate Family Courts.

[27] Angela Filippello, Federal Magistrates Service: Implications for the Family Court (2000) Family Court of Australia <http://www.familycourt.gov.au/papers/html/fms.html> .

[28] Chief Justice Alastair Nicholson, Future Directions in Family Law (2000) Family Court of Australia <http://www.familycourt.gov.au/papers/html/nicholson10.html> .

[29] Ibid.

[30] Ibid.

[31] Ibid.

[32] See, eg, Hilary Charlesworth, ‘Domestic Contributions to Matrimonial Property’ (1989) 3 Australian Journal of Family Law 147, 147; Regina Graycar, ‘Gendered Assumptions in Family Law Decision Making’ (1994) 22 Federal Law Review 278, 283–4.

[33] This was the subject of comment by some members of the High Court in Re Colina; Ex parte Torney (1999) 25 Fam LR 431, 440 (Gleeson CJ and Gummow J), 474 (Callinan J).

[34] Married Women’s Property Act 1870 (UK) 33 & 34 Vict, c 93; Married Women’s Property Act 1882 (UK) 45 & 46 Vict, c 75; Married Women’s Property Act 1893 (UK) 56 & 57 Vict, c 63.

[35] Peter McDonald (ed), Settling Up: Property and Income Distribution on Divorce in Australia (1986) 4. Australia still has a separate property regime. Each spouse retains whatever property she or he owned prior to marriage.

[36] Matrimonial Causes Act 1857 (UK) 20 & 21 Vict, c 85, s 27.

[37] John Quick and Robert Garran, The Annotated Constitution of the Australian Commonwealth (first published 1901, 1976 ed) 610.

[38] See Constitution s 51(xxi), (xxii).

[39] Matrimonial Causes Act 1899 (NSW); Matrimonial Causes Act 1864 (Qld); Matrimonial Causes Act 1929 (SA); Matrimonial Causes Act 1860 (Tas); Marriage Act 1928 (Vic); Matrimonial Causes and Personal Status Code 1948 (WA).

[40] During the parliamentary debates which preceded the passage of the MCA, the inclusion of a no-fault ground of separation into the new federal legislation was condemned by some parliamentarians as providing a ‘Casanova’s Charter’, and one senior politician of the day, A A Calwell, described it as introducing a kind of ‘smelly barnyard morality’: H A Finlay, ‘The Grounds for Divorce: The Australian Experience’ (1986) 6 Oxford Journal of Legal Studies 368, 370–1.

[41] MCA s 28.

[42] MCA s 69.

[43] ‘Condonation’ is the forgiveness of the commission of a matrimonial offence; ‘connivance’ is the behaviour by one spouse designed to cause the other spouse to commit a matrimonial offence; ‘collusion’ is an agreement between spouses that one will commit a matrimonial offence in order to have a ground for divorce: see Paul Toose, Australian Divorce Law and Practice (1968) [459], [470], [472].

[44] MCA s 41.

[45] Peter McDonald, ‘Can the Family Survive?’ (Discussion Paper No 11, Institute of Family Studies, 1984) 7.

[46] Ibid.

[47] Ibid 5–7.

[48] Margaret Harrison, ‘Who’s to Blame?’ (1989) 24 Family Matters 46, 46–9.

[49] The word ‘divorce’ only appears in the legislation once, in the long title (‘An Act relating to Marriage and to Divorce and Matrimonial Causes and, in relation thereto and otherwise, Parental Responsibility for Children, and certain other matters’).

[50] If the Family Court is not satisfied that proper arrangements have been made for the care, welfare and development of a child of a marriage, the Court has the power to adjourn dissolution proceedings until a report has been obtained from a family and child counsellor or welfare officer regarding those arrangements: FLA s 55A(2). This power is very rarely exercised.

[51] However, issues of family violence are significant when considering the best interests of children in residence and contact disputes: FLA ss 68J, 68K, 68N–T. They may also be relevant in disputes concerning the allocation of property. A sample of views which have emerged from the debate on the treatment of family violence can be found in the series of articles in (1995) 9(1) Australian Journal of Family Law 12–86. See also Juliet Behrens, ‘Domestic Violence and Property Adjustment: A Critique of “No Fault” Discourse’ (1993) 7 Australian Journal of Family Law 9.

[52] Australian Bureau of Statistics (‘ABS’), Divorce, ABS Catalogue No 3307.0 (1975).

