Australian Civil Liberties Union

Your Rights 2005

Chapter 5

FAMILY LAW

Family Law Act. Divorce. Maintenance. Parenting Plans, Adoption. Rights of Children. Civil and Contractual Liability. Defacto marriages, Domestic Violence, Stalking, Intervention Orders.

THE FAMILY LAW ACT

Divorce. Under the Family Law Act, there is only one ground for divorce — that of irretrievable breakdown of a marriage. Under the law, a marriage has irretrievably broken down if the husband and wife have separated and have lived apart from each other for 12 months, and there is no reasonable likelihood of their reconciliation. A court may accept evidence that the parties lived separately and apart in the matrimonial home. This is difficult to prove and would usually have to entail sleeping in different rooms and leading completely separate lives. One resumption of cohabitation for a period of not more than 3 months does not bring the separation to an end. Thus two periods of separation with an intervening period of resumed cohabitation no greater than 3 months can be added together to make the necessary 12 months separation.

If the proceedings are uncontested generally neither the applicant nor a legal practitioner need appear. In the case of children under 18 years the person having actual control of the children must attend, unless a satisfactory affidavit covering the welfare of the children is filed. After one month a decree becomes absolute and the parties are no longer regarded as husband and wife and are free to remarry. Fault is no longer taken into account as a ground for divorce. Under the law there are no more divorces on the grounds of adultery, cruelty, or desertion. If the parties applying for divorce have been married for less than two years, the Court will not nominally hear proceedings unless it is satisfied that the parties have considered reconciliation with the assistance of a marriage counsellor.

Procedure. An application for divorce is lodged with the Family Court or the Federal Magistrates Court. Application forms may be obtained from the Court or from law stationers. The forms must be completed either with typing or printed long-hand. A fee of $606 ($288 in the Magistrates Court) is payable on the lodging of the application and this may be paid by cheque or by cash. A certificate of marriage, or a certified copy must be lodged with the Court. The Application sets out the particulars of the marriage, the period of separation, the children if any of the marriage and the applicants proposals for their welfare. A short affidavit attached to the application must be sworn indicating that the contents of the application are true. A copy of the application is served on the other party by post or by someone other than the applicant handing the document to the other party.

If served by post the other party should sign and return an acknowledgement of service. If served in person the other party should be identified by appropriate questions and asked to sign an acknowledgement.

An affidavit of service must be filed with the Court with a copy of the application annexed. It is important to ensure that service is effected properly and it is advisable to use a licensed process server for personal service. If the other party cannot be located it will be necessary to obtain an order for substituted service.

CHILDREN. The Court has the special task of protecting and promoting the welfare and rights of dependent children. The paramount consideration which will guide the Court in these matters will be the welfare of the child. Although the Court is not concerned with fault the conduct of the parties will be relevant. The child may be separately represented. The wishes of children will be given special consideration.

Parenting and Contact Orders. New legislation gives the Family Court jurisdiction over all children, whether or not they are children of a marriage. Any person, not only the parents of a child, who has an interest in the care, welfare and development of a child, can start an action for a parenting order. There are four types of parenting orders: resident orders, contact orders, specific issues orders and maintenance orders (where a child is not covered by the Child Support Scheme).When the court is considering whether to register a parenting plan or to make a parenting order, the starting point is whether the plan or order is in “the best interests of the child.” The court must also consider the factors set out in the legislation. Some of these are the child’s relationship with each parent; the capacity of each parent to provide for the needs of the child; the likely effect on the child of any change in the child’s circumstances; the need to protect the child from physical or psychological harm, any family violence involving the child or a member of the child’s family; the child’s maturity, sex and background and any need to maintain a connection with a lifestyle or culture, and if the child is of a sufficient maturity, the child’s wishes. The court will also consider the suitability of any proposed surrogate parent with whom the child would be residing. Usually the court will not make an order relating to residence, contact or specific issues unless the parties have attended a conference with the court counsellor or welfare officer.

