LAWS5020: Family Law Semester 1, 2021

COURSE NOTES
Week 1 – Studying Family Law: Concepts
1. What is a family?
 Contemporary view – the nuclear family model is in decline with the rise of
alternative family forms  the rise of the egalitarian family.
 Nuclear family remains the dominant construct in law and society.
o Other families exist but have not replaced the nuclear family.
 The family the law recognizes can privilege the interests of some people in society and
not others  reproduces social hierarchy.
 Tension in family law between treating family as nuclear (reinforcing inequalities) or
as equality (masking those inequalities).

2. Concepts of the Family in Law

 The Nuclear Family
o It is the natural family/biological family best suited for socialization of
children and for continuation of society (Lasch).
o Gendered roles of mother and father necessary for children’s wellbeing
(Rossi).
o Necessary for society (structural functionalism) – i.e. family serves an
important function; mothers and fathers serve important functions with respect
to the socialization of children preparing them for their future roles in society.
 The Sexual Division of Labour
o The nuclear family depends on the sexual division of labour.
o Effect is to create unequal gender relations.
o Law presented as neutral makes it difficult to detect how it reinforces the
sexual division of labour.
 The public/private distinction
o The family is constructed as private, unless it has broken down then the law
will step in.

3. What is the Role of Law?

 Do we accept law’s role as only intervening when the relationship breaks down?
 Even then, the law is not addressing the broader issues of gender inequality in a
market economy that produces and is supported by the private family.
 Questioning the role of law in the regulation of the family exposes how the law cannot
engage in this subject without its own definition of the family- it ultimately depends
on theoretical assumptions about the family that are neither neutral or value-free.
 We cannot study family law in the absence of understanding different perspectives on
the family and reflecting on own perspectives.
 A central inconsistency is:
o The family is founded on dependencies and when a relationship breaks down,
allowance must be made for caregiver role;
o Family as based on choice and individualism – the role of law is to help the
individuals move on when their relationships break down.

Week One Tutorial Questions

1. How do you understand the concepts of the nuclear family, the sexual division of
labour, the public and private distinction?
 These concepts all contribute to the long-standing stereotypes within families that set
out the pre-designed roles of each family member e.g. women are viewed to be more
domesticated and even if they have full time jobs and great careers, they are expected
to do bulk of the home duties, while the male contributed is largely confined to
outdoor tasks and leisure activities with children.
 Sexual division of labour – gendered stereotypes in workforce, about how market and
economy is structured and how work men and women do is valued differently.
 Public private distinction – roles are delegated how families see fit without influence
from any external factors (private), however way public sees family may be different.

2. What is the relevance of studying these concepts (the nuclear family, the sexual
division of labour, the public and private distinction) in the context of the study of
family law?
 It reveals to us as students how the law has developed alongside these pre-standing
concepts over time and the implications they have for families today.

3. The authors Bittman and Pixley talk about the ‘myth’ of nuclear family. What is the
argument put forward by the authors?

4. What would a just family look like?

 No one answer, very subjective, but it is a family that is fair for all those peoples’
interests involved.

5. Can you articulate a conceptualisation of the family that the law should adopt
 A gender-fluid structure i.e. no stereotypical roles based on gender of parent.
 Diverse family structure regardless of whether male-female married.
Week 2 – Family Law and its Institutions
1. What is an Australian Family?
 How we perceive families are reflected in law.
 Theoretical discussion of family are dependent on the perspective adopted by the
author.
 The Australian Constitution and Commonwealth legislation uses the ideas about
family as a nuclear family.
o This reflects the reality of some families, but not all e.g. single parent families,
indigenous. migrant families may have different structures and needs.

2. Constitutional Arrangements
 Division of legislative authority between the Commonwealth and the states
(federalism).
 Federation and Australian Constitution 1901 s 51  legislative authority to
Commonwealth parliament for Marriage and Divorce/matrimonial causes.
 Commonwealth Parliament enacted:
o Firstly, Matrimonial Causes Act 1959 – replaced all state laws
o Secondly, Marriage Act 1961
o Thirdly, the Family Law Act 1975 – replaced the Matrimonial Causes Act
1959.
 Residual powers are vested in all the states:
o State laws;
o Child welfare laws;
o Adoption laws;
o Succession laws.
 Marriage Act 1961 (Cth) – provisions determine what is a valid marriage,
legitimisation of children.
 Family Law Act 1975 (Cth) introduced:
o New law of divorce – no fault divorce
o New laws relating to the custody and guardianship of children
o Provision for the maintenance of children and spouses
o Provisions for the declaration and alteration of the interests of spouses in
property, and
o Matrimonial injunction
o Also created the Family Court of Australia to administer Commonwealth
family law.
 HC held that the marriage power cannot cover a child who is neither a natural child of
both the husband and wife nor a child adopted by them – would stray too much from
institution of marriage under s 61.
o Blended families cannot come under jurisdiction from FLA.
 The High Court is the head of the court system in Australia and compels us to ask
whether having a specialist court matters if the HC is relying on the conventional
methods of legal reasoning.
 Conventions of interpretation of the Constitution  HC is not specialist court.
o Simple rules of interpretation can have normative implications.
o The choice of rule of interpretation is connected with the substantive issues of
fairness of family law (theoretical understanding of interpretation is
necessary).
  Conventional methods of interpretation do not accommodate these
concerns.

3. Intrinsic Meaning of ‘Marriage’

 Meaning of “marriage” in s 51 (xxi) of Constitution
o Formal, monogamous, heterosexual institution only?
o This meaning has implications for legal regulation of polygamous marriages,
same-sex marriages and de facto relationships.

4. Institutions of Family Law

 The Family Court of Australia is now called the Federal Circuit Court and Family
Court of Australia (Federal Circuit Court and Family Court Bill 2021).
 Other courts exercising family law jurisdiction include state and territory courts (e.g.
Family Court of Western Australia and Supreme Court of NT.
o Overarching purpose of the new Act – s 6 – to create one entry point
 The federal court known as the Family Court of Australia continues in
existence as the Federal Circuit and Family Court of Australia
(Division 1). The Court consists of the Chief Justice, the Deputy
Chief Justice, Senior Judges and other Judges. The Court has
original jurisdiction in matters that are the subject of family law or
child support proceedings transferred from the Federal Circuit and
Family Court of Australia (Division 2) or as conferred by another law
of the Commonwealth, and has appellate jurisdiction in family law and
child support matters.
 The federal court known as the Federal Circuit Court of Australia
continues in existence as the Federal Circuit and Family Court of
Australia (Division 2). The Court consists of the Chief Judge, 2
Deputy Chief Judges and other Judges. The Court has original
jurisdiction in general federal law matters, as well as family law and
child support matters.
 All proceedings before the Federal Circuit and Family Court of
Australia are subject to case management. The overarching purpose of
case management is to facilitate the just resolution of disputes
according to law as quickly, inexpensively and efficiently as possible.
Judges may be authorised to manage classes of proceedings. The
parties and their lawyers are required to cooperate with the Federal
Circuit and Family Court of Australia, and among themselves, to assist
in achieving the overarching purpose.
 The Chief Executive Officer (and Principal Registrar (Div 1) is to
assist the Chief Justice and the Chief Judge in managing the
administrative affairs of the Federal Circuit and Family Court of
Australia.

5. Structural Reform to the Federal Courts

 Federal Circuit and Family Court of Australia Bill 2021
 Create a new court (a single-entry point): Federal Circuit and Family Court of
Australia (FCFC) 
o 2 Divisions (Div 1: the family law jurisdiction; Div 2: the FCC jurisdiction
(family law and federal matters).
o To overcome costs and delays of current system.
o Reduce appellate jurisdiction of the current Family Court.
 o The FCFC (Division 1) will retain jurisdiction to hear family law appeals.
However, there will be no Appeal Division in the FCFC (Division 1). Instead,
all FCFC (Division 1) judges will be able to hear appeals either as a single
judge or as part of a Full Court. All appeals from decisions of the FCFC
(Division 2) and Family Law Magistrates of Western Australia will be heard
by a single judge, unless the Chief Justice of the FCFC (Division 1) considers
it appropriate for the appeal to be heard by a Full Court.
 S 67/190 – sets out overarching purpose.
 S 68/191 duties to make sure overarching purpose is achieved.
 Will the changes achieve its goals?
o Focus is on procedural flaws as standing in the way of access to justice.
o Ignores increasing number of self-rep litigants/decreasing legal aid.
• Not rich enough to afford proceedings but not poor enough to be
awarded legal aid.
o Ignores the complexity of the issues that come before the courts:
• Mental health issues
• Substances abuse
• Family violence

6. ALRC report 2019

 Recommendation 1 – the Australian Government should consider options to establish
state and territory family courts in all states and territories, to exercise jurisdiction
concurrently under the FLA, as well as state and territory child protection and family
violence jurisdiction, whilst also considering the most efficient manner to eventually
abolish first instance federal family courts.
 Rationale for recommendation:
o A jurisdictional gap
o Lack of co-ordination between the family courts and state and territory courts
in protecting children from violence and abuse.

7. The Family Court – Specialist Court

 Became a specialist court because of philosophy, structure and expertise.
o Philosophy – mediation with in-court facilities, Registrar, Judicial registrars,
Judges, court counsellors, avoid undue formality, therapeutic role of law.
o Structure – no robes for judges, no wigs, non-intimidating.
o Expertise – special area requires judges with special knowledge of family
issues.
 FCA now merged with the FCC in 2021  FCFC judges need the same qualification
as FCA judges.

8. The Rise of ADR

 The Australian legal system has come to rely heavily on ADR, with litigants in some
cases being legally required to try ADR before they can have the case tried by a Judge
o Same emphasis reflected in the initial provisions of the FLA 1975
o Replaced by the new terminology of FDR and more formal enforcement of the
obligations to try and resolve the disputes without litigation
o How can we assess whether this is a progressive move?
o Why ADR? – to avoid the drawbacks of using litigation to enforce legal rights/
 Drawbacks of litigation:
o Court procedures are excessively formal and inflexible – incapable of tailored
solutions
 o Rules of evidence and other procedural formalities prevent the truth coming
out
o Acrimony of cross examination
o Intimidating and impersonal environment
o Expensive to hire lawyers and barristers
o No surety of the outcome
o Imposed solution from above usurps parties’ control
o Winner takes all
o Possibility of losing and associated costs
o Delays in the final resolution
 Advantages of ADF over litigation:
o -Efficiency (both in terms of time and money)
o The fact that they promote a more cooperative, ‘problem solving’ approach to
the resolution of dispute.
o (rather than polarizing disputants and encouraging them to seek all or nothing
outcomes).
o The fact that they may be less intimidating and hence improve access because
of their informality.
 Drawbacks of ADR in family law:
o Sacrifices justice for cooperation by its lack of formalism (Eekelaar; Freeman)
o Is a missed opportunity for the re-affirmation of those values, ideals and
principles that the law of liberal democracies purport to reflect in their legal
systems (Freeman, Bottomley)
o By appropriating therapeutic processes and practices it brings individuals
under intensified State control and scrutiny of professionals (Bottomley,
Freeman, Milne, Bernard) – triumph of the therapeutic
o Paternalistic: Mandatory – undermines autonomy while giving the appearance
of enhancing autonomy
o Transforms conflicts based on legitimate grievances into mere disagreements –
privatizes disputes – reinforces private family (Bottomley)
o Ignores power asymmetries between disputants, specially if violence is
undetected (Astor & Chinkin)
o Can reinforce the sexual division of labour: women as primary carers forsake
their interests in the interests of children: any legal rights are replaced by
negotiation

9. FLA Provisions for Pre-Action Processes

• Property and financial cases in the Family court (only) mandatory pre-action processes
(Family Law Rules Part I of Schedule I - Pre-action Procedures) (FCC does not have
the same rules) – likely to change have to wait for new rules of the new FCFC.
• Parenting cases (in all courts) pre-action requirements in FLA s 60I (7)-(12).
• Parties to Parenting cases in addition subject to Family Law Rules Part II of Schedule
I - Pre-action Procedures.
• EXEMPTIONS:
o Rule 1.05 FLR pre-action compliance necessary for all cases in Family court
except for
o divorce; child support; case involves bankruptcy; application is in relation to a
case commenced in previous 12 months
o Compliance also not necessary if
 o - Allegations of child abuse, family violence, fraud; application is urgent;
compliance would be unfair to the applicant; dispute is genuinely intractable;
there is another good reason for non-compliance.
o = Can’t negotiate when there’s family violence.

10. Focus on Child Dispute – FLA Requires FDR

 s. 60I(3) of the Family Law Act, the dispute resolution procedures apply to prospective
proceedings for a parenting order in any court exercising jurisdiction under Pt. VII
(“Children”) of the Act
 Family Law Rules 2004 (Cth) Sch 1, Pt 2, pre-action procedures
 In parenting cases:
o Parties must attend FDR and make a genuine effort to resolve this dispute
BEFORE filing an application in the Family Court
o Attendance evidenced by filing a FDR certificate with initiating application
o Exceptions: (s 60I(9)(b), (c) and (e)) – discussed late.
 The 4 kinds of Certificates under s 60I(8) – needed to go to court
o that the person did not attend family dispute resolution because of the other
party’s failure to attend (s 60I(8)(a)) or that the person did not attend family
dispute resolution because the practitioner considers it would not have been
appropriate (s 60I(8)(aa))
o that the person attended family dispute resolution and all attendees made a
genuine effort to resolve the issues in dispute (s 60I(8)(b))
o that the person attended family dispute resolution but that person, or the other
party, did not make a genuine effort to resolve the issue (s 60I(8)(c)), or
o that the person began attending mediation with the mediator and the other
party, but that the mediator considered it not appropriate to continue the family
dispute resolution (s 60I(8)(d)).
 Exceptions to filing a Certificate s 60I (9) – needed to bypass FDR
o the application is made by consent of all parties or in response to an
application made by another party
o the court is satisfied, on reasonable grounds, that there has been abuse/family
violence or there is a risk of abuse/family violence of the child by a party
o the application relates to a "particular issue" (presumably this means a single
issue) and a parenting order has been made in relation to that issue in the
preceding 12 months and the application relates to contravention and there are
reasonable grounds to believe that the respondent has shown a serious
disregard for their obligations under the order
o the application is urgent
o one or more of the parties is unable to participate effectively in family dispute
resolution (including for reasons associated with remoteness)
o any other circumstance set out in the Regulations.
 In-court proceedings re child disputes
o Family Court to follow the Five Principles (FLA s 69ZN)
 Principle 1: consider child's needs and impact of proceedings
 Principle 2: court must actively direct, control and manage conduct of
proceedings
 Principle 3: safeguard against family violence, abuse and neglect
 Principle 4: promote cooperative and child-focused parenting
 Principle 5: reduce delays, formality, legal technicality and form

Tutorial Questions
1. Compare the views of Brown, Gilding and Hamilton about Australian families in the
readings. With respect to each, explain how law should regulate the familial
relationships described by each of them? 
 Gilding gives a bleaker picture of Australian family, looking at impacts on economy
on family life particularly around end of 1800s with depression  leading to wife
murders.
 Brown talks about absence of women in the bush  replaced by indigenous women
who were exploited, explained by Hamilton.
 Hamilton talks about how sexual relations between white men and Indigenous women
were damaging for indigenous peoples. Exposes effect of colonisation.