[53] ABS, Divorces Australia, ABS Catalogue No 3307.0 (1976).

[54] ABS, Australian Demographic Statistics, ABS Catalogue No 3101.0 (2000).

[55] We define ‘public law disputes’ as disputes in which the state is involved as a party, in contrast with disputes involving private citizens such as parents or other family members.

[56] Quick and Garran, above n 37, 609.

[57] See, eg, on adoption: Adoption Act 1993 (ACT); Adoption of Children Act 1965 (NSW); Adoption of Children Act 1995 (NT); Adoption of Children Act 1964 (Qld); Adoption Act 1988 (SA); Adoption Act 1988 (Tas); Adoption Act 1984 (Vic); Adoption Act 1994 (WA).

[58] See Domestic Relationships Act 1994 (ACT); Property (Relationships) Act 1984 (NSW); De Facto Relationships Act 1991 (NT); De Facto Relationships Act 1996 (SA); Property Law Act 1958 (Vic) pt IX.

[59] Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337.

[60] Dowal v Murray [1978] HCA 53; (1978) 143 CLR 410; Vitzdamm-Jones v Vitzdamm-Jones [1981] HCA 8; (1981) 148 CLR 383.

[61] Russell v Russell (1976) 134 CLR 495.

[62] Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) s 5; Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) s 5; Jurisdiction of Courts (Cross-Vesting) Act 1987 (Qld) s 5; Jurisdiction of Courts (Cross-Vesting) Act 1987 (SA) s 5; Jurisdiction of Courts (Cross-Vesting) Act 1987 (Tas) s 5; Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic) s 5; Jurisdiction of Courts (Cross-Vesting) Act 1987 (WA) s 5; Jurisdiction of Courts (Cross-Vesting) Act 1987 (ACT) s 5; Jurisdiction of Courts (Cross-Vesting) Act 1987 (NT) s 5.

[63] The federal jurisdiction with respect to ex-nuptial children was unaffected because it had been achieved through a referral of State legislative powers to the Commonwealth, under s 51(xxxvii) of the Constitution.

[64] FLA s 79 provides for the alteration of property interests, which may be the result of an assault claim. Under ss 4(2) and 9(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), the Family Court was empowered to exercise original and appellate jurisdiction with respect to State matters. Section 3(1) of the Act defined a ‘State matter’ as including a matter in which the Supreme Court has jurisdiction otherwise than by reason of the law of the Commonwealth or of another State. A common law claim for damages for assault and battery is a State matter, as defined in s 3(1).

[65] See Marsh v Marsh [1993] FamCA 57; (1994) FLC 92-443; W v W; R and G (by Their Friend P) (Intervener) [1994] FamCA 34; (1994) FLC 92-475; Kennon v Kennon [1997] FamCA 27; (1997) FLC 92-757. See also Family Law Council, ‘Violence and the Family Law Act: Financial Remedies’ (Discussion Paper, Family Law Council, 1998).

[66] (1999) 198 CLR 511, 547 (Gaudron J), 546 (Gleeson CJ), 559–61 (McHugh J), 581–2 (Gummow and Hayne JJ), 601 (Kirby J dissenting), 625–6 (Callinan J).

[67] Commonwealth, Family Law in Australia, above n 22, iii. See also Margaret Harrison, ‘A Decade of Family Law’ (1990) 26 Family Matters 46, 46.

[68] Family Law (Amendment) Act 1983 (Cth).

[69] Commonwealth, Family Law in Australia, above n 22, 37–42.

[70] Commonwealth, Joint Select Committee on Certain Family Law Issues, Funding and Administration of the Family Court of Australia (1995).

[71] Family Court of Australia, Report of the Working Party on the Review of the Family Court (1990).

[72] Commonwealth, Review of the Auditor-General’s Audit Report, ‘The Administration of the Family Court of Australia’ 1996–7, Parl Paper No 33 (1997).

[73] Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System, Report No 89 (2000).

[74] FLA s 115 establishes the Family Law Council to advise the Attorney-General on the working of the FLA and other legislation relating to family law, the working of legal aid in family law and any other matters relating to family law.

[75] FLA s 114B establishes the Australian Institute of Family Studies to ‘promote, by the conduct, encouragement and co-ordination of research ... the identification of, and development of understanding of, the factors affecting marital and family stability in Australia’.