Contact Orders. The legislation acknowledges that the child has the right to have contact on a regular basis with both parents except when it is or would be contrary to the child’s best interests. Parents must do everything in their power to ensure that contact works smoothly. The most common contact order will allow contact to the non-residential parent on alternate weekends and for half of the school holidays.

Penalties for refusing access to children since late December 2000.

Parents refusing access to children will face compulsory parent education, fines, community service or even one year’s jail. The laws remove judges’ discretion not to impose penalties. Repeat offenders must be either fined, given community work,put on good behaviour bonds or jailed. The laws will also apply to parents who repeatedly refuse to take their child for weekend visits.

In the past, judges were not compelled to set a penalty for breaches of access rights. The laws were introduced to make parents aware their responsibilities to their children endured even when their relationship did not. Some lawyers have claimed the laws amounted to mandatory sentencing.

Maintenance. The right to maintenance under the Act is based on the needs of the party seeking it and the ability of the other party to pay. There are specific matters for the Court to consider when it is dealing with maintenance applications. These include the age and state of health of each of the parties, the income and financial resources of each of the parties and their financial obligations, whether either party is entitled to superannuation, an appropriate standard of living for each party and the responsibility of a party to maintain other persons such as a prior spouse, children of a defacto relationship or a widowed parent.

In deciding what payments should be made, the Court will consider whether persons seeking maintenance have to care for children, and also the extent to which a marriage has affected the earning capacity of the marriage partners. It will also look at the possibility of the persons concerned taking on training courses or further educational courses to improve employment prospects. Both parties are liable to maintain their children according to their respective means, and the Court is to be guided by similar considerations in deciding what order to make A maintenance order for a child remains until the child reaches 18, unless the child becomes self-supporting, or marries. A maintenance order for a spouse generally ends if the spouse remarries.An application for a variation of an order can be made to the court if circumstances change. Under the child support system, maintenance payments are deducted from wages and are paid by the relevant Department to the person with responsibility for the child.

Matrimonial Property. The Court has power to settle disputes about the family assets. After a divorce, and in certain other cases where the parties are unable to agree how the family assets should be split up, the Court can order how it should be done. When doing this, it will consider the interest each of the parties has in the property and the contributions made by each party during the marriage. The Court looks at the financial contributions made by the parties and at the contribution made by either party in the capacity of homemaker or parent.

Pre-Nuptial Agreements. Prenuptial agreements became legally enforceable on 27th December, 2000, in an effort to reduce the amount of time taken resolving disputes in the Family Court. An amendment to the Family Law Act allows couples who are engaged or married to make binding financial agreements about how they will deal with their property and assets in the event of a marriage breakdown. Couples can tailor the agreement to their own needs, but both parties are required to seek independent legal advice before signing the documents. The legislation is not retrospective, so couples who have an existing prenuptial agreement will need to have it amended after 27/12/2000 for it to be legally binding. While prenuptials have been used in the past, the Family Court has not been bound to uphold the agreements. Under the new legislation, once people enter into a valid prenuptial agreement, the court will have no jurisdiction to order a property settlement.

Agreements:

What to do: You seek independent legal advice before signing anything. Make sure you walk away with your own copy of the agreement. In the case of separation, if money is involved and your partner does not pay on time, be sure to add interest. In a premarriage agreement be sure to include the date you are contemplating marriage.

What not to do: You should not hide any assets from your partner and you should add a clause to cover changed cirsumstances, such as children, serious injury or illness. You should not delay in enforcing the agreement if the marriage breaks down. The court will only enforce it if it is processed quickly. Most Australian couples choose not to include lifestyle clauses. Such clauses are common in the U.S. Lifestyle clauses enable couples to detail exactly the ways they want to live together including decisions on everything from the religion and education of their children to the treatment and the frequency and type of sex the couple expect from one another. The new agreements will limit the role of the Family Court, which has traditionally ignored the contents of prenuptial agreements and focussed on devising its own division of marital assets based on concepts of fairness. Courts will still automatically set aside any agreement obtained by fraud or unconscionability, or where the arrival of a child has brought a material change in the couples’ circumstances. Agreements will be most useful for second marriages, where the children are grown up or where the partners are older. Many people do not realize that their life can change dramatically in just a few years as to make an agreement seem obsolete and outdated. Couples should consider signing agreements valid for a limited period, such as five years. The new laws have removed the capital gains tax exemption on any assets sold when a couple splits. Now only the family home is protected. (See Australian, 27/12/2000 and The Age, 26/12/2000).