2. The Australian Constitution gives power to the Commonwealth to make laws with
respect to marriage. How does this impact on different relationship structures such as
same-sex relationships, Aboriginal traditional marriages and de facto relationships?
 It does not recognise these relationships as under the definition of a family, thus
depriving them of the same rights heterosexual married couples are awarded.
 Impacts their access to justice.

3. Do you think family disputes require specialized courts or other institutions? Why or
Why not?
 Yes, because of the array of complex issues involved in family disputes e.g. family
violence, mental health issues, substance abuse, third parties, etc. Specialised courts
are thus more equipped to provide the best outcome for these proceedings despite the
complexity typically involved with them.
 Non-court mechanisms need to be developed and specialised.
 Different divisions within a court that are specialised for certain issues.
 Specialised courts start with conciliation or meditation process  victims want to be
heard.
o Courts do not provide a tailored approach to each case.
 Provisions lacking in legislation for FDR practitioners – no legal requirement in
legislation to screen for violence.  needs work on so legislation is sending stronger
message that these things need to be detected.
 Tools available to help judges detect violence – need this in FCFC.
 With new court, all judges have same specialisation
o One specialisation - Understanding family violence
o But what does this actually mean?? What “understanding” of family violence
do judges need to have?
o Judges are dealing with different cases, may not have all evidence in front of
them relating to other instances relating to children being referred to state
services, AVOs in other proceedings – may take years before information
comes to family court.

4. Compare the merger of the Federal Circuit Court and the Family Court in February
2021 and the recommendations of the ALRC report 2019 to abolish the federal family
courts and establish state and territory family courts. What assumptions underpin
these very different proposals? 
 Jurisdictional gap how child protection is looked at and may cause time delays
between jurisdictions.
 Family court can disregard child protection orders.
 Family issues being determined in federal and state jurisdiction.
  Lack of co-ordination between the family courts and state and territory courts in
protection children from violence and abuse.
 Reason for merger:
o Focusing on procedural flaws (cost delays and time delays), not access to
justice.
o Different rules in FCC and FCA and cases would move, administrative issues
with that.
o One entry point
 Family court cases can still be heard in other courts e.g. local court.
 ALRC is recommending to desexualise system by establishing satellite courts.
 Merged across state and federal lines – FV dealt with in different forums, and not
enough done in federal system and state system. Instead of FV dealt with in different
courts, all FV cases dealt with in one court.
 States to refer all powers to Commonwealth – ALRC says have state deal with FV
issues, state courts will administer FLA as well as DV legislation and child legislation.

Week 3 – Family Formation

1. Theoretical Debates: Summary
 (1) History of the family as social progress
o Stone’s story of the rise of the nuclear family
 Argument: Between 1500-1700 English family changed/evolved in two
ways:
 The importance of nuclear core increased and that of extended
kin declined; and
 The importance of affective bonds increased and economic
functions of the family declined.
 Causes:
 Decline of kinship as the organizing principle of society.
 The rise of the modern state.
 Success of Protestantism.
 Result: for a time, the pre-existing patriarchal aspects of relationships
were strengthened but later (late 17 to 18 century) replaced but a more
individualistic and companionate type of family structure.
 (2) Critical history of the family
o In contrast to the structural-functional history of family critical theorists (like
Poster) argue that it is important to focus on the psychological pattern of
family because the modern nuclear family is praised for the emotional solace it
provides.
o However, middle class family is not simply a progressive, nest of love,
domesticity, individualism.
 New forms of oppression of women and children arose perpetrated
through emotional coercion.
2. The Development of Family Law as History of Progress
 Initially, family law critiqued as imposing disabilities on women and children.
o This is reflected in marriage as it is understood as a status relationship.
o In classical societies, changes in status are commonly accompanied by rituals
or formalities.
  However, we start to see a shift from status to contract  women start to be afforded
legal rights.
o Increasing individual rights of all members – legal inequality between spouses
is abandoned and they have the SAME rights (starting with Married Women’s
Property Acts).
3. Legal Provisions for the Formation/Recognition of Marriage
 Restrictions placed in 1800s:
o Certain marriages prohibited – widower with his deceased wife’s sister, a
widow with the brother of her deceased husband, etc.
 Minimal marriages are prohibited today:
o Marriage Act 1961 (Cth) s 23B(2) – ancestor or descendant, brother or sister,
siblings formed through adopting, adopted child and parent.
 Two aspects for creating a marriage:
o Formalities – relates to formal criteria
o Capacity – relates to the parties
 General rule of private international law for recognizing other marriages:
o Every country treats a marriage as a valid marriage if it was valid according to
the law of the place where it was entered into.
 Four sub-categories of marriages that can be formed in Australia:
o (1) Marriage performed in Australia by an authorized celebrant;
o (2) Marriage of defence force personnel overseas;
o (3) Marriage in Australia by consular officers of prescribed countries; and
o (4) Marriage performed overseas but recognized in Australia.
 S 42 – Notice of intention to marry
o Usually 4 weeks prior to wedding.
o Evidence of age and marital status.
 S 51 – grounds for nullity.
 S 23(1) and s 23B(1) – capacity to marry
o If either party is married to another person.
o If the parties are within a prohibited relationship
o If the marriage is not valid by reason of s 48 (performed by authorized
celebrate)
o If the consent of either party is not real because of duress or fraud, mistaken
identity, or lack of mental capacity.
o If either party is not of marriagble age (18 but with exceptions)
 S 5 – Interpretation
o “Marriage” means the union of 2 people to the exclusion of all other,
voluntarily entered into for life.
4. Legalisation of Same-Sex Marriage
 Debate largely focuses on marriage as a natural or biological unit stable for children v
individual choice/rights to equality.
 Legalised in Marriage Amendment (Definition and Religious Freedoms) Act 2017
(Cth).
5. Legal Provisions for the Formation/Recognition of De Fact Relationships
 Idelogigical choice – rejecting oppressive constitution of marriage.
 Pragmatic choice – prelude to/alternative to, but not different to marriage.
 Rationales for regulation:
o Because they are socially accepted
o Financial consequences of coupledom
o Responsibilities of parenting
 Legislative recognition of de facto relations:
o State and territory legislations (refer to slide 15 of lecture).
 NSW Relationships Register Act 2010 (NSW) – establishing a de facto relationship
under legislation.
 Property Relationships Act 1984 (NSW) – domestic relationship covers both de facto
and close personal relationships.
 Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008
o FLA applies to de facto relations in all ‘participating jurisdictions’ (all states
except WA).
 In order to come within the jurisdiction of courts under the FLA, a de facto couple
must satisfy three threshold requirements:
o Geographical requirement – the parties to the relationship, or one of them,
must be ordinarily resident in a participating jurisdiction when the proceedings
commence (ss 90RG, 90SD, 90SK and 90UA).
o Definitional requirement – the parties must have been in a de facto relationship
within the federal definition in s 4AA of the FLA.
o Threshold requirement – the parties’ relationship or the circumstances of the
case must be such as to satisfy the threshold requirements in s 90SB.
 Definition: s 4A of FLA
o S 4AA(1)  A person is in a de facto relationship with another person if:
 (a)  the persons are not legally married to each other; and
 (b)  the persons are not related by family (see subsection (6)); and
 (c) having regard to all the circumstances of their relationship, they
have a relationship as a couple living together on a genuine domestic
basis.
o S 4AA (2)
o Those circumstances may include any or all of the following:
 (a)  the duration of the relationship;
 (b)  the nature and extent of their common residence;
 (c) whether a sexual relationship exists;
 (d) the degree of financial dependence or interdependence, and any
arrangements for financial support, between them;
 (e) the ownership, use and acquisition of their property;
 (f) the degree of mutual commitment to a shared life;
 (g)  whether the relationship is or was registered under a prescribed
law of a State or Territory as a prescribed kind of relationship;
 (h)  the care and support of children;
 the reputation and public aspects of the relationship
 In order for court to make order under maintenance and property provisions, in
relation to a de facto relationship, must satisfy (s 90 SB):
o (a)  that the period, or the total of the periods, of the de facto relationship is at
least 2 years; or
o (b)  that there is a child of the de facto relationship; or
o (c)  that:
 (i)  the party to the de facto relationship who applies for the order or
declaration made substantial contributions of a kind mentioned in
paragraph 90SM(4)(a), (b) or (c); and
 (ii)  a failure to make the order or declaration would result in serious
injustice to the applicant; or
o (d)  that the relationship is or was registered under a prescribed law of a State
or Territory.
 S 90 RD – declaration of the existence of a de facto relationship.
 Cases:
o Moby & Schulter [2010] FamCA 748: the concept of “living together”
required if not all the time.
o Jonah v White [2011] FamCA 221: the key to the definition: “living together”
as a couple on a genuine domestic basis” – has to be more than physical and
emotional attachment.
Tutorial Questions

1. What difference would it make in treating marriage as a family unit based on

dependency or as a contract?
 It would afford women more rights and address power inequalities inherent within a
marriage.

2. Why should nullity of marriage be available? Why not only divorce?


3. Why is the recognition of same-sex marriage a cause for celebration? Why might
it be criticized for not doing enough? In your answer consider the Marriage
Amendment (Definition and Religious Freedoms) Act 2017 (Cth).
 Because it is something that should have happened a lot time ago and it affords same
sex couples their basic rights. It is a huge step for them in terms of their legal
recognition.
 Provisions where celebrants can refuse marriage on their religious grounds is
discriminatory.
 Dependency provisions on same-sex couples.

4. What are the main arguments for and against equating de facto relationships with
marriage? Which position do you agree with?
5. Consider the law on de facto relations discussed in the materials. Does the law
make any meaningful distinction between the nature of marriage and de facto
relationships? Could the criteria for a de facto relationship be different?   
Week 4 (1) – Divorce

1. History and Theory

 Marriage was originally seen as a ceremony for the ‘richer’ classes of society.
 Divorce was seen as blaming the other for wrongs.
 In catholic church, it was not possible to divorce  only annulment.
 By 20th century, fault-based divorce was becoming outdated as more liberal attitudes
towards relationships brought in trend of no-fault divorce.
1.2. Fault Divorce
 Arguments for: Marriage is like a business partnership – it is an institution of trust that
enables two persons to have the confidence to make long term investments in their
relationship – idea of fault is central to the notion of marriage as a commitment – fault
based divorce protects those who fulfill their obligations.
 Arguments against no fault divorce: no evidence that no fault divorce leads to increase
in the rate of marriage breakdown; or leads to unjust property or alimony decisions.

2. FLA Provisions for Divorce

 Section 48: Divorce
o (1)  An application under this Act for a divorce order in relation to a marriage
shall be based on the ground that the marriage has broken down irretrievably.
o (2)  Subject to subsection (3), in a proceeding instituted by such an
application, the ground shall be held to have been established, and the divorce
order shall be made, if, and only if, the court is satisfied that the parties
separated and thereafter lived separately and apart for a continuous period of
not less than 12 months immediately preceding the date of the filing of the
application for the divorce order.
o (3) A divorce order shall not be made if the court is satisfied that there is a
reasonable likelihood of cohabitation being resumed.
 Section 49: Meaning of separation
o (1)  The parties to a marriage may be held to have separated notwithstanding
that the cohabitation was brought to an end by the action or conduct of only
one of the parties.
o (2) The parties to a marriage may be held to have separated and to have lived
separately and apart notwithstanding that they have continued to reside in the
same residence or that either party has performed some household services to
the other.

3. What Constitutes Separation

 Three elements:
o Intention
o Action
o Communication
  Separation involves at least two elements, namely an intention on the part of at least
one party to a marriage to sever the matrimonial relationship, and action upon this
intention (In the Marriage of Todd (No 2)).
 Third element of communication of intention to separate (In the Marriage of Falk).

4. Proving Separation
 Under s 49(2), physical separation neither a necessary nor sufficient condition.
 Separation under one roof.
 Reality of hard to divide into two homes during this time.
 Look for 3 factors: separation, living separately and apart, and no substantial
resumption of cohabitation.
 Separation is a departure from a state of things rather than from a particular place.
 Establishing separation is a question of fact.
 We adopt the view expressed in Todd’s Case that: “When it is asserted that a
separation has taken place it may be necessary to examine and contrast the state of
the marital relationship before and after the alleged separation. Whether there has
been a separation will be a question of fact to be determined in each case”.
 Residing together for the sake of the children – note difference between staying
together and residing together

5. Divorce Provisions: Support the Institution of Marriage?

 S 43: Principles to be applied by courts
o (1) The Family Court shall, in the exercise of its jurisdiction under this Act,
and any other court exercising jurisdiction under this Act shall, in the exercise
of that jurisdiction, have regard to:
 (a) the need to preserve and protect the institution of marriage as the
union of 2 people 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;
 (ca) the need to ensure protection from family violence; 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.
o (2) Paragraph (1)(a) does not apply in relation to the exercise of jurisdiction
conferred or invested by Division 2.
 S 44(1B): Marriage of less than two years
o An application for divorce shall not, except with the leave of the court under s
44(1C) be filed within two years of the date of marriage without an
accompanying certificate stating that the parties have considered
reconciliation with the assistance of a appropriate counsellor or organisation
o Parties must seek counselling and consider reconciliation AND must present
the certificate to the court
 o In the Marriage of Kelada (1984) – parties considered reconciliation but did
not file a certificate – not exceptional circumstances to bypass the provision.
 S 50: one chance of reconciliation – resume cohabitation for no more than three
months
o If unsuccessful , the period before and after this effort at reconciliation will be
counted together for the 12 month separation.
o Separation must continue up to the date of filing an application for divorce.
o Compare with s 48(3) – no divorce order if cohabitation has resumed.
 S 55: children are provided for
o Only concerns children of marriages, not children of de facto relationships.
o In the Marriage of A & BV Maunder (1999) 25 Fam LR 579 the FFC held:
 s 55A is mandatory. It is a manifestation of the policy that parties to a
divorce have a responsibility to make appropriate arrangements for the
welfare of children
 The section is a way of balancing the rights of parents to separate and
lead independent lives with the need to ensure that best circumstances
can be created for children
 The section is created to protect children who are the innocent
victims of the breakdown of marriage of their parents.
 Procedural issues for filing an application for divorce:
o s 39 Jurisdiction in matrimonial causes to the Family Court and the Supreme
Court of a State or Territory
o Practice Direction No 6 of 2003, all divorce applications are to be instituted in
the FCC (now FCFC)
o s 39(3) Connection to the jurisdiction in divorce proceedings -
citizen/domicile/ordinarily resident for twelve months prior to filing of
application
o s 44(1A) Application by either or both parties to a marriage
o s 55(1) A divorce order takes effect automatically one month after the court’s
order.
o s 57 Parties can apply to get the order rescinded within one month of the order
being made.
o s 58 court can rescind order if miscarriage of justice.