[76] See, eg, Family Law Council, The Administration of Family Law in Australia (1985); Family Law Council, The Family Law Council 1976–1996 — A Record of Achievement (1996); Peter McDonald, Settling Up, above n 35; Kathleen Funder, Margaret Harrison and Ruth Weston, Settling Down: Pathways of Parents after Divorce (1993).

[77] Family Law (Amendment) Act 1983 (Cth); Law and Justice Legislation (Amendment) Act 1988 (Cth); Family Law (Reform) Act 1995 (Cth).

[78] Commonwealth, Family Law in Australia, above n 22, 158.

[79] Ibid.

[80] FLA s 121 as amended by Family Law (Amendment) Act 1983 (Cth).

[81] FLA s 98A(1), (2).

[82] FLA s 68F(2) as amended by Family Law Reform Act 1995 (Cth).

[83] FLA s 67ZC as amended by Family Law Reform Act 1995 (Cth).

[84] [1992] HCA 15; (1992) 175 CLR 218 (Mason CJ, Dawson, Toohey and Gaudron JJ) (‘Marion’s Case’).

[85] Ibid 256.

[86] Ibid 257.

[87] 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).

[88] Neither the marriage nor the matrimonial causes powers being sufficient in respect of the States. There was no constitutional impediment to the Commonwealth legislating in respect of the Territories: Constitution s 122.

[89] FLA s 38W allows the Chief Judge to delegate all or any of his or her powers under s 38A to any one or more of the judges. Section 38N(2) provides that the duties, powers and functions of officers of the court are given to them by the FLA or the Chief Judge.

[90] The Child Support (Assessment) Act 1989 (Cth) s 99(1) confers jurisdiction on the Family Court in relation to matters arising under that Act, and s 117 lists the matters requiring the Court’s satisfaction before it can make an order for departure from administrative assessment in special circumstances.

[91] Marriage Act 1961 (Cth) pt II ss 1216.

[92] See, eg, the Hague Convention on the Civil Aspects of International Child Abduction, opened for signature 25 October 1980, 1498 UNTS 434, 19 ILM 1501 (entered into force 7 January 1988) which has been implemented in Australia through the Family Law (Child Abduction Convention) Regulations 1986 (Cth), pursuant to s 70G of the FLA.

[93] Family Court (Additional Jurisdiction and Exercise of Powers) Act 1988 (Cth) ss 35A, 86B.

[94] Australian Constitutional Commission, Australian Judicial System Advisory Committee Report (1987) 50–1.

[95] FLA ss 21, 26.

[96] The situation is different in Western Australia, where a separate Family Court exists.

[97] [1991] HCA 9; (1991) 172 CLR 84. See especially at 95 (Mason CJ and Deane J).

[98] Family Court Rules 1984 (Cth) O 36A r 3(l)(ii).

[99] Family Court Rules 1984 (Cth) O 36A r 3(l)(i).

[100] [1991] HCA 9; (1991) 172 CLR 84.

[101] Federal Magistrates Act 1999 (Cth) s 103.

[102] See, eg, Family Court of Australia, Submission by the Family Court of Australia to the Senate Legal and Constitutional Legislation Committee (1999) <http://www.familycourt.gov.au/court/

pdf/magistrate.pdf>.

[103] Family Court of Australia, Submission to the Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act (1994) [55].

[104] Commonwealth, Parliamentary Debates, House of Representatives, 24 June 1999, 7365 (Daryl Williams, Attorney-General).

[105] Ibid.

[106] The Family Law Amendment Act 2000 (Cth) also grants jurisdiction to the Federal Magistrates Service to make final orders in residence matters: see FLA s 69MA.

[107] See, eg, Family Law Council, Magistrates in Family Law: An Evaluation of the Exercise of Summary Jurisdiction to Improve Access to Family Law, Report to the Attorney-General, Family Law Council (1995) 2.

[108] Child Support (Registration and Collection) Act 1988 (Cth). This Act was formerly entitled the Child Support Act 1988 (Cth), but was renamed by the Child Support (Assessment) Act 1989 (Cth) s 166.

[109] Child Support (Assessment) Act 1989 (Cth).

[110] FLA s 73, repealed by Family Law Amendment Act 1987 (Cth).

[111] Margaret Harrison, Gregg Snider and Rosangela Merlo, Who Pays for the Children? A First Look at the Operation of Australia’s New Child Support Scheme (1990) 31.

[112] Margaret Harrison, Patricia Harper and Meredith Edwards, ‘Child Support — Public or Private?’ (Paper presented at the Family Law in 84 Conference, Hobart, 16–17 November 1984) vol 2; Funder, Harrison and Weston, above n 76, 118–19.