Maintenance, Property Matters and the Welfare of Any Children need not be resolved before a divorce is granted. Thus a Court can grant a divorce whether or not maintenance, property and the childrens’ welfare, have been resolved between you and your spouse. However, the divorce decree will not become final unless the Court is satisfied that proper arrangements have been made for the children of the marriage. When seeking a divorce you may have already reached agreement with your spouse on a parenting plan for your children, on the division of property between you and on the payment of maintenance by one of you to the other. This would avoid the need for a contested case.An agreement between the parties on these issues can be registered with the Court.

If you have not reached agreement on these matters or some of them, either you or your spouse can apply to Court for an order in relation to your children, a parenting order, maintenance, and the transfer of property, by one or the other issuing proceedings supported by affidavit.The application can be made before or after the divorce. However in the case of maintenance or property, if you have not made such application before the divorce becomes final, and you wish to do so, you should make it within 12 months of the divorce being granted. Either you or your spouse can apply for a variation of a maintenance order on the ground that the financial circumstances of either of you have changed or there has been a change in the cost of living. After a divorce the Court is, as far as it can, to make a final order between you.

Legal Aid. The law recognizes that even with the simplest procedures, many people will not be able to afford the legal costs associated with Court proceedings. Specific provision is made in the Act for legal assistance to be given to people who are unable to afford legal representation. The various State Legal Aid Commissions are specially equipped to deal with problems under the Family Law Act. A means and needs test is applied by the Legal Aid Offices and a financial contribution may be required. If you need legal advice and assistance contact the Legal Aid Office closest to you. The address and telephone numbers are listed in Chapter 1.Where there is no local Legal Aid office information can be obtained from the local Court.

Counselling. The Family Court aims to be a helping court. Court Counsellors are assigned to each branch of the Court. The Counsellor’s role is mainly to confer by order of a judge with parties to endeavour to assist them to amicably resolve disputes about parental responsibility for children and to assist to minimise bitterness. Counsellors also prepare reports for the Court relating to the welfare of the children. They do not normally act as marriage guidance counsellors as this role is carried out by marriage guidance organizations. Where proceedings have been started the Court must consider from time to time whether there is a possibility of reconciliation and, if so, it may refer the parties to proceedings to the Court counsellors. The location and phone numbers of the Family Court are set out in Chapter 1.

De facto Marriages. A couple who live together as though they are husband and wife are regarded as having a “de facto marriage.” The law varies from State to State but generally de facto couples have similar legal entitlements to married couples after living together for two years, or if they have a child together. Generally if the de facto marriage breaks up, either party can apply for a division of property if they have contributed to the property through financial contributions, work done on the property, or a contribution as a parent or homemaker. Either party may also be able to obtain maintenance for themselves and for any child resulting from the relationship. Where de factos separate the partner having care of a child may be eligible for a pension. De factos have the same rights to compensation as a married couple, if their partner is killed in an accident, but since they may not have the same inheritance rights de facto couples should make wills.

Domestic Violence, Stalking, and Intervention Orders. The police have wide powers including powers to enter premises to deal with actual or threatened violence in the home. The police or the victim can lay charges, and the offender may be ordered to leave the home and refrain from approaching the victim. If such an order is breached the offender can be arrested. Help may also be obtained from counselling services, womens’ refuges, the Salvation Army and legal aid offices. Going to a womens’ refuge does not affect entitlement to maintenance custody and property settlement.