6. Ending a De-Facto Relationship

 Issue before the court is NOT whether the relationship has broken down
 The relevant Q is when the relationship ended if FLA Part VIIIAB (financial matters)
is to apply
 Date relevant in the following instances:
o FLA will apply if the relationship broke down after 1 March 2009 or after I
July 2010 in SA
o FLA applies in case of property or maintenance applications that are brought
within 2 years of the relationship ending (special permission can be given by
court to apply out of time)
o Date when the relationship ended is relevant also in computing the duration of
the relationship – duration relevant in determining whether a relevant de facto
relationship existed which is relevant to meet the threshold requirement under
s 90SB and in making orders for alteration of property interests or maintenance
under ss 90SM and 90SE.
 Smyth v Pappas [2011] FamCA 434
 o ‘indications’ that a relationship has ended once the parties are no longer living
together will not be sufficient to show that a relationship has broken down …
the ending of relationship must have a permanence about it rather than a
temporary suspension.

Week 4 (2) – Domestic Violence

1. Prevalence of Violence
 The vast majority of perpetrators are men. And the vast majority of victims are
women.
 Men do not experience violence on pandemic levels nor as a result of gender
inequality.
 Men largely experience violence at the hands of other men and most likely in a public
place.

2. Causes of Violence
 Myths and disbeliefs make it hard to report
o Sexist victim-blaming – she deserved it; women are liars - she made it up (note
focus rarely on the fact men may lie)
 Why doesn’t she just leave?
o Violence escalates if she does/lack of services
 Violence caused by stress and poverty and unemployment
o No – caused by gender inequality - marked by power inequality
o social norms supportive of traditional gender roles, intimate partner violence
and sexual violence, and macho male gender roles
 Violence caused by poor anger management, bad upbringing, substance abuse
o No – not all men who experience these things are violent
 Violence is a choice men make
 Violence against women, including family violence, is driven by three key factors\
o the unequal distribution of power and resources between men and women –
gender inequality;
o an adherence to rigidly defined gender roles and identities; and
o attitudes and cultures that excuse violence or inequality.
 43% believe women going through custody battles often make up or exaggerate claims
of domestic violence in order to improve their case
 33% believe rape results from men not being able to control their need for sex
o Numbers have decreased but reveal much more needed to change attitudes in
Australia.

3. Effects of Violence
 On children:
o Mental and physical health (depression, anxiety, trauma, impaired cognitive
functioning; drug and alcohol abuse, eating disorders, suicide attempts).
 o Social effects (increased aggression/temperament problems; antisocial
behaviour; lower social competence; low self-esteem; school difficulties; peer
conflict; leaving school early, teenage pregnancy).
o Intergenerational violence v resilience of children
 On mothers
o Increased homelessness for women and children
o Effects of labelling/mandatory reporting: violence is child abuse but can have
effect of labelling mothers as perpetrators of violence
 On everyone
o Reduced productivity, welfare receipt, medical costs, unemployment and a
range of other factors.

4. Definition of Violence – FLA s 4AB

 (1) For the purposes of this Act, family violence means violent, threatening or other
behaviour by a person that coerces or controls a member of the person's family
(the family member ), or causes the family member to be fearful.
 Subsection (2) lists examples of behaviour causing one to be fearful.
 (3) For the purposes of this Act, a child is exposed to family violence if the child sees
or hears family violence or otherwise experiences the effects of family violence.

 Subsection (4) lists examples of situations that may constitute child exposure to
violence.

5. Legal Restraints on Domestic Violence

 There are various legal remedies available where domestic violence or molestation
actually occurs or is reasonably apprehended. These are:
o restraining orders under the Family Law Act 1975 (Cth);
o State domestic violence legislation;
o the equitable jurisdiction of State Supreme Courts to issue injunctions;
o State criminal legislation dealing with assault or apprehended assault; and
o damages for assault.

6. Personal Protection Orders Under FLA

 S 68B: Children – Injunctions 
 S 68C: power of arrest for breach of s 68B
 S 114: Married couples – injunctions
 S 114: De facto couples – orders such as injunctions
o Does not provide personal protection orders, must use state/territory laws

7. Financial Dependence and Violence

 Financial dependency of women exacerbates the problem of violence
 There is no right to property provided under the FLA – separate property regime
which can be altered only if it is just and equitable to make an order.
 Issues in cases involving violence:

o Family violence – homelessness

o Women leave property when they leave violent relationships

 o Violence makes it difficult to seek a property order

o Violence can lead to women settling for less

o The court system allows for the abusive party to continue the violence and
force unfair settlements (eg by hiding/disposing of property, thwarting child
support obligations, delaying proceedings to exhaust funds of target).

 Family Law Amendment (Family Violence & Other Measures) Act 2018 (Cth) –
inserted new s 45A for cases with no reasonable prospect of success.

 s 45A FLA, has replaced s 118 FLA in relation to the summary dismissal of
unmeritorious applications.

 The aims of the new provision are:

o "To clarify and modernise the powers of the court"; and

o To allow a court "to prevent the use of its court room as a tool for perpetrators
of family violence to perpetuate violence".

 The new s 45A(1) and (2) allow the court to make a summary decree in favour of one
party, in relation to the whole or part of a proceeding, if satisfied that a party has no
reasonable prospect of successfully:

o prosecuting the proceedings or part of the proceedings, or

o defending the proceedings or part of the proceedings.

 In determining whether a defence or proceeding has no reasonable prospect of success,

proceedings need not be hopeless or bound to fail (s 45A(3)).

 A court can, as under the previous s 118, “dismiss all or part of proceedings at any
stage if it is frivolous, vexatious or an abuse of process” (s 45A(4)).

8. Property Orders and Violence

 No express provision for violence to be taken into account in a property order  no
statutory sections within FLA that says violence needs to be taken into account in a
property dispute.
 In case law, there has been some weight given to violence in property disputes.
o “a course of violence conduct … significant adverse impact upon that party’s
contributions” (Kennon v Kennon 1997).
o Comment – negative contributions relates to behaviour of perpetrator =
imports notion of fault contra no-fault in the FLA.
 Adair & Adair and Anor [2018]
o Illustrates a number of issues women experiencing family violence in property
cases.

o The Court ordered that the wife be entitled to 100% of the parties’ property
pool. One of the key factors in this case was that the Court found that the
domestic violence suffered by the wife throughout the relationship made her
 contributions as a homemaker and parent more difficult, which resulted in a
greater distribution to her. The domestic violence was mostly in the nature of
financial abuse.

o Kennon adjustment was made based on the physical violence and controlling
behaviour – found to be exceptional circumstances which made it more
arduous for the wife to make contributions.

 Compare Farina & Lofts and Ors [2019]

o Involved a de facto relationship and no adjustment was made for the violence –
not seen as having an impact on her contributions

o NB The Court’s references to no-fault divorce and Kennon as an exception to

this where violence impacts on contributions – de factos are not marriages but
subject to same standards.

9. Child Disputes and Family Violence

 Concerns to address violence – wide definition: including assault, sexual assault or
other sexually abusive behaviour, stalking, emotional and psychological abuse, and
economic abuse
 Difficulties in addressing violence when it is treated as private and the exception (have
to report, prove, detect violence)
 FDR

o Inadequate risk assessment processes despite attempts at this

 Some are not being asked about violence, and when they are they do
not disclose

 No statutory requirement to assess for violence

 FDRPs must determine whether FDR is appropriate and to refer the

case to court if it isn’t, but they do not have to assess for violence

 Once a s60I certificate is issued there is no bridging services between

FDR and court

 Rise of FDR and costs of litigation make violence difficult to detect

and address esp in absence of services/litigation funding.

10. Violence and Parenting Orders

 Violence increasing concern in FLA:
o less adversarial trial
o Magellan program (for child sex abuse cases)
o court to take prompt action in cases of violence (s 67ZBB
o best practice principles to apply in cases of violence (s 67ZN)
o Conflict with rise of shared parental responsibility provisions (2006
amendments
 o Rebuttable presumption in favour of shared parental responsibility (s 61D)
o Can be rebutted in cases of violence (s 61DA(2)
 2006 concerns to promote contact with both parents at odds with
protect from violence provisions.
 2012 amendments – priority given to protect children from violence (s
60CC(2A))
 But has this been enough?
 Need to take a no tolerance approach to violence – no longer treated as the exception.

11. Single Entry Point?

 Note the enactment of the Family Law Amendment (Family Violence & Other
Measures) Act 2018 (Cth)
o (1) Courts can be given by regulation the same family law parenting
jurisdiction as exercised by the State and Territory courts of summary
jurisdiction. This change is particularly directed at courts exercising welfare
jurisdiction in relation to children - such as children's courts - which are not
always courts of summary jurisdiction.
o (2) The monetary limit on the jurisdiction of courts of summary jurisdiction to
hear contested family law property matters without the parties' consent can be
increased by regulation.

o (3) Courts may give short-form reasons for decisions relating to interim
parenting orders.

o (4) Family law courts have explicit and broader power to dismiss
unmeritorious application.

Tutorial Questions

1. Can it be argued that no-fault divorce actually supports the institution of marriage?
 Could argue the 12 month separation and 3 month cohabitation period allows couples
the opportunity to repair their relationship during this time and this could consequently
help preserve and protect the institution of marriage.
 Welfare of children – not being subject to a divorce.
 However, prolongs separation period of separation.
o Do we really need a one year separation?

2. Tom comes to you for advice. He and his wife Jane separated on 31 March 2009 when
Jane moved out of the matrimonial home. On 14 June 2009 she moved back in
response to his pleadings to ‘try and make a go of it for the sake of the children’. Jane
moved out again on 5 Oct 2009 saying the marriage was over. Tom and Jane have not
resumed cohabitation. When may Jan apply for divorce and why? 
 Jan may apply for divorce on 6 October 2010. (Pavey)
 She may apply because it satisfies section 48 (2) – living separately and apart for
continuous period of not less than 12 months.
 Because cohabitation period exceeded 3 month period, the 12 months separation
period restarts, and cannot be counted (s 50).
 They also tried to make the marriage work, but Jan confirmed it was officially over in
October, therefore showing the marriage has broken down irretrievably and no
likelihood of cohabitation being resumed (s 48(1)).
3. Considering Tom and Jane's case, is the one-year separation requirement for
obtaining a divorce appropriate? Is this requirement compatible with the ‘no fault’
divorce principle?
 Not really.
 Under the ‘no fault’ divorce principle, the divorce doesn’t require blame to be shifted.
Instead, the court requires the 12-month separation to see the marriage has
‘irretrievably broken down’. So, in a way, it is compatible.
 Gives time to show intention, action and communication.

4. How would a de facto couple establish separation? Should it be the same or different
to married couples?
 A de facto relationship is when two people, who may be of the same or opposite sex,
are not married but live together or have lived together as a couple on a genuine
domestic basis.
 You do not need to go through any formal process (such as applying for divorce) to
end a de facto relationship.
 If you do decide to separate, there is nothing that you need to do and no document you
need to sign to confirm that you and your partner are separated. You do not have to
apply to a court, or complete any formal documents to say you are separated, aside
from practical things such as notifying Centrelink and Medicare.
 In terms of getting the court to divide property obtained during a de facto relationship,
the courts can order a division of any property between de factos if they’re satisfied of
one of the following (s 90SB):
o The de facto relationship lasted at least two years
o The two of you had a child
o One party made substantial financial or non-financial contributions and serious
injustice would result if the order to split property wasn’t made
o The relationship is or was registered under a prescribed law of a state or
territory.
 I think it should be different considering the differences between processes when
registering marriage vs registering de facto relationship.

5. Is the FLA part of a system that normalises violence in family relationships? Discuss
with reference to no-fault divorce provisions underpinning the Pavey decision.
Compare with more recent decisions which make property adjustments for violent
behaviour (such as the recent decisions in Adair and Farina).

 In Marriage of Pavey (1976)

o H/W lived together for 30 yrs when W discovered H was having an affair. H
slept in lounge and W in matrimonial bed with lock. H forced himself into bed
and raped W. H then slept in matrimonial bed and W sleep in lounge. W got
$30/wk maintenance Ct order. They led separate social lives. W sometimes
cooked for H (convenience) but ate separately. W did H’s washing/ironing.
Didn’t speak and only communicate through their adult sons.
o Hearing divorce denied – period of separation FAIL.
o Appeal: divorce given ! W got Ct order for maintenance  evidence that H
failed in his duty to W (mutual society and protection)  contrast state of
relationship before and after alleged separation BUT
be clear r’ship ended and explain WHY you continue to share residence.
  I don’t think FLA normalizes violence, however the requirement for 12 months
separation can often put a lot of strain on individuals in a marriage especially if the
wife has depended on the husband for financial aid and moving out on their own
seems impossible. Thus, it forces couples to remain together for this “awkward”
period if living in separate homes is not realistic, and violent behaviors may occur
during this stressful period.
 In the recent decision of Adair & Adair and Anor the Court ordered that the wife be
entitled to 100% of the parties’ property pool. One of the key factors in this case was
that the Court found that the domestic violence suffered by the wife throughout the
relationship made her contributions as a homemaker and parent more difficult, which
resulted in a greater distribution to her. The domestic violence was mostly in the
nature of financial abuse.
 Farina & Lofts
o The reference to the ‘Kennon’ principles is a short hand reference to the
principles identified by the Full Court in the 1997 case of Kennon & Kennon
namely: Put shortly, our view is that where there is a course of violent conduct
by one party towards the other during the marriage which is demonstrated o
have had a significant adverse impact upon that party's contributions to the
marriage, or, put the other way, to have made his or her contributions
significantly more arduous than they ought to have been, that is a fact which a
trial judge is entitled to take into account in assessing the parties' respective
contributions within s 79. We prefer this approach to the concept of 'negative
contributions' which is sometimes referred to in this discussion.
 Therefore, we can see that while the FLA may not take into account victims of
violence in regards to the 12 month separation rule, it assists victims of abuse with
claiming financial entitlements at the end of a marriage and during property division.