[113] [1986] FamCA 3; (1986) FLC 91-716.

[114] Ibid 75,194–6 (Asche ACJ, Fogarty and Cook JJ).

[115] Child Support (Assessment) Act 1989 (Cth) s 37.

[116] Child Support (Assessment) Act 1989 (Cth) pt V div 2.

[117] For example, the residual provisions of the FLA continue to operate in respect of maintenance of a child who has reached the age of 18 years: Cosgrove v Cosgrove [No 2] (1996) FLC 92-701, 83,395 (Nicholson CJ, Finn and Maxwell JJ). See also the obiter dicta in B v J [1996] FamCA 124; (1996) FLC 92-716, 83,619 (Fogarty J) and the Full Court’s consideration of the duty to support children in Tobin v Tobin (1999) FLC 92-484, 85,936–40 (Finn, Kay and Chisholm JJ).

[118] FLA s 79.

[119] FLA s 79(4). This provision sets out the nature of these contributions, which may be financial or non-financial, direct or indirect. Under s 79(4)(c) this may include a specific ‘contribution made by a party to the marriage to the welfare of the family ... including any contribution made in the capacity of homemaker or parent’.

[120] The factors listed in FLA s 75(2) include: (b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; (c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; (na) any child support to be provided under the Child Support (Assessment) Act 1989 (Cth).

[121] FLA s 81.

[122] See Charlesworth, above n 32; Graycar, above n 32; Lisa Young, ‘Sissinghurst, Sackville-West and “Special Skill”’ (1997) 11 Australian Journal of Family Law 268, 276. See also Ferraro v Ferraro [1992] FamCA 64; (1993) FLC 92-335, 79,581 (Fogarty, Murray and Baker JJ), a ‘big money case’ in which the Court awarded approximately $7.5 million to a man and $4.5 million to his wife, giving less weight to her non-financial contributions. See also the very recent Full Court decision of JEL v DDF [2000] Fam CA 1353 (Unreported, Kay, Holden and Guest JJ, 26 October 2000) (note that at the time of publication the time for filing an appeal to the High Court had not expired).

[123] John Dewar, Grania Sheehan and Jody Hughes, ‘Superannuation and Divorce in Australia’ (Working Paper No 18, Australian Institute of Family Studies, 1999) 20–5.

[124] See, eg, Ferraro v Ferraro [1992] FamCA 64; (1993) FLC 92-335, 79 560; McLay v McLay (1996) 92-667.

[125] FLA s 72.

[126] FLA s 80(1)(a), (b).

[127] Juliet Behrens and Bruce Smyth, ‘Spousal Support in Australia: A Study of Incidence and Attitudes’ (Working Paper No 16, Australian Institute of Family Studies, 1999) 7. For a selection of the few reported cases where spousal maintenance has been made, see: Best v Best [1993] FamCA 107; (1993) FLC 92-418, 80,296–9 (Fogarty, Lindenmayer and McGovern JJ); Mitchell v Mitchell [1995] FamCA 32; (1995) FLC 92-601, 81,994–9 (Nicholson CJ, Fogarty and Jordan JJ); Clauson v Clauson [1995] FamCA 10; (1995) FLC 92-595, 81,912 (Barblett DCJ, Fogarty and Mushin JJ).

[128] Commonwealth, Family Law in Australia, above n 22, xiv.

[129] Ibid. For several years prior to 1984, the Family Court had adopted a presumption in a succession of cases that in a reasonably long marriage the starting point for property division should be equality of contribution. This was rejected by the High Court of Australia, which emphasised the broad discretionary powers provided by the legislation and the absence of any presumption: Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605, 613 (Gibbs CJ), 623–5 (Mason J), 635–6 (Wilson J), 639–41 (Deane J), 645–8 (Dawson J).

[130] Australian Law Reform Commission, Matrimonial Property, Report No 37 (1987).

[131] Commonwealth, The Family Law Act 1975: Aspects of Its Operation and Interpretation — Report of the Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act (1992).

[132] Ibid 233–4.

[133] Attorney-General’s Department, Commonwealth, Property and Family Law — Options for Change, Discussion Paper (1999) <http://www.ag.gov.au/aghome/commaff/fllad/familylaw/mpl/

welcome.html> [5].

[134] Ibid [9]–[12].