If you are suffering from violence in the home you should report the violence to the police who can lay criminal charges for assault or property damage. You or the police can also apply for an Intervention Order or (in N.S.W.) anticipated violence order to protect you from further violence. If you have been injured you should see a doctor as soon as possible so that the injuries can be independently verified. You, or a person authorised by you, such as a solicitor, social worker or friend, can apply for an anticipated violence order (AVO) or an intervention order at the Local or Magistrate’s Court, or a Children’s Court. The Family Court may make a restraining order which is similar to an Intervention Order. You may apply for an Order if you have suffered physical abuse (for example, being punched or threatened with physical abuse); mental abuse, such as harassing phone calls, verbal abuse and offensive behaviour; sexual abuse; damage to your property or threats of damage to your property; or stalking, for example, repeatedly being followed, telephoned or being sent things with the intention to scare or harm you or someone else. Stalking involves repeated acts such as following someone, contacting someone by any means including by telephone or fax; interfering with anyone’s property; giving someone offensive material; entering or loitering around someone’s home or work; keeping someone under surveillance; and generally acting in a way which may make someone scared for their own safety, or someone else’s safety.

The police should apply for an Order if your safety, welfare or property is endangered and the threat is ongoing. Legal Aid may be available for a lawyer to assist you.

How to Apply for an Intervention Order. You may apply for an order yourself. A court official will give you the forms to fill in, and will either issue a summons giving the alleged offender notice to appear in court, or a warrant, allowing the police to arrest the alleged offender immediately, and bring him or her to court.

You can apply for an Interim (temporary) Order if you believe your safety will be threatened before the hearing of the final order. This order can be obtained from the Court without the alleged offender being there, be granted the same day it is applied for, and gives legal protection until the final hearing once it has been served. If you obtain an interim order, you must go back to court on the date for the final hearing so that the order can be continued. The Court will issue an order if it believes that you have been harassed or been the subject of offensive behaviour, and you fear it will happen again; that you have been threatened with violence or abused and you fear that it will happen again; or your property has been damaged or threatened with damage and you fear it will happen again, or you have been harassed or been the subject of offensive behaviour and you feel it will happen again.

The order, which may be of indefinite duration, may order the offender to participate in counselling; remove the offender from your house; prohibit the offender from entering or coming near your home or area, your place of work or children’s school; prohibit the offender from damaging your property; prevent the offender from getting another person to contact or harass you; and order the offender to dispose of any firearms and revoke an existing gun license.

The police have automatic power to arrest without a warrant if an intervention order, including an interstate intervention order, which has been registered with the court is disobeyed. Instead of making an arrest the police may issue a summons, requiring the offender to attend court at a later date. If the offender is arrested he or she may have to show cause why bail should be granted. If the offender is released then police may attach bail conditions similar to an Intervention Order. If an offender is convicted of a breach of the order, the offender can be placed on a good behaviour bond, fined or sent to jail.

Crimes Compensation. If you are a victim of domestic violence, sexual assault or stalking you may be able to seek monetary compensation from a Compensation Tribunal. See Chapter 13.

Adoption proceedings are more or less uniform throughoutAustralia.The consent of the parents or guardians of the child is required before any adoption order can be made.

In the case of an ex-nuptial child the consent of the father is not required unless he is the guardian of the child. Consents may be revoked within thirty days, the consent of a mother is ineffective if it was made before the child’s birth, and an order will not be made relying on a mother’s consent given within five days after its birth unless the court is satisfied that she was capable of giving a proper consent.

THE RIGHTS OF CHILDREN (General Advice Only)

The law relating to the rights of children under criminal and civil (non criminal) law varies from State to State.The law in some States has been significantly changed in recent years and further changes are under way. This section is accordingly only a general guide to the rights of children.

Family care. A child of any age, under 18, is legally entitled to receive adequate food, clothing and accommodation. If the child’s family does not provide these, the Government can remove the child and place him or her under the care of someone who will do so.

Leaving home. Children can leave home without parents’ consent at 17. If they are younger and can show they have adequate accommodation, can support themselves and are not in any moral danger they will not be forced to return.