Week 5 – Financial Relations – Property Proceedings Under the FLA

1. Property Models
 Unitary system
 o Preserve patriarchal marriage.
 Separate property
o Recognise formal equality of the parties.
 Adjustment by judicial discretion
o Recognise the cost of relationship breakdown on dependent spouse and
children.
 Community property – shared during the relationship
o Recognise marriage as a joint enterprise; equality during and after marriage.
 Deferred community – shared when relationship comes to an end
o Recognise equality of parties after marriage.

2. No Fault Divorce and Related Financial Reforms

 No fault divorce reformers proceeded on two assumptions:
o (1) That the economic condition of homemakers and children would be
adequate after marriage dissolution.
 Former homemakers would be able either to earn substantially or to
remarry;
 Child support would aid those who continued as caretakers; and
 The share of property based on contribution usually would sufficiently
cover other needs.
o (2) The second assumption was that after most dissolutions all parties would
benefit most by a “clean break”, with no continuing economic ties between
them.
 Based on understanding f marriage that no longer a union based on
dependencies but an understanding of the parties as autonomous and
equal.

3. Separate Property/Adjustments by Judicial Discretion Under FLA

 FLA expresses the values of gender equality and marriage as a partnership doing
different kinds of work while acknowledging sexual division of labour in nuclear
family  still dependencies in a relationship.
 Financial impacts = decline in household income and increased reliance on social
welfare benefits more likely to be experienced by women (with children) rather than
men after separation.
 Why distribute property?
o Divide property to compensate for contributions of care giving work usually
performed by women.
 Distribution based on contributions
 Given an economic value to non-economic contributions
o Divide property to compensate the ‘weaker’ spouse – adjust contributions with
future needs (property and maintenance issues combined_
o FLA MODEL – COMBINATION OF BOTH THESE RATIONALES.
 How to value contributions?
o Current approach – relative weight to contributions by judicial discretion.
o FLA s 79(4) a, b, c – court can make adjustments in relation to direct and
indirect financial contributions to property; non-financial contributions to
property; contributions to the welfare of family.
o Proposed approach – legislative formula recommended by ALRC 2019 Report
11 & 12
 (1) Ascertain the existing legal and equitable rights and interests and
liabilities, of the parties in their property;
  (2) Presume equality of contributions unless a statutory exception
applies; and then
 (3) determine what adjustment should be made in favour of either party
having regard to any matter that is relevant to the particular
circumstances of the parties, including:
 the caring responsibilities for any children of the relationship;
 the income earning capacity of each other the parties;
 the age and state of health of the parties; and
 the effect of any adjustment on the ability of a creditor of a
party to recover the creditor’s debt, so far as that effect is
relevant.

4. Arguments for/against Presumption of Equality of Contributions During the

Relationship
 Procedural argument – reduce cost, time and adversity.
 Reflects approach already taken in a lot of cases.
 Reflects marriage as a partnership of equals.
 Could disadvantage relationships who do not intend to share property.
 Judicial discretion – can provide a tailored approach to each individual relationship.
 Legislative formula – lead to increased dissatisfaction.

5. The Property Regime in Australian Family Law: FLA

 Part VIII of the Family Law Act 1975 (Cth) (FLA) provides for the division of the
property of parties to a marriage.
 Part VIIIAB for the division of the property of parties to de facto relationships.
 FLA s 4(1) Definition of matrimonial cause & s 8(1)(a) that a matrimonial cause can
only be instituted under the FLA; parallel provisions for defacto financial cause
 While the power to alter property rights is directed primarily at parties of marriages, it
extends to parties to void marriages (s 71).  
 Property proceedings can only be pursued if they are filed before one of the parties to
a marriage dies (s79(8)); s 90SM(8) for de facto couples).
 Clean break principle: the legislature intended the provisions to bring about an end
to the financial relationship of the parties, and certainty for the parties in the future (s
81: s 90ST for de facto relationships).
 Application for a property order:
o Parties have 12 months from the time the divorce order becomes absolute (s
44(3)).
o 2 years from the time de facto relationship ends (s 44(5)).
o This time limit can be extended if it would cause hardship to a party or a child
(s 44(6)).
 Where there is a dispute as to the ownership of property, the court has the power to
make declarations under s 78 of the Family Law Act 1975 (Cth). (s 90SL for de facto
relations)
 Court can refuse such a declaration if it is intended to prejudice third party interests
 Finality of orders
o Section 79A (s 90SN) of the Family Law Act 1975 (Cth) provides for
reconsideration of property orders only where there is consent of both parties
or in enumerated limited circumstances
5.1 Pre-action procedures in financial cases
 Family Law Rules (Cth) Rule 1.05 and Schedule 1
 Part 1 Financial cases (property settlement and maintenance)
  1 General
o (1) each prospective party to a case in the Family Court of Australia is required
to make a genuine effort to resolve the dispute before starting a case by
 (a) participating in dispute resolution such as negotiation, conciliation,
arbitration and counselling
 (b) exchanging a notice of intention to claim and exploring options for
settlement by correspondence; and
 (c) complying as far as possible with the duty of disclosure
o Note – cost consequences if failure to comply
 These rules apply to the Family Court but not the Federal Circuit Court;
 For FCC - Civil Dispute Resolution Act 2011 – similar parties required to take
genuine steps to resolve a civil dispute before court proceedings commenced
 Note – the rules will change for the new FCFC
 Compliance not necessary with Family Law Rules if
o Allegations of child abuse, family violence, fraud; application is urgent;
compliance would be unfair to the applicant; dispute is genuinely intractable;
there is another good reason for non-compliance.
 Different property provisions for marriages and de facto relations on slide 15 of Week
5 lecture.

6. Steps in De-Facto Relationship Property Cause

 Geographical requirement
 Definitional requirement s4AA
 Note threshold requirement s 90SB
o A court may make an order under section 90SE, 90SG or 90SM, or a
declaration under section 90SL (ie maintenance and property), in relation
to a de facto relationship only if the court is satisfied:
 (a)  that the period, or the total of the periods, of the de facto
relationship is at least 2 years; or
 (b)  that there is a child of the de facto relationship; or
 (c)  that:
 (i)  the party to the de facto relationship who applies for the
order or declaration made substantial contributions of a kind
mentioned in paragraph 90SM(4)(a), (b) or (c); and
 (ii)  a failure to make the order or declaration would result
in serious injustice to the applicant; or
 (d)  that the relationship is or was registered under a prescribed law
of a State or Territory.
6.1 Before Stanford v Stanford (2012)
 The next step in a property dispute would be for the Court to make an order under s
90SM (s 79) under the 4 step process:
o To identify and value the net property of the parties (usually as at the date of
trial);
o To consider the contributions of the parties within paragraphs (a)-(c) of s
79(4);
o To consider other s 79(4) factors including the s 75(2) factors; and
o To consider whether the proposed distribution is “just and equitable”.
6.2 After Stanford v Stanford
 More recently in Stanford & Stanford 247 CLR 108 the High Court found that before
making a s 79 order need to consider whether it is just and equitable to make the order,
rather than considering whether the order is just and equitable as a “fourth step”.
  Does this make s 90SB redundant in relation to de facto couples?

7. S79/90SM – Making a Property Order

 s 79(1) ‘[i]n property settlement proceedings, the court may make such order as it
considers appropriates 79 (1)) (s 90SM for de facto relations).
 S 79(2) Just and equitable requirement:
o the “court shall not make an order under this section unless it is satisfied that,
in all the circumstances, it is just and equitable to make the order” .
 Section 79(4) provides a list of seven factors that must be taken into account in
making an order:
o (a) the direct and indirect financial contributions of the parties to property
o (b) the non-financial contributions of the parties to property
o (c) contributions to the welfare of the family, including contributions as
homemaker or parent
o (d) the effect of any order on the parties’ income earning capacity
o (e) the list of considerations in s 75(2) of the FLA
o (f) any other order made under the FLA affecting a party or child of the
marriage
o (g) any child support payable, or likely to be paid in the future.
7.1 Effect of Stanford v Stanford
 Three propositions to determine whether just and equitable to make order:
o (1) Existing property interests are determined by ordinary common law and
equity principles, and it is by reference to these existing interests that the court
must be satisfied that it is just and equitable to make a property order.
o (2) The exercise of discretion under s 79 must be exercised without assuming
that the parties’ rights and interests in property should be different from those
that exist. In this respect, the Court observed that a community of property
ownership arising from marriage has no place in the common law. On this
basis it found that questions of ownership of property between husband and
wife must be decided according to the same rules which govern the property
rights of any two persons.
o (3) In making an order under s 79, a court must decide whether it is just and
equitable to make such an order. It is not to be decided on the assumption that
one or other party has a right for the property of the parties to be divided
between them by reference to the s 79(4) factors. If the court concludes what is
a ‘just and equitable’ property order only by reference to matters in s 79(4)
without a separate consideration of s 79(2), this would conflate the two
provisions and ignore the principles as laid down by the FLA
 No community of title – separate title – who has title to the property owns the property
– can only alter interests if just and equitable to do so
 According to legal and equitable principles (and principles in the FLA) that inform
whether it is just and equitable to make an alteration.
o HC – found s 43(1)(a) of the FLA an applicable principle – to protect the
institution of marriage
 NB - There is no similar principle to protect de facto relationships
 when a marriage ends so does the common use of the property by the parties. In
bringing the relationship to an end, ‘the express and implied assumptions that
underpinned the existing property arrangements have been brought to an end … And
the assumption that any adjustment to those interests could be effected consensually as
needed or desired is also brought to an end’ – it is just and equitable to make an order
in these circumstances
  Chapman & Chapman (2014) – if the parties do not raise the s 79(2) issue, the court
still needs to consider whether just and equitable to make order.
 Hearne & Hearne [2015] – considered whether order was just and equitable.
 Stanford – to give effect to the express and implied assumptions that underpinned the
existing property arrangements  these have been brought to an end when the
relationship ended  could be just and equitable to make an order.

8. Step One: Identifying and Valuing the Property

 First determine the nature and extent of the property of the parties
 The extent and value of the property of the parties will usually be considered as at the
date of the hearing.
 There is no distinction between “business” or “matrimonial” property, or other
categories.
 All property of the parties must be considered.
 While the date and manner of acquisition of property will be a relevant consideration,
the property must nonetheless be included in the court’s consideration regardless of
when it was acquired.
 Definition of “property” in s 4(1) of the FLA:
o “property”, in relation to the parties to a marriage or either of them, means
property to which those parties are, or that party is, as the case may be,
entitled, whether in possession or reversion.
 Property pool v asset by asset approach?
 Only property may be the subject of an order of a court.
 Sources of wealth not deemed as property will be treated as a financial resource as a
factor for adjustment of property interests under s 75(2).
 Financial resources cannot be split (like property interests) but can be taken into
account under s75(2) in adjusting the parties’ interests to the property that can be split.
 Examples of property:
o Inheritances 
o Lottery wins 
o Compensation claims and other litigation
o Superannuation
 Post 2008 – can’t use discretionary trusts to avoid the prevue of the family law act
(Kennon v Spry 2008).
8.1 Superannuation
 As from Dec 2002 superannuation has been treated as property under the FLA (In the
Marriage of Coghlan [2005] FLC 93-220 at 79,642) superannuation interest is NOT
property but another species of asset altogether, but can be dealt with under s 79)
 Before the change two of the most common approaches were:
o Treat as a financial resource: allow each party to retain their superannuation
and make an adjustment to account for superannuation as a financial resource,
pursuant to sec 75(2) (b) and (f) of the Family Law Act when making orders
for property settlement; or
o Postpone the decision: adjourn property settlement proceedings under sec
79(5) of the Family Law Act until the superannuation interests of one party
vests, with or without making an order for partial or interim property
settlement. When the superannuation entitlement vested, the matter would
return before the Court to finalize property settlement.
 Three ways of dealing with superannuation after 2002:
 o (1) A splitting order or agreement - superannuation interests may be divided
between the parties to a marriage in such proportion as agreed or determined
by the Court;
o  (2) A flagging order or agreement - in essence a "flag" will operate similarly
to an injunction and preserve the superannuation until it may be dealt with by
the Court, or by the parties pursuant to a superannuation agreement. The flag
also requires the trustee to notify the Court or the parties when the interest will
become payable;
o  (3) By an offset of superannuation against other assets – include
superannuation in the list of assets for division and account for it in the
property order.
o  Before the Court will make a determination on the treatment of
superannuation, it must determine the value of the interest 90MT(2).
8.2 How value of property is ascertained
 Valuations must be at the time of the decision.
 Starting point for most valuations is “fair market value”: evidence is needed to support
valuations.
 Where there is no market for the particular property, or where the market value would
be far less than the value of the property to the particular parties the court will base
value on their worth to the shareholder.
 Where a party’s estimate of the value of chattels is the only evidence before the court,
and unchallenged, it is open to a trial judge to rely upon that evidence.
 Where the trial judge is unable to determine the value of an asset, it may be
appropriate to order that it be sold Marriage of Phillips 2002.
 The Court expects the parties to make full and frank disclosures of their assets and
may look negatively upon a party who does not disclose all of his/her financial
circumstances.