[135] Daryl Williams (Attorney-General), Shaping Family Law for the Future (1999) <http://law.gov

.au/ministers/attorney-general/articles/PressClub.html>.

[136] ‘Parental responsibility’ is rather unhelpfully defined in FLA s 61B as ‘all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children’.

[137] FLA s 64B.

[138] FLA s 65P.

[139] FLA s 68F(f), (i), (j).

[140] FLA s 68K(1)(b).

[141] See, eg, FLA ss 14, 19BA, 19Q.

[142] See Helen Rhoades, Regina Graycar and Margaret Harrison, The Family Law Reform Act 1995: The First Three Years (2000) <http://www.familycourt.gov.au/papers/html/fla1summary.html> .

[143] See Family Court of Australia, Orders Sought 1990–91 to 1999–2000 (2000) <http://www

.familycourt.gov.au/court/html/statistics4.html>.

[144] Linda Dessau, ‘A Unified Family Court’ (Paper presented at the Third National Family Court Conference, Melbourne, 23 October 1998) <http://www.familycourt.gov.au/papers/html/

dessau2.html>.

[145] Thea Brown (ed) 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 (1998) 87.

[146] FLA s 67ZA.

[147] FLA s 67ZA(2).

[148] FLA s 92A.

[149] The project has since been extended to the Dandenong registry. More information on the Magellan Project is available in Family Court of Australia, Submission by the Family Court of Australia to Senate Legal and Constitutional Legislation Committee Appendix A — Federal Magistrates Bill 1999: The Magellan Project (1999) <http://www.familycourt.gov.au/court/html/

attachmenta.html>.

[150] The research team is comprised of members of the Family Violence and Family Court Research Program, Monash University.

[151] For example, the Child Protection Amendment Act 2000 (Qld) has incorporated into the Child Protection Act 1999 (Qld) a new ch 7A ‘Interstate Transfers of Child Protection Orders and Proceedings’. The purpose of the new provisions is to protect children who move between jurisdictions, and to decide proceedings relating to the protection of children in a timely manner: s 191A(3)(a), (b).

[152] Protocol for Interaction between the Family Court of Australia (Darwin Registry) and the Northern Territory Department of Health and Community Services 1994 (NT); Protocol between Department of Family Services and Aboriginal and Islander Affairs and the Family Court of Australia 1996 (Qld); Protocol for Interaction between the Family Court of Australia (Adelaide Registry) and the Department of Family and Community Services 1996 (SA); Protocol between Child Protection Board, The Department of Community Services and the Family Court of Australia 1992 (Tas); Protocol between the Department of Human Services and the Family Court 1996 (Vic). WA is finalising a protocol, while NSW and the ACT have been negotiating with the Family Court about a protocol for some time.

[153] See Future Directions Committee, above n 18, 22: ‘[T]he self-represented litigants are increasingly the new reality and all court services and procedures must address them as a permanent, significant and growing user group. Courts must be involved in co-ordinating help to self-represented litigants.’

[154] Chief Justice Alastair Nicholson, ‘The State of the Court’ (Address presented at the Third National Family Court Conference, Melbourne, 20 October 1998) Family Court of Australia <http://www.familycourt.gov.au/papers/html/speech.html> [18].

[155] See, eg, John Dewar, Barry Smith and Cate Banks, Litigants in Person in the Family Court of Australia, Research Report No 20 (Family Court of Australia, 2000).

[156] Nicholson, ‘The State of the Court’, above n 154, [18].

[157] Ibid.

[158] Nicholson, above n 154, [19].

[159] Ibid [18].

[160] Family Court of Australia, The Family Court Book (1999).

[161] The examination is known as the ‘Self-Represented Litigants Project: A Challenge’. See <http://www.familycourt.gov.au/litigants/html/brief.html> .

[162] Family Law Legislation Amendment (Superannuation) Bill 2000 (Cth).

[163] Not as property, but as an interest not owned by the parties; under FLA s 4(1) the Family Court has power to deal with property that is owned by the parties at the date of the hearing.

[164] McDonald, above n 35, 199. See also Sophy Bordow and Margaret Harrison, ‘Property Litigation: An Analysis of Family Court Cases’ (1994) 8 Australian Journal of Family Law 265, 269–70. See generally Dewar, Sheehan and Hughes, above n 123.

[165] Jenni Millbank, ‘Hey Girls, Have We Got a Super Deal for You: Reform of Superannuation and Matrimonial Property’ (1993) 7 Australian Journal of Family Law 104, 106–9.


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