Protection of Children. Normally a child (a person under 18 years of age) will live within the custody of its natural or adoptive parents. However, the law has made provision for the care and protection of those children who for one reason or another do not have this security. In the case of the child of a defacto relationship, the mother has a right to its care and custody which is very difficult to defeat. The mere existence of a bloodtie with its natural father does not mean that the father has any automatic legal right to a child of a defacto relationship. He may bring proceedings to have its custody awarded to him, or to legally adopt it. Although the courts will pay some attention to familial relations, they are bound to treat the welfare and interests of the child itself as being of paramount importance. The claim of the mother of a child, especially a very young child is very strong. It must be shown that she is not doing or is unable to do a good job as a mother rather than that she is an immoral person, although her character may be taken into account in deciding upon her capacity as a mother.

State laws set out in detail provisions for care and protection of children and young people. A child under the age of 16 who is in need of “care and protection” may be apprehended without a warrant by any member of the police force or by any person authorized by the appropriate Minister. The criteria for determining whether or not the child is in need of care and protection at any time, are set out in the relevant Acts. They generally include having no fixed place of abode, being without visible means of support not being provided with sufficient food, nursing or clothing, being ill-treated, being exposed to moral danger or being in the care of an unfit person.

Civil Liability-Tort. When can a child be sued for damages in respect of loss or injuries caused by its actions? Although until a person turns 18 he is not a complete legal person, he can be sued through his “guardian”, usually his parent or guardian, and a judgement may be entered against him. As a general rule, an infant is liable at law for injuries and losses intentionally caused by his actions, if it can be shown that he did form the requisite intention. With respect to liability for negligence, a child is expected to conform to the standard of care which ordinary children of his age, intelligence and experience would exercise. If a child lacks the capacity to understand the nature of his actions and the possibility of harm arising from them, he will not be liable. However, a minor who engages in an adult activity like driving a car, will probably have to conform to normal adult standards of care, regardless of his age and experience.

Contractual Liability. What contracts can an infant undertake, enforce or be sued upon? Generally only contracts securing “necessaries” for the infant are enforceable against him.“Necessaries” include food, clothing, housing and medical care and beneficial services such as education or apprenticeship, etc. Even in this type of contract the infant need only pay a reasonable price for the necessaries. Other types of contracts are said to be absolutely void, and although it is not clear whether a court would refuse to allow an infant to enforce them it certainly would not allow the other party to enforce the contract against him. There are situations where a contract entered into by a person during his infancy can be ratified or confirmed by him after he turns 18. These contracts then become enforceable against him. If an infant has represented himself as being over 18 and has obtained goods under a contract, although he cannot be sued on the contract, for instance to recover the price of the goods from him, the courts will order that he return the goods if they are still in his possession. Because of the contractual incapacity of minors, most people who contract with them will require an adult third person to enter the contract as a guarantor or indemnifier. If the minor defaults on the contract, it can be enforced against his guarantor instead.

Hospitals also usually require a person about to undergo surgical treatment to sign a consent and indemnity form relieving the hospital from civil liability arising out of the treatment. When the patient is a child under 14, this consent is required of its parent or guardian before the treatment will be given, unless of course it is immediately necessary to save its life. Children over 14 can consent to an operation, but a parent’s consent is usually obtained.

Getting Married. You can marry once you turn 18. If you are 16 or 17 you can only get married if: your parents agree, your boyfriend or girlfriend is at least 18, and a magistrate or judge is satisfied that there are exceptional and unusual circumstances.

Wills. A will made by a minor is invalid. There are special exceptions to this rule which cater for members of the armed services who may be minors, but who wish to make a will before active service.

Evidence. Minority does not carry an incapacity from giving evidence in court. If the court is of the opinion that the child does not fully understand the nature of an oath, but does understand the duty to speak the truth, he may be required to give evidence not on oath. In most cases courts are unwilling to convict someone on the uncorroborated evidence of a child of “tender years”.