9. Step Two: Ascertain Each Party’s Contributions

 Section 79(4) is divided into two broad limbs:
o The first limb, in s 79 (4)(a)-(c), is commonly referred to as the
“contribution” factors.
 Section 79(4))(b) mirrors s 79(4)(a) but deals with contributions other
than financial contributions.
 The contributions may be direct or indirect
 Still have to be to the acquisition, etc, of the property or otherwise in
relation to the property.
 The contribution may be to a property which one or both of the parties
had at one stage but which they no longer have
 The contribution may be made by or on behalf of a child
 The contribution may be made by or on behalf of a party.
 S 79(4)(c) includes contributions to the welfare of the family
 Childcare provided by the wife’s parents while she was at work
was not considered to be a contribution - AB v ZB (2003) FLC
93-140.
o The second limb, in s 79(4)(d)-(g), involves the ongoing needs of both of the
parties and the effect of any orders upon the parties and creditors; sometimes
described as the “future needs” factors.
9.1 Assessing and balancing of different kinds of contributions
 Comparison of the parties’ contributions: breadwinner v homemaker - Mallet v
Mallet (1984) 156 CLR 605
 o Married for 29 years
o Assets: Jointly owned ($240,000); owned by husband ($261,000); owned
by wife ($5,700); each owned 26% shares in family company = $86,996
each
o Trial J: Wife should receive one half of jointly owned property; value of
her shares; and 20% of property solely owned by husband
o Appeal to Fam Full Ct by wife
o Full Fam Ct: ‘a just and equitable result would be to adopt the 50% figure
overall’
o Appeal to HC by Husband
o Held: restore the judgment of the single judge
o “Equality should not be regarded as the starting point”  HC
o Nothing in legislation that says homemaker contributions and financial
contributions should be treated equally.
 HC has taken stance that what breadwinners do has a much more seical quality
than what homemakers do  special skills concept.
9.2 Special skills
 Ferraro and Ferraro (1992) 111FLR 124;
o At the time of marriage parties had no assets
o Married in 1963, separated in 1990
o W had applied an inheritance of $35,000 to the business conducted by H;
W devoted herself virtually entirely to the care of the home and children
o Trial J divided the property as 70% to H and 30% to W. He found that the
H acquired, improved and conserved the parties’ property almost without
assistance from the wife … marriage was one of traditional divided roles
and the wife’s contribution was limited in quantum and value.
o W appealed to Full Ct
o Full FamCA Held: Decision of the HC in Mallet meant that equality could
not be the starting presumption for a distribution order
o On a proper approach a conclusion of 30% share to the wife was outside a
legitimate exercise of discretion
o On balance the wife should receive 37.5% of the total property
 Cf Fields v Smith (2015) 53 Fam LR 1 1 – rejected special skills; applied 50%
split but did not endorse equality of contributions
9.2 Domestic violence
 In the Marriage of Sheedy [1979] FLC 90-719 – only if affects contributions
 Kennon and Kennon (1997) FLC 92-757 – if it makes contributions more arduous
o Put shortly, our view is that where there is a course of violent conduct by one
party towards the other during the marriage which is demonstrated to have
had a significant adverse impact upon that party’s contributions to the
marriage, or, put the other way, to have made his or her contributions
significantly more arduous than they ought to have been, that is a fact which a
trial judge is entitled to take into account in assessing the parties’ respective
contributions ... We prefer this approach to the concept of ‘negative
contributions’.
 A new tort of family violence  ALRC recommendations
o Provides a structured and consistent approach in property cases involving
violence – moves away from treating victims differently on the basis of the
value of the property pool
 o Statutory reversal of Kennon – no longer based on effects of violence on
contributions, but on the existence of violence
o Sends a message that violence is not acceptable
o May have therapeutic effects – empowering
o Will need added protections, greater judicial intervention to detect violence,
greater information sharing between police, courts, child welfare and health
authorities, and support and referral services.
9.3 Next step – future needs s 79(4)(d)-(g)
 The effect of the orders on the earning capacity of either party to a marriage (s
79(4)(d)).
 Any other order made under the Family Law Act 1975 (Cth) affecting a party to
the marriage or a child of the marriage (s 79(4)(f)).
 Any child support under the Child Support (Assessment) Act 1989 (Cth) that a
party to the marriage is to provide or has provided for a child of the marriage (s
79(4)(g)).

Tutorial Questions

1. What are the steps in making a property order? How have these been modified by
the Stanford decision?
Section 79(4) (which refers to alteration of property interests in matrimonial matters) is the
equivalent to section 90SM (which refers to alteration of property interests in de facto
property matters).
Before Stanford v Stanford (2012)
 12 months after divorce order.
 In a property dispute, for the Court to make an order under s 90SM (s 79) it would
follow the 4 step process:
o To identify and value the net property of the parties (usually as at the date of
trial);
o To consider the contributions of the parties within paragraphs (a)-(c) of s
79(4);
o To consider other s 79(4) factors including the s 75(2) factors; and
o To consider whether the proposed distribution is “just and equitable”.
After Stanford v Stanford
 More recently in Stanford & Stanford 247 CLR 108 the High Court found that before
making a s 79 order, they need to consider whether it is just and equitable to make the
order, rather than considering whether the order is just and equitable as a “fourth
step”.
 Go through fundamental principles to decide what is just and equitable.
o Guided judicial discretion
 Who owns the property, owns the property unless in equity, may be interest that alters
this right e.g. adding value to property.
 Intention to share property during relationship.
 Intention of party in Stanford – wills
 Stanford is asking the question at the beginning is it just and equitable to make an
order in the first place? Prior to this, that question was the fourth step.

2. Is the reasoning in Stanford easily applicable to de facto relationships?

Compare Chancellor v McCoy and Bonfils & Babin.
  Relying on principles stated by the High Court in the case of Stanford, in Chancellor
& Mccoy no property order was made by the Court. The Judge held that it was not just
and equitable to make a property settlement order due to the “lack of financial
intertwining, the lack of financial planning for the future, the evident separation of
finances and the continued individual ownership of property.”
 In Chancellor & Mccoy, no property order was made for the following reasons:
o The parties conducted their financial affairs separately and there was no
intermingling of finances (Ms Chancellor’s payments to Ms Mccoy while
living at his property were considered financial assistance not intermingling);
o They did not have joint bank accounts;
o Each party was free to use their money as they chose;
o Each party retained property in their own name;
o They were responsible for their own debts;
o They were not involved in each others financial decision making or made
aware of the others financial situation;
 Because court is not finding typical marriage relationship, not marriage-like enough,
hard to find in their favour.
 Bonfils & Babin – successful de facto property order relationship

3. When judges apply the doctrine of ‘special skills’ what assumptions are they making about
the value of different types of labour? 
 View breadwinners as having a higher skill set and bring more to the table. Whereas,
view homemakers as having less skill.
 Many recent cases have now criticised the “special contribution” doctrine on the basis
that the “homemaker” role is usually undervalued because it is not possible to
accurately compare the different roles of “breadwinner” and “homemaker”.  There is
no “level playing field” because you are comparing fundamentally different activities. 
A “breadwinner” contribution can be objectively assessed by reference to such things
as, that party’s employment record, income and the value of the assets acquired,
whereas an assessment of the quality of a “homemaker” contribution to the family is
vulnerable to subjective value judgments as to what constitutes a competent
homemaker and parent.

4. Even though 'special skills' is no longer a formally accepted concept, do you think the
family law provisions have adequately addressed the cultural connotations that value paid
work more than care giving work? Would inserting a presumption in equality of contributions
be an improvement?

 Comparison of the parties’ contributions: breadwinner v homemaker - Mallet v Mallet

(1984) 156 CLR 605
o “Equality should not be regarded as the starting point”  HC
o Nothing in legislation that says homemaker contributions and financial
contributions should be treated equally.
o HC has taken stance that what breadwinners do has a much more speical
quality than what homemakers do  special skills concept.
 Cf Fields v Smith (2015) 53 Fam LR 1 1 – rejected special skills; applied 50% split
but did not endorse equality of contributions.
 Submissions to the ALRC suggested that a legislated 50/50 starting point would
significantly reduce the complexity, length and legal costs of contested property cases.
It was also submitted that a 50/50 starting point would remove any “criticism by one
 party of the other about their supposedly inadequate contributions” which would help
to maintain workable relationships post separation
 It is however, often considered a strength of our current family law system that our
courts have the discretion to consider contributions on a case-by-case basis. The point
has been raised that if this particular ALRC recommendation is implemented, there is
a risk that it might result in such contributions being overlooked.

5.  Draft amending legislation for the property provisions in view of the prevalence of
violence in family relations.

 Sections 79 and 90SM do not specify domestic and family violence as a factor to be
taken into account by the court when considering an appropriate property order.
Rather, judicial officers are guided by case law.
 The leading authority is the 1997 decision, Marriage of Kennon [1997] in which the
majority stated that where there is a course of violent conduct by one party towards
another during the marriage which is demonstrated to have had a significant adverse
impact on that party’s contribution to the marriage, that is a fact which a trial judge is
entitled to take into account in assessing the parties’ respective contributions pursuant
to section 79. The court emphasised that this principle would only apply in exceptional
cases.
 It has been noted that the Kennon test sets a high threshold for recognition of domestic
and family violence in the context of property settlement proceedings as parties
alleging violence must prove, on the balance of probabilities, that the violence had a
discernible impact on their capacity to contribute to the marriage.
 Amendment to s 79(4)(h): In considering what order (if any) should be made under
this section in property settlement proceedings, the court shall take into account:
o The occurrence of any violence within the family and occurrence of any court
orders pertaining to violence (such as AVO) and how it has financially affected
the victims of violence.
Week 6 – Spousal Maintenance

Tutorial Questions

1.      What are the steps in spousal maintenance proceedings? 

 On balance of probabilities, need to be found:

o Ability to pay maintenance

2.      What is the relationship between a property order and an order for maintenance?
Should the two be distinct or not?

 Keeping both separate might address issues of spousal (woman) poverty post
marriage.

 Maintenance has more protective connotations compared to property order

3.      Should spousal maintenance be abolished? 

 Only if some requirements are met e.g. equality of incomes and contributions.

 Spousal maintenance perpetuates cycle of dependency.

4.     Section 72 of the FLA refers to the 'right of spouse to maintenance'? What is the scope of
this right? Discuss with reference to In the Marriage of Bevan  and Hall v Hall  (see below)?

5. Are you convinced by the High Court majority's reasoning in Hall v Hall? Or do you
prefer Gordon J's reasoning? Which do you prefer and why? 
Week 7 – Private Ordering in Property Proceedings

1. Definitions
 "financial agreement" means an agreement that is a financial agreement under
section 90B, 90C or 90D, but does not include an ante-nuptial or post-nuptial
settlement to which section 85A applies.
 "financial matters" means:
 (a)  in relation to the parties to a marriage--matters with respect to:
o (i)  the maintenance of one of the parties; or
o (ii)  the property of those parties or of either of them; or
o (iii)  the maintenance of children of the marriage; or
 (b)  in relation to the parties to a de facto relationship--any or all of the following
matters:
o (i)  the maintenance of one of the parties;
o (ii) the distribution of the property of the parties or of either of them;
o (iii) the distribution of any other financial resources of the parties or of either
of them.

2. Financial Agreements in FLA

 FLA’s preference for private ordering of financial relations:
o Increased certainty
o Cost effective;
o Individuals can look after their own affairs – autonomy; and
o Changing social expectations in relationships built on individualism and
choice.
 Reasons for entering into a financial agreement before marriage:
o clarifies initial and ongoing financial contributions of the parties
o forces parties to sort out priorities such as children versus employment
o promotes better communication in the long-term
o demonstrates that the parties have no secrets from each other
o avoids disputes as to the values of assets at the commencement of the
relationship or, at least, at the time of entering the agreement
o reduces potential stress
o gives greater certainty and control to the parties over their financial affairs than
s 79 (which gives considerable judicial discretion) can provide
o can accommodate cultural practices
o enables speedier resolution of financial matters at the end of a relationship.
 Reasons for NOT entering into a financial agreement:
o is a bad or negative start to a marriage, suggests a lack of trust in the other
partner or a lack of confidence in the marriage
o distracts from a religious commitment to permanent marriage
o removes the romance; encourages instability of marriages
o treats one party unfairly
o changes the nature of the dispute at the end of a relationship from an
adjustment of property interests under the FLA to a contractual dispute;
 resolving the contractual dispute could be more costly than if the matter had
been dealt with solely under Part VIII
o introduces the “morals of the market place” into an intimate relationship
supposed to be about love and giving.
 Advantages of financial agreements at the end of a marriage:
o no court appearance is required
o no approval is required by a court (compare to a consent order)
o a superannuation agreement can be incorporated (s 90MH)
o it can be used in conjunction with a consent order. Parties may wish to enter a
financial agreement with respect to certain aspects of their case only, such as
spousal maintenance or superannuation
o it takes effect from the date of signing. In the case of consent orders, parties
will need to obtain court approval before the orders can take effect which
could involve delays
o it can be used for an interim property settlement if parties do not wish to
finally determine their financial relationships until some time in the future.
 Problems:
o Issues of dependency are not accounted for in a regime based in contract.
o Making financial arrangements private hides the private costs of relationships.
o Inequalities are entrenched.
o The regime favours procedural but not substantive fairness.
o There are provisions enabling courts to scrutinize and easily overturn
agreements made by the parties. This is exhibited most strongly in instances
where the social welfare system is called upon to bear the partial cost of
marriage breakdown
o This argument is further strengthened by the operation of the provisions for
spousal maintenance (discussed in previous week) and child support (discussed
later) which allow courts to scrutinize maintenance arrangements when social
welfare payments are claimed – if it comes to a cost to the State, the agreement
won’t stand.
o Thus the cost of ongoing financial dependence is hidden behind the ideology
of autonomy but only if the parties bear the costs
o This in turn illustrates how the wider functions of family law include the
maintenance of nuclear family as a means of containing the costs of family
dependencies on the state

3. Introduction of Binding Financial Agreements in 2000

 Effect of a binding financial agreement is that the jurisdiction of courts under Part VIII
(Property, Spousal Maintenance and Maintenance Agreements) or under Part VIIIAB,
Div 2 (Maintenance, Declarations of Property Interests and Alteration of Property
Interests) is OUSTED
 The main message of family law that it ensures that the vulnerable partner is not
exploited and gets a share of property is wiped clean by the possibility that the parties
can opt out of the FLA jurisdiction.
 This illustrates how the ideas of individual autonomy and private ordering are
endorsed in a law that was meant to provide for the dependencies related to care
giving roles.
 Legal requirements:
o Family Law Amendment Act 2000 inserted a new Part VIIIA into the FLA
(Part VIII AB from 1 March 2009 for de facto relations)
 o Part VIIIB of the Act, says financial agreements may also make provision to
split or otherwise affect superannuation entitlements
o Provisions allow for the making of enforceable agreements which oust the
jurisdiction of the Court in relation to property and maintenance
o They replace s 87 of the FLA which allowed for a similar result but only where
the agreement was approved by the Court.
o Also replace s 86 agreements which allowed for private agreements to be
registered with the Court but without scrutiny by the court and did not oust the
jurisdiction of the ct/FLA.
 Contents:
o How all or any property and financial resources is to be “dealt with” (ss 90B(2)
(a), 90C(2)(a), 90D(2)(a))
o Spousal maintenance during and/or after divorce (ss 90B(2)(b), 90C(2)(b),
90D(2)(b))
o Matters “incidental or ancillary to” the above matters (ss 90B(3), 90C(3),
90D(3))
o ‘Other Matters’ - Matters of child maintenance (s 90B(3)b)

4. Financial Agreements: Who May Enter

 Financial agreements can be entered into by couples who are
o intending to marry (s 90B)
o are married but not separated (s 90C)
o are married and separated but not divorced (s 90C)
o are divorced (s 90D).
 Termination agreements can also be made (s 90J)
 Third parties can now be a party to an agreement as a result of the FLA Amendments
that commenced on 1 March 2009.

5. Current Requirements for a BFA – s 90G(1)

 S 90G(1): subject to subsection (1A) a financial agreement is binding on the parties to
the agreement, if and only if four formal requirements are met:
o Signed by ALL parties
o Each party to obtain independent legal advice before signing (effects on rights
and disadv/adv of agreement)
o Each party is provided a signed statement by the legal practitioner that required
advice was provided
o A copy of the statement signed by the legal practitioner to be given to the other
party/ their legal practitioner
o The agreement has not been terminated and has not been set aside by a court.
 Where the provisions of the FLA do not apply, the agreement has the effect according
to the ordinary law of contract - ASIC v Rich [2003] FLC 93-171.
 Black and Black – all requirements of s90G(1) were not met but trial judge found a
BFA still existed. Appealed to HC, lack of legal advice found agremenet was not
binding.
 Amendment after Black and Black The Federal Justice System Amendment (Efficiency
Measures) Act (No 1) 2009 (Cth)introduced s 90G(1A)  promotes autonomy not
dependency
 S 90G(1A): Court has power to declare that the agreement is binding
o (a) provided it is signed by all the parties and
 o (b) even if one or more of the formal requirements (in paragraphs (1)(b),
(c) and (ca) are not met (ie legal practitioners advice (disadv and adv)
provided; certification; and exchange of certified copy) , and
o (c) Court satisfied that it would be unjust and inequitable if the agreement was
not binding, and
o (d) Court makes an order under subsection (1B) declaring the agreement is
binding on the parties, and
o (e) The agreement has not been terminated/set aside by a court.

6. Understanding What is “Just and Equitable” Under s 90G(1A)(c)

 c)  a court is satisfied that it would be unjust and inequitable if the agreement were not
binding on the spouse parties to the agreement (disregarding any changes in
circumstances from the time the agreement was made);
 Parker v Parker (2010) FamCA 664
o W wanted to set aside agreement claiming agreement was unjust and
inequitable and lawyer had not advised her of this
o Trial judge agreed – H appealed and was successful
o Focus not on whether agreement is just and equitable but whether it is unjust
and inequitable if the agreement was not binding on the parties.
o Judges focused on different things to reach this result.

7. Alternatives to Binding Financial Agreements

 Consent orders for property and/or spousal maintenance (s 79/90SM & s 72/90SF(3))
 Ante-nuptial and post-nuptial settlements to which s 85A applies (s 4(1), 85A(3))
 Other agreements, which do not meet the requirements of Part VIIIA (ss 90G; or 90B,
90C, 90D) not a financial agreement
 Advantages of s 79 consent orders:
o legal advice requirements are less detailed and comprehensive than for
financial agreements. It is not a requirement that parties have received
independent legal advice
o parties and legal practitioners have the added security of knowing that their
“agreement” has been approved by the court
o clear enforcement procedures are available in the event that an order is
breached.
 Disadvantages are:
o Less ability to restrict future maintenance claims
o Less privacy
o Less flexibility to have settlements which are NOT just and equitable
o Less flexibility to value and/or split superannuation other than as set out in the
FLA and the Family Law (Superannuation) Regulations.
 Agreements which do not meet the requirements of Part VIIIA or Part VIIIAB (ss
90G; or 90B, 90C, 90D) not considered a financial agreement:Unless it is validated
under s 90G(1A)/90UJ(1A)
 If it is not validated there are three possibilities for the effect of such an agreement:
o the agreement is followed in its entirety
o the agreement is totally ignored
o the agreement is considered by the court along with other evidence.
 Further restriction (s 90F):
 o No provision of a financial agreement excludes or limits the power of a court
to make an order in relation to the maintenance of a party to a marriage if
subsection (IA) applies.
o (1A) This subsection applies if the court is satisfied that, when the agreement
came into effect, the circumstances of the party were such that, taking into
account the terms and effect of the agreement, the party was unable to support
himself or herself without an income tested pension, allowance or benefit
o The ability of the party to support themselves assessed at the time the
agreement takes effect and not at the time it was made.
o Provisions of a Financial Agreement come into effect ONLY when the
marriage breakdowns s 90DB(2).

8. Child Support
 Child support is not specifically referred to as a matter that can be covered by financial
agreements but may be covered under ‘other matters’ for married couples (since 21
Nov 2008) in ss 90B, 90C and 90D)
 For de facto couples ‘matters incidental or ancillary’ cover child support (ss 90UB,
90UC and 90UD, 90UH)
 If child support is included in a financial agreement it MUST also be a binding child
support agreement under the CS(Assessment) A 1989

9. Separation Declaration (90DA)

 a written declaration that complies with s 90MP (s 90MP(1)) (Superannuation
Agreements)
 a written declaration that complies with s 90DA(2)-(5) (Financial Agreements)
 Section 90DA separation declarations
o The financial agreement will be of no force or effect until a separation
declaration is made.
o The separation declaration must be signed by at least one of the parties to the
financial agreement, and must state that:
o the parties have separated and are living separately and apart at the declaration
time in the opinion of the parties making the declaration, there is no reasonable
likelihood of cohabitation being resumed.
o If a financial agreement is made when parties have already separated the
separation declaration can be included in this agreement.

10. Superannuation Agreements

 A superannuation agreement must identify the superannuation interest that is being
dealt with.
 Interest may be vested, prospective, contingent or an expectancy.
 Generally parties may agree to split the superannuation interest in two ways:
o Specify that the division is by a particular percentage
o Specify a particular sum to be a ‘base amount’ to be paid or the method of
determining a base amount – a base amount is the sum that is to be paid to a
recipient, subject to an adjustment in accordance with the superannuation
regulations.
 Superannuation agreement is not separate from a financial agreement – it is the part of
financial agreement that deals with superannuation and is subject to the provisions of
Part VIIIB.
  The terms of a superannuation agreement are binding on the trustee of the
superannuation fund - ss. 90MD, 90MDA.

11. Ending or Avoiding a Financial Agreement

 Situations where a financial agreement ceases to be effective:
o (i)the parties enter into a termination agreement under s 90J
o (ii) the parties include in another financial agreement a clause that terminates
the previous financial agreement (s 90B(4), 90C(4) or 90D(4))
o (iii) financial agreement is set aside on one of the grounds listed in s 90K(1)
 Court powers upon termination of a financial agreement:
If parties terminate a financial agreement without entering into another such
agreement the court has the power to make such orders as it considers just and
equitable in order to preserve or adjust the rights of the parties to the agreement and of
any other interested person s 90J(3)/90UL(3)
 A court may, under s 90K(1), order that a financial agreement or a termination
agreement be set aside: “if, and only if”, the court is satisfied that:
o the agreement was obtained by fraud (including non-disclosure of a material
matter); or
o either party to the agreement entered into the agreement:
 for the purpose, or for purposes that included the purpose, of defrauding
or defeating a creditor or creditors of the party; or
 with reckless disregard of the interests of a creditor or creditors of the
party; or
o the agreement is void, voidable or unenforceable; or
o in the circumstances that have arisen since the agreement was made it is
impracticable for the agreement or a part of the agreement to be carried out; or
…… (more in legislation)
 Thorne v Kennedy (2017) 263 CLR 85
o Wife sort to set aside agreements under ss 90K and 90 KA
o Trial judge found duress borne out of inequality of power
o Full Court allowed appeal
o Appeal to High Court – found undue influence/unconscionable conduct.
o The message: the safest way to ensure a financial agreement is binding the
terms of the agreement to result in a fair outcome for the less wealthy party.

Tutorial Questions

1. List the advantages and disadvantages of binding financial agreements. Which arguments do you
find the most compelling? Why?
 Growing desire for individuals to “protect their wealth”.
 Disadvantages:
o Doesn’t protect vulnerable party – homemaker role.

o BFAs not able to properly cater to every event that may arise in a relationship i.e.
children during a relationship, claims of duress.

o Makes private relationship more public.

2. The availability of binding financial agreements in ousting the jurisdiction of the FLA represents the
increasing privatisation of family. What is the understanding of family relations underpinning the
availability of binding financial agreements? Are they suitable for all types of families?
 Non-nuclear family.
3. Describe the judicial and legislative responses to the issue of eliminating the role of the courts in
overseeing property proceedings. How would you explain the conflict between them in terms of how
they perceive the role of law in family law?
 Judiciary more oriented to protect best interests of parties involved. Whereas, legislator more
so just gives the right for parties to undertake an action.
 Tension between protecting autonomy and protecting vulnerability

Week 8 – Child Related Disputes

1. Concept of Childhood
 Shulamith Firestone talks about the myth of childhood
o Medieval view of children – miniature adults.
o No special vocabulary to describe them.
o Children differed socially from adults only in their economic dependence.
o The modern school as the institution that built the abstract concept of childhood into
reality.
 Childhood and schooling
o Supporters of the school were the first espousers of the weakness and "innocence" of
childhood; put childhood on a pedestal just as femininity had been put on a pedestal
o Preached the segregation of children from the adult world.
o "Discipline" was the keynote to modern schooling more than learning or education.
o This segregation of child from adult indicated a growing disrespect for, a systematic
underestimation of, the abilities of the child.
o Schools as disciplining institutions became necessary to keep children under the
jurisdiction of parents for as long as possible.
o Segregation reinforces oppression of children even today – their physical and
economic dependence structured by laws and policies.
 Ideology of childhood
o The ideology of childhood is used to construct children as vulnerable and in need of
protection.
o Family law has assumed an ever greater role as the guardian of children’s welfare and
rights.
o In this role the law constructs children as vulnerable and parents cannot always be
trusted to safeguard the best interests of the child.
 Legal concept of child (Maidment 1984)
o 18th C created the concept of childhood, 19th C created the welfare principle, 20th C
saw almost all aspects of a child’s life subject to some law, usually in pursuance of
their welfare.
o Maidment shows the connections between the possibility of Divorce, increasing
rights of wife, and the development of the concept of ‘welfare of the child’ as a
guiding principle in law.
o no doubt that the Guardianship of Infants Act 1925 (Imp), first legislation to
incorporate the welfare of the child principle, owes more to the fight of women for
 joint guardianship over their children during marriage, than to any child protection
philosophy.
 Welfare principle
o ‘Welfare of the child’ is an indeterminate standard for judicial interpretation of the
needs of children.
o Welfare principle, ostensibly child centered, has also been and probably always will
be a code for decisions based on religious, moral, social and perhaps now social
science based beliefs about childrearing - it gives judges discretion – also scope to
respond to social change by vesting discretion in them.
o The centrality of the child's welfare in divorce and custody decisions as understood
nowadays continues the child protection tradition of the nineteenth century.
o The concern for the interests and wellbeing of children of broken marriages is held out
as justification for far reaching intervention in private family lives.

2. Parenting Orders Under the FLA

 Decisions in cases involving disputes about who will make decisions about the child (parental
responsibility) and where children should live and how much time they should spend with
each parent (or other significant adults in their lives) are made pursuant to Pt VII of the
Family Law Act 1975 (Cth)
 Early history of FLA- tried to cover all children but constitutional challenges invalidated rules
for ex-nuptial children – subsequent referral of powers by all states(except WA) and territories
to the Commonwealth Parliament over all children.
 Two exceptions: Adoption and Child Welfare Laws – continue to be under different state and
territory laws.
 Paramount principle under s 60CA – ‘In deciding whether to make a particular parenting order
in relation to a child, a court must regard the best interests of the child as the paramount
consideration’.

3. Changes in 1995 and 2006

 1995 amendments:
o Original concept of welfare of the child, replaced by the concept of best interests of
the child
o Wide discretion to the courts with regard to custody and access, morphed into wide
discretion with regard to residence and contact (now who they will live with or spend
time with);
o Guardianship/custody and parental rights changed to parental responsibilities (shift
focus away from parental rights)
 2006 amendments:
o Introduced a rebuttable presumption that it is in the BIC that both parents share
equal parental responsibility for the child after separation (ESPR).
 Concept of parental responsibility
o “parental responsibility, in relation to a child, means all the duties, powers,
responsibilities and authority which, by law, parents have in relation to children (s
61B).
o NB parental responsibility in law relates to parental decision-making about the child
and is distinct from time parents spend with the child.
 "major long-term issues" , in relation to a child, means issues about the care, welfare and
development of the child of a long-term nature and includes (but is not limited to) issues of
that nature about:
o (a)  the child's education (both current and future); and
o (b)  the child's religious and cultural upbringing; and
o (c)  the child's health; and
o (d)  the child's name; and
o (e)  changes to the child's living arrangements that make it significantly more difficult
for the child to spend time with a parent.
  To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is
not, of itself, a major long-term issue in relation to the child. However, the decision will
involve a major long-term issue if, for example, the relationship with the new partner
involves the parent moving to another area and the move will make it significantly more
difficult for the child to spend time with the other parent.