Criminal Liability. It is conclusively presumed that no child under the age of ten (in most States) is capable of committing a crime. Between the ages of 10 and 14 a child is considered capable of committing a crime if it is shown that at the time he knew that the act he was doing was wrong and that he intended to do it anyway.A person over the age of 14 is treated as an adult for the purposes of the criminal law.

Police questioning. If a child under 18 makes a statement to police without a parent, lawyer or other adult present, the statement usually will be rejected as court evidence.

Sex. There are age limits on when you are allowed to have sex. If you are: Under10. No one is allowed to have sex with you (even if you agree). Between 10 and 16. A person is not allowed to have sex with you if they are more than 2 years older than you (even if you agree). Aged 16 or 17. A person is not allowed to have sex with you if you are under their care, supervision or authority, e.g. teacher, youth worker (even if you agree). The law applies equally to men and women. Homosexuality is not against the law.

Drinking. A child under 18 who drinks alcohol on licensed premises, and any person who serves the drink, can be prosecuted.

Childrens Courts. There are detailed statutory provisions concerning the conduct and jurisdiction of Children’s Courts. Broadly speaking a Children’s Court can hear and determine all charges against children under 17 except charges of homicide, as well as making the type of orders regarding the care and custody of children already referred to.

In cases of indictable offences, the child, if he is over 14, or his parents or guardians may choose to be tried by jury. The Court has power to order the place where the hearing is being held to be cleared of the public if it thinks fit, and if it is in the interest of the child, to order the child also to be removed from the courtroom.

When a child is apprehended either for an offence or for being in need of care and protection, he may pending the hearing be placed in a reception centre or placed with some responsible person or if necessary placed in a jail, but kept apart from the other prisoners. If a child fails to attend the hearing of his case, he may be apprehended without a warrant. The Court may take into account a wide range of considerations regarding a child’s background and environment in reaching its decision.

The Children’s Courts have wide powers to make orders on proof of the offence with respect to children appearing before them.They may without convicting him, dismiss the information if the child has no other convictions, release on probation for a specified time of up to three years, or adjourn proceedings for up to two years, all subject to any conditions it thinks fit. It may also order the child to make such compensation as is necessary. Upon conviction, the court may discharge the child subject to conditions, order him to pay a fine, commit him to the care of the Department or imprison him for a period of up to one year if he is over 16. If the court is satisfied that the parent or guardian of the child substantially contributed to the commission of the offence, such person may be charged and ordered to pay such costs and penalties instead of the child. There are also detailed provisions in the law dealing with probation.

Most importantly a child who breaks the conditions of his probation may be brought before the court and the original charge reconsidered. There is also a restriction on producing evidence in later cases of Children’s Court charges against a person more than three years after the charge being brought.

Education and Employment. Attendance at school on every school day in each week is required of every child between the ages of 6 and 15. Reasonable excuses for nonattendance are allowed; e.g. sickness or that the child is under some other efficient and regular course of instruction. Penalties are imposed on parents or guardians whose children do not attend school. It is an offence to employ a child or permit a child to be employed during school hours. It is an offence to employ children without a permit to do so, or to employ children in any work which is dangerous to their life or limb.

Discipline by Parents and Teachers. Parents and guardians have the right to exercise reasonable discipline over children. Courts are careful not to interfere too much in family relationships, but any discipline which reached unreasonable proportions could be the subject of either a civil or criminal action. The law is generally unwilling to dictate to families the way they must behave towards each other, and it would have to be clearly shown that the discipline imposed on the child was excessive before a prosecution would be likely to be instituted, or damages awarded. Excessive discipline is also one of the factors which would distinguish a child as being in need of care and protection under the relevant State Acts. Teachers may not impose dangerous or degrading punishment, and there are strict rules concerning the infliction of corporal punishment. Punishment which went outside the discipline reasonably necessary to preserve order might be the basis of a civil action for damages for assault.

Voting. People must enrol with the Electoral Office when the they turn 18, and vote at all elections after that time. Unemployment benefits will not be paid until a person attains the age of 16. Persons under 16 can apply for a Special Benefit or Job Seekers Allowance.

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Australian Civil Liberties Union