4. Steps in Making a Parenting Order: Goode v Goode

The amendments to Pt VII have the following effect:
 (1) Unless the court makes an order changing the statutory conferral of joint parental
responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has
parental responsibility for the child.
 [In relation to Indigenous children, in identifying a person or persons who have exercised, or
who may exercise, parental responsibility, the court must have regard to any kinship
obligations, and child-rearing practices, of the child’s Aboriginal or Torres Strait Islander
culture (s 61F)]
 (2) The making of a parenting order triggers the application of a presumption that it is in the
best interests of the child for each of the child’s parents to have equal shared parental
responsibility (s 61DA(1)).
 That presumption must be applied unless there are reasonable grounds to believe that a parent
or a person who lives with a parent has engaged in abuse of the child or family violence (s
61DA(2)).
 (3) If it is appropriate to apply the presumption, it is to be applied in relation to both final and
interim orders unless, in the case of the making of an interim order, the court considers it
would not be appropriate in the circumstances to apply it (s 61DA(3)).
 (4) The presumption may be rebutted where the court is satisfied that the application of a
presumption of equal shared parental responsibility would conflict with the best interests of
the child (s 61DA(4)).
 (5) When the presumption is applied, the first thing the court must do is to consider making an
order if it is consistent with the best interests of the child and reasonably practicable for the
child to spend equal time with each of the parents (s 65DAA(1)).
 If equal time is not in the interests of the child or reasonably practicable the court must go on
to consider making an order if it is consistent with the best interests of the child and
reasonably practicable for the child to spend substantial and significant time with each of the
parents (s 65DAA(2))
 (6) Where neither concept of equal time nor substantial and significant time delivers an
outcome that promotes the child’s best interests, then the issue is at large and to be determined
in accordance with the child’s best interests.
 (7) The child’s best interests are ascertained by a consideration of the objects and principles in
s 60B and the primary and additional considerations in s 60CC.
 (8) When the presumption of equal shared parental responsibility is not applied, the court is at
large to consider what arrangements will best promote the child’s best interests
 (9) The child’s best interests remain the overriding consideration.

5. Determining the Best Interests of the Child

 Shared parental responsibility is presumed to be in the best interests of the child.
 If the presumption applies
o Court to consider equal time or substantial time
 If the Presumption is rebutted it does not apply:
o Court is to make an order that is in the best interests of the child
 If the presumption of shared parental responsibility applies (AND is not rebutted)
o the court must consider making an order that the child spend equal time with both
parents (or substantial and significant time) - subject to an assessment of the child’s
best interests and a reasonable practicality test.
o Does not automatically mean equal time.
 MRR & GR (2010) 42 Fam LR 531
 o HC held that a positive finding on both the ‘best interests” and “reasonable
practicality” test is required before an order for equal time can be considered
o Presumption of shared parental responsibility may apply yet the court may not order
equal time with each parent.
 Determining the best interests of the child is done by reference to ss 60B and 60CC:
o If the presumption does apply, the Court must consider whether equal time or
substantial/significant time is in the best interests of the child (s 65DAA(1) and (2))
o BUT - The presumption can be rebutted if not in the best interests of the child (s
61DA(4))
o If the presumption does not apply:
 The Court has wide discretion to make an order that is in the best interests of
the child – see s 64B discussed slides 14 and 15
 This order can include who has parental responsibility for the child eg
whether there might be some decisions made solely by one parent and others
made solely by the other parent – or whether only one parent has sole
decision-making
 This order also can include where the child will live and time they will spend
with each parent eg whether a child spends most of the time with one parent
and has unsupervised or supervised contact with the other parent – or no
contact with the parent.
 Determining the best interests of the child:
o Objects and principles of Part VII – s 60B: to ensure that the best interests of children
are met by:
 (a) ensuring that children have the benefit of both of their parents having a
meaningful involvement in their lives, to the maximum extent consistent with
the best interests of the child; and
 (b) protecting children from physical or psychological harm from being
subjected, or exposed to, abuse, neglect or family violence, and
 (c) ensuring that children receive adequate and proper parenting to help them
achieve their full potential; and
 (d) ensuring that parents fulfill their duties and meet their responsibilities,
concerning the care, welfare and development of their children
o The principles underlying these objects are s 60B(2): (except when it is or would be
contrary to a child’s best interests):
 children have a right to know and be cared for by both their parents … and
 children have a right to spend time on a regular basis with, and communicate
on a regular basis with, both their parents and other people significant to their
care, welfare and development (such as grandparents and other relatives);
 parents jointly 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; and
 (e) children have a right to enjoy their culture.
o S 60B(3): The rights of Aboriginal and Torres Strait Islander children to access,
explore and appreciate their particular cultures is a clearly, and distinctly, articulated
principle of the Act
o s 60CC(2) Primary Considerations
 The benefit to the children in having a meaningful relationship with both
parents s 60CC(2)(a)
 The need to keep the child safe from harm, and from being the victim of or
exposed to abuse or family violence - s 60CC(2)(b)
o s 60CC(2A) THE COURT IS REQUIRED TO GIVE GREATER WEIGHT TO THE
NEED TO KEEP THE CHILD SAFE FROM HARM, ABUSE OR FAMILY
VIOLENCE – introduced with the 2011 amendments discussed below.
o Additional Considerations ss 60CC (3) & (4) include
  any views expressed by the child and any factors (such as the child’s maturity
or level of understanding) that the court thinks are relevant to the weight it
should give to the child’s views;
 the nature of the relationship of the child with each parents and any other
person (including grandparent or other relative).
 the extent to which each parent has taken, or failed to take, the opportunity to
participate in decisions about the child, spend time with the child
 the extent to which each parent has fulfilled or failed to fulfill obligations to
maintain the child.
 There’s more.

6. Changes in 2011 – Violence Amendments

 Removed the so called ‘friendly parent’ provision (enabled claims that a parent was not
facilitating contact) – as parents were reluctant to bring family violence issues in the open
 Removed the provision for costs orders to be made against a parent who ‘knowingly’ made
false statements
 Now clearly states that when considering what is in the best interests of the child in s 60CC
the court must consider two primary considerations
o The benefit to the children in having a meaningful relationship with both parents s
60CC(2)(a) and
o The need to keep the child safe from harm, and from being the victim of or exposed to
abuse or family violence - s 60CC(2)(b)
 And must GIVE GREATER WEIGHT TO THE NEED TO KEEP THE CHILD SAFE FROM
HARM, ABUSE OR FAMILY VIOLENCE (s 60CC(2A).
 The 2011 Amendment did not change the presumption of equal shared parental responsibility
nor the legislative pathway that mandates consideration of equal shared care
 But in determining the best interests of the child it states that if there is any inconsistency in
respect of the two primary considerations stipulated in s 60CC(2), then the right of the child to
be protected from harm is given greater weight over the right of the child to have a meaningful
relationship with each parent.
 Family violence and exposing children to violence does not necessarily rebut presumption and
result in no contact: Simpson v Hahn [2014] FamCA 674.

5. Procedural Issues
 Pre-action procedures for Part VII Order (s 60I)
o Applies to all children’s matters in all courts with family law jurisdiction
o Requirement to attend FDR before an applicant seeks a Pt VII Order
o “the object of this section is to ensure that all persons who have a dispute about
matters that may be dealt with by an Order under this part (a Part VII Order) make a
genuine effort to resolve that dispute by family dispute resolution before the Part VII
Order is applied for”.
o “genuine effort” not defined in the Act and may therefore be open to many
interpretations by FDR practitioners
o FDR practitioners to provide a certificate of the kind specified in s 60I(8) to clients
who have not reached agreement
 The legal practitioners when advising parents about parenting matters must give them
information about s 12B matters (ie resolution services) including:
o Services provided by family counsellors and family dispute resolution practitioners

6. Parenting Plans
 Since 2006 parenting plans have taken on new significance
 - Reflect the legislative preference that parenting disputes be resolved by non-adversarial
means and enshrined in parenting plans rather than court orders
 s 63B: parents encouraged to reach agreement with respect to their children and should be
guided by:
o the best interests principle
 o recognition of their responsibilities as parents
o the need to minimise conflict, and
o the fact that the legal system should be a place of last, not first, resort
 Parenting plans need only be written, signed documents freely entered between the parties
(Family as a contract?) No registration required or possible
 Parenting plans are not enforceable (only court orders are enforceable) BUT a court will
consider a pre-existing parenting plan if it is making an order
 If parents are unable to reach agreement, and have the relevant certificate from a Family
Dispute Resolution Practitioner they may go to Court.

Tutorial Questions

1. What concept of the child is embodied in the best interests of the child principle?
 Vulnerable and need care.
 May be influenced by a judge’s value system  subjective.

2.  What are the steps involved in making a parenting order? 

 (1) rebuttal presumption parents have shared parental responsibility

 (2) Can it be rebutted?

o Not in best interest of the child.

o Share care?

3.  How do the concepts of shared parental responsibility and shared time relate to each other
in the legislation?
 SPR doesn’t have to mean shared time.
 Perpetuates sexual division of labour.

5.     Does it continue to make sense to have a rebuttable presumption of shared parental
responsibility in s 61DA if greater weight is to be given to protecting children's safety in s
60CC(2A)? Articulate how the law should be reformed to reconcile these provisions.

 Balance interest of parents with interest of the child.

 One is product of father’s rights groups lobbying vs womens centres lobbying.

 Reconcile by thinking what is in best interests of the child.

 Judges making assessment based on their values can lead to mistakes and horrible
outcomes.
Week 9 – Child Related Disputes – Children in Court Proceedings

1. Jurisdiction of the Court for Children

 Historically, courts have assumed jurisdiction for the welfare of children and in
common law this power of the court is traced to the Parens-Patriae jurisdiction.
 ‘Welfare power’ under s 67ZC.
 International obligations to refugee children – CROC – Article 22

2. Recap on Making a Parenting Order – BIC

 If parents share parental responsibility – when a court order includes decisions about
“major long term issues” they must be made jointly (s 65DAC).
 When the presumption of equal shared parental responsibility applies consider equal
time/substantial time (if in the child’s best interests and reasonably practicable).
 When the presumption of equal shared parental responsibility is not applied, the
child’s best interests remain the overriding consideration
 In deciding what orders should be made in the child’s BIC the court MUST consider
all the factors set out in s 60CC (primary and additional) and the parenting principles
in s 60B.
 Primary considerations – s 60CC
 (2)  The primary considerations are:
o (a)  the benefit to the child of having a meaningful relationship with both of
the child's parents; and
o (b)  the need to protect the child from physical or psychological harm from
being subjected to, or exposed to, abuse, neglect or family violence.
 Note effect of s 60CC(2A) – more weight to (b) than (a).
  Additional considerations are relevant under s 60CC(3) e.g. views of the child
practical difficulty and expense of a child spending time and communicating with a
parent.

3. Particular Issues in Child Related Disputes

 Court use list of factors in s 60CC by:
o Decisions made in the exercise of discretion by the courts.
o The precedent value of these decisions remains minimal.
 Following discussion on particular issues in child related disputes (selection):
o Benefit of meaningful relationship (expressly provided in s 60CC(2))
 Primary considerations do not trump additional considerations – Slater
and Light (2011) 45 FamLR 41
 First primary consideration focuses on the BENEFIT FOR the child of
having a MEANINGFUL relationship with BOTH parents
 Second primary consideration NEED TO PROTECT THE CHILD
FROM VIOLENCE OR ABUSE
 Meaningful for the child not the parent
 McCall v Clark [2009] discussed three possible interpretations of s
60CC(2)(a)  refer to slide.
o Views of children (expressly provided in s 60CC(3))
 Pre 1983 the FLA required the court not to make an order contrary to
the wishes of the children over 14 except for good reason and in special
circumstances;
 After 1983 the court to consider any express wishes
 After 2006 to focus on children’s “views” rather than merely their
“wishes”.
 s 60CE: that a child cannot be required to express their views, in
determining whether to make a particular parenting order
 However, the court must consider any views that are expressed by the
child and apply such weight as is appropriate in the circumstances
having regard to the child's age and degree of maturity (S 60CC(3)(a)
and 60CD(1)).
 Morton v Berry [2014] – the Full Family Court reiterated the
importance of upholding the best interests of the child. The case was
remitted for hearing on the issue of the child’s views but remained the
case the court would determine what is in the best interests of the child
– not the child.
o Aboriginal and Torres Strait Islander children (expressly provided in s
60CC(3))
 B and R and the SEPARATE REPRESENTATIVE 1995 FLC –
 Anglo Australian F living in Tasmania, Aboriginal M living in
Victoria
 After separation the child went to live with the F for 15 months
 At trial the separate representative (now Independent Children’s
Lawyer) sought to put evidence before the court that Aboriginal
children who had been raised in non-Aboriginal environments
had suffered damage to their identity and self esteem
 Trial J restricted admission of that evidence and did not refer to
it in the reasons for judgment – applied formal equality
principle to the parents
 On appeal the Full Fam Court said the evidence ought to be
admitted in determining the BIC
 Such evidence did not constitute discriminatory or preferential
treatment.
o Sexuality of parents (tacitly provided in s 60CC(3))
o Mobility of parents (tacitly provided in s 60CC(3))


Tutorial Questions

1. The Family Court has wide jurisdiction over children which was expanded with the referral of state
powers to the Commonwealth and is also evident with the exercise of the welfare jurisdiction under s
67ZC. If children are presumably in need of protection, should there be an amalgamation of child-
related disputes within a dedicated federal court. Discuss with reference to the children in detention
cases. (We will return to this question in the section on child protection.)

 Welfare power – advancing wellbeing of children in family court proceedings.

 Courts assume welfare jurisdiction for children.
 Migration Act applies to anybody in detention including children.

5. The Convention on Child Abduction is a manifestation of Australia’s international law obligations.

How far are the principles in this Convention compatible with the overriding emphasis on the best
interests of the child in the FLA?

 Prevents children from being removed from a country.

Week 10 – Child Maintenance and Support

1. Rationale of the Parental Child Support Obligation (Kruse)
 In earlier times the reciprocity between parents and child was both economic and
social
 Modern reality is different – no fault/easy divorce means legitimisation of other family
structures
 Even so, the nuclear family model is used to impose obligations on parents to pay for
children as well as children looking after their parents when they become elderly.
 Uneven distribution – poor fathers are targeted; poor mothers have to make up the
difference – poor social welfare system.

2. Child Support Burden: Individual or Social Responsibility?

 Q: Why should any part of the child support burden be put on society?
o Economic reciprocity between future-to-be tax payers and old age support for
all workers and their spouses
o Indirect benefit to non parents, children as adults pay their pensions
o Sharing in child care costs is paying a debt rather than charity
o Already we accept the two most burdensome aspects of child support, health
care and education, as primarily social, rather than private, responsibilities
o Targets the poorest men who can’t pay
 Nancy Folbre – ‘Children as Pets’
 o People think of children as pets – parents acquire them because they provide
companionship and love. Therefore they should either take full responsibility
for them or drop them off at the pound … those who care for them are the ones
who get the fun out of them; therefore they should pay the costs … and not ask
the taxpayers for subsidies.
o Parents should take responsibility for their own children
o By the same token, the public should accept responsibility for recognizing,
rewarding, and supplementing parental efforts
o Having children is a costly exercise and parents are not only people who
benefit from having children in society.

3. Child Support and Spousal Maintenance

 Although spouse maintenance and child maintenance are defined legally as separate
matters, they are, in fact, inextricably linked. Child care responsibilities are often the
reason that women find themselves in need of spouse maintenance, given the effect
those responsibilities have on women's workforce participation rate. Similarly, the
legal links between the questions of maintenance and property distribution make it
impossible to consider those matters in isolation.
 Child Support - the search for private solutions to the poverty of women and children
 Children (unlike the former spouse) are perceived as not having the alternative of
economic independence  reinforced by the nuclear model of parents taking care of
children.

4. Child Maintenance under the FLA

 Only when a claim for child support falls outside of the Child Support Assessment Act
(CSAA) can an application be made under FLA, Pt VII, Div 7
 Applications which usually fall outside the CSAA because either the child or the liable
parent lack the necessary connection with Australia (s 69E).
 Application against a step parent (s 66M).
 Applications in respect of “children” over the age of 18 (primarily for support during
higher education) (s 66L).
 S 66G of the FLA provides that – “the court may, subject to this Division, make such
child maintenance order as it thinks proper”.

5. The Child Support Scheme – History of Changes

 Background: CSAA passed by Commonwealth with bipartisan support
 Initially seen as quite revolutionary.
 Q: What social issue was it that produced such a display of political agreement for
such an apparently revolutionary change
o Difficulties in administering court orders for maintenance; increase in divorce
rates; increased call upon social welfare system by single parents (mothers)
o Increase in child poverty
o Response by the state: Reinforce the idea of Parental Obligations to maintain
their children and thus
o Ensure that more realistic maintenance is ordered
o Impose effective enforcement process
 The Original Proposals:
o (a) Enforcement of maintenance through the Tax Office.
o (b) The use of a formula to determine the level of maintenance orders at least
in the general run of cases.
 o (c) The application of the formula by an administrative process with a right of
appeal to the courts.
 Resulted in the enactment of Child Support (Registration and
Collection) Act 1988 and Child Support (Assessment) Act 1989 and the
creation of the Child Support Agency (CSA).
 Child Support (Assessment) Act 1989
o Original formula for assessment of child support amount: taxable income
of the non custodian minus the 'exempted income amount’ (exempted income
amount is intended to ensure that the non custodian has a basic self support
amount before child support obligations are calculated)
o The basic formula (where all the children live with the payee, whose income
is less than $31,351) can be stated as follows:
 Child support amount = child support income amount - exempted
income amount x child support %
 Child support income amount = most recent taxable income (taking
into account exempt foreign income and rental property losses)
 Exempted income amount (see old s 39) is determined by pension rates
and number and ages of dependent children: eg $10,219 in 1999/00 if
non-custodial parent had no relevant dependent children living with
them.
 Child support %
 1 child — 18%
 2 children— 27%
 3 children— 32%
 4 children— 34%
 5 children— 36% (sec 37)
o Exclusion of custodial parents income from the formula was seen as unfair.
 Reforms to the CSA between 2006 – 2008 resulted in the following changes:
o calculates child support payments based on the costs of raising children
o uses the combined income of both parents to calculate child support payments,
treating both parents' incomes in the same way
o recognises both parents’ contributions to the cost of their children through care
and contact
o treats children of first and second families more equally.
 Stage One changes:
o Recognising non-resident parents on income support who have contact with
their children (14% of care = increased Newstart – used to be 30%)
o Letting parents who pay child support spend a greater percentage of their
payment directly on their children (increase to 30% from 25%)
o Increasing activity to ensure that child support is paid in full and on time (more
services to avoid child support avoidance)
o Introducing a more balanced assessment of the capacity of parents to earn
income (making it harder for parents to avoid child support by diminishing
income)
o Reducing maximum payments (the amount of income above which no
additional child support was payable was reduced)
o Improving support for separating families (more services to help parents come
to agreements)
o Improving service delivery by the CSA (more trained staff and case
management of complex cases)
o Increasing minimum payments (in 2006 from $5 to $6.50)
  Stage Two changes:
o Independent review of Child Support Agency decisions (appeals now to the
SSAT)
o Improving the relationship between the Child Support Scheme and the courts
(increased court enforcement; court powers; case management powers; limits
on departure orders and change of assessment decisions)
o Giving separating parents more time to work out their parenting arrangements
before their family payments are affected (increase from 28 days to 13 weeks
for payee to seek child support from payer before FTB Part A affected)
o Better management of parentage issues (improved and simplified process of
dealing with parentage disputes.
 Stage Three changes:
o A new formula for calculating child support (based on shared parenting and
costs of raising children)
o A minimum payment for all children ($5 to $6.50)
o A fixed payment for parents who appear to be deliberately minimising their
income (unless they can prove income is low)
o Changes to Family Tax Benefit (parents with 65% of care or more keep the
FTA; parents with care between 14-35% have costs of care recognised in the
formula)  social welfare payment paid to families to help with the cost of
raising children.
o New treatment of extra income earned after separation (first 3 years extra
income excluded from formula)
o Changes to agreements for child support and lump sum payments (more
protection of these agreements)
o Simplified processes for parents who want to reconcile (6 months no child
support payable and no debts can accumulate)  shows the state won’t
intervene if families are in-tact.
o Recognition of step-children without other support (taken into account if there
is no other person to support them)
o Closer alignment of income definitions for child support and Family Tax
Benefit (FTB) (in relation to certain tax-free amounts and foreign income)
 In very general terms, the concept of the legislation from 2008 is to ensure that parents
share rateably in the costs of caring for children.
 However, in attempting to achieve this goal we see two significant impacts:
o An ever more complex assessment process is required in order to allow for
more individualised administrative assessments; and
o an ever more complex formula is being applied as the legislature makes
adjustments to allow for ever widening factual scenarios.
 6 different formulas.

6. “Basic 8 Step Formula”

 (1) Work out each parent’s child support income
 (2) Work out the parents’ combined income
 (3) Work out each parent’s income percentage
 (4) Work out each parent’s percentage of care
 (5) Work out each parent’s cost percentage – using the Care and Cost table
 (6) Work out each parent’s child support percentage
 (7) Work out the costs of children – using the Costs of Children table
 (8) Work out the child support amount
 Notable features (2021):
 child support payable even for combined incomes $0-$39,479 (Costs of Children
table)
 child support not payable on income over $197,393 (Costs of Children table)
 child support begins to be reduced if one parent has 14-34% (Care and Cost table)
 Need to be a threshold where child support is payable – not $0.
 If mother income is reduced, child’s support payment is reduced

7. The Wider Context of the Child Support Scheme

 The recent changes in the CSAA that make both parents equally liable to pay for child
support assume that:
o the effects of childcare responsibilities have somehow changed.
o invoke the fiction that men and women are equal financial actors in
contemporary societies
o in 2009, 88% of receiving parents were mothers with an average taxable
income (in 2013) was $28,500
o the paying parents’ average taxable income was $46 100
o 58% of receiving parents and 24% of paying parents were eligible for an
income support payment (most commonly these were Newstart Allowance,
Parenting Payment and the Disability Support Pension).

8. Alternatives to Seeking a CSA

 Private Child Support Agreements - can be part of a financial agreement or can be a
separate private arrangement for financial support (CSA s 4(3)
o binding child support agreements (CSA s 80C(2)) - no admin assessment
o limited child support agreements - admin assessment needed (s 80E(1))
 The child support agreements can be registered by filing an application with the CSA,
ATO or Centrelink.
 The effect of a registered child support agreement is that it will be assumed, for the
purposes of the FTB Part A that the assessment amount of child support is being paid
under the agreement.
 Thus the policy decision is that if the eligible parent ‘chooses’ to accept lesser amount
of child support than entitled to under the CSA then they must bear the loss or the
shortfall if they are in need of welfare payments.
 Parenting Plans and Parenting Orders can include payment plans – also can be made
as lump sums or through transfer of property.

9. Reasonable Maintenance Action

 The parent seeking FTB Part A payment is required to take reasonable maintenance
action
 that means applying to the CSA for a child support assessment or for the acceptance of
a child support agreement or take reasonable action to change their status under the
child support agreement from being a payer to being a payee.
 The claimant of FTB has 13 weeks to take reasonable maintenance action and if after
13 weeks the maintenance action test is not met they will be paid only the base rate of
FTB Part A
 If they don’t apply it is assumed they don’t need it ie they are getting the full amount
they are entitled to.
9.1 Exemptions to Maintenance Action
 if the payee fears that if they take action for child support the payer will react violently
towards them or their family;
  where seeking child support may have a harmful or disruptive effect on them or the
payer;
 if the identity of the other parent of the child or children is unknown;
 if they have had legal advice that paternity could not be proven through a court;
 if they have been unsuccessful in proving paternity, such as failed attempts to locate
the father, where the child was born as a result of a surrogacy arrangement which is
not recognised under the FLA;
 if there are cultural considerations that adversely affect the individual’s capacity to
take reasonable maintenance action;
 where the payer in the child-support case is deceased; and where there are other
exceptional circumstances.

10. Important Definitions

 Eligible carer , in relation to a child, means a person who has at least shared care of
the child.
 A person has shared care of a child if the person's percentage of care for the child
during a care period is at least 35% but not more than 65%.
 If you have more than 65% of care (ie primary care) you are not liable to pay CS.
 A ‘liable parent’ eligible to pay child support
 Parent is not necessarily a child’s biological parent. ‘Parent’ defined in CSAA s 5
includes adoptive parents and parents of child born as a result of surrogacy or artificial
conception procedures (see ss 60H and 60HB of the Family Law Act).

11. Process of Getting Child Support

 (1) An application is made to the Child Support Agency
 (2) The liable parent is assessed for child support
 (3) The child support liability is added to the child support
register
 (4) Payments are made to the child support agency, and the registrar makes payments
to the payee each month.

12. Effects of a Child Support Assessment/Order

 A child support liability can stop a liable parent from leaving the Commonwealth of
Australia: CSAA s 72D(1).
 Child support will be payable until a ‘terminating event’ happens in relation to:
 The child (death or reaching the age of 18)
 The eligible carer (death or ceasing to be the carer) or
 The liable parent (death).
 A liable parent must advise their employer if they are liable to pay child support. Child
support can be garnished from a person’s pay. Once child support begins to be
garnished from your pay you cannot stop it unless you have the consent of the eligible
carer.

13. 2018 Changes to Child Support Scheme

 (1) Extension of interim period before child support is recalculated following a change
in care arrangements
o Prior to the change, there was a 14 week interim period that applied before
child support was recalculated following a disputed change in care
arrangements to enable parties to address the dispute.
o The new laws extend this period to up to 52 weeks if the dispute occurs within
the first year of a Court Order, or up to 26 weeks for older Orders if the person
 with increased care does not take reasonable action to participate in family
dispute resolution.
 (2) Amended tax assessments to be taken into account
o The new laws provide for child support obligations to be recalculated
following an amended tax return if the amended return results in a higher
taxable income.
 (3) Simplification of setting aside Child Support Agreements
o Court will be able to set aside CSA made before 1 July 2008, particularly if
one of the parties to the Agreement did not obtain legal advice.

14. In Conclusion
 Need more accurate data of costs to both parents;
 Discourse of sole responsibility of the parents should give way to better public support
for the costs of bringing up children
 The present approach is biased in favour of payers with greatest financial means
(usually men given the pay gap that exists)
 The present approach addressed the concerns of fathers; concerns of mothers only
marginally addressed
 Approach to reform was buttressed by the Act aimed at shared parenting – reveals the
biased use of evidence
 This approach was a gendered and eclectic use of evidence that does not accord with
empirical evidence – women as a group continue to be the primary carers and are
financially worse off than men
 The effect is that women are faring worse under the new scheme than men
 Difficulty for women claiming CS especially in cases of violence
 Flow on effects for children – unequal treatment of children and children at risk not
getting the support they need

Tutorial Questions

1. Is paying child support compulsory? Should it be? Think of some arguments for and against a
compulsory child support scheme. 

 At the moment, paying child support is optional. It is only compulsory for those claiming
specific social security payments for family assistance (particularly the Family Tax Benefit).
 Where a parent is not receiving the Family Tax Benefit at no more than base rate there is no
obligation to apply to the Child Support Agency for an assessment.
 If a claimant wants to get more than the basic FTB Part A payment, they must take
maintenance action.
 The base rate for FTB Part A is $60.90 for each child per fortnight.
 The base rate isn’t the minimum rate of FTB Part A. The government may pay you less than
the base rate. For example, due to your income.
 Maintenance action compulsory for certain social welfare benefits.

For Against
 Ensure children are given financial support despite  Many lower socioeconomic
their family arrangement i.e. if their parents are families may not be able to
divorced and have a horrible relationship. afford child support
 Protects vulnerable and out of work mothers who especially if they struggle
 may not be able to work after separation due to to look after themselves.
mental health issues.  It is a confusing and
 Holds parents, especially wealthier males, complicated system.
accountable to their children and the financial  Discourages hard work
responsibilities that come with having a child. from both parents.
 Fathers would have to continue to provide for their
children both financially and in caretaking capacity.
This would be beneficial to the development of the
child.
 Currently, the payee (who is usually the mother)
needs to seek a maintenance order, and if this isn’t
done it will be presumed that she is receiving
adequate child support, and as a result will lose out
on social security benefits. This places the
responsibility of seeking child support predominantly
on mothers. They have to lodge all the paperwork
and provide the supporting documentation. Some
might find this to very procedurally complicated,
especially those that are economically disadvantaged.
They may not be aware of how the scheme works or
find it too difficult to navigate. Hence, if child
support was made compulsory for everyone and was
automatically applied, it would greatly simplify the
process and may lead to better procedural outcomes.

2. Do you think the child support system is fair? What is unfair about it? In your answer
consider the social hierarchies that exist in society (eg gender and class) and whether the child
support scheme has helped or hindered the creation of equal social relations.  

 Unfair due to the threshold to pay child support at $0 annual income while earning over $197k
exempts you from paying at all.
 This creates inequality between lower and upper class families.
 Definitely hindered the creation of equal social relations.

3. Explain the role of the state in the child support context. Has the right balance been struck
between parental responsibility for the financial support of children and the state's obligations
to provide child support?  

 The state aims to reinforce the idea of Parental Obligations to maintain their children and thus
o Ensure that more realistic maintenance is ordered
o Impose effective enforcement process
 Fehlberg and Maclean's1 (2007) conclude that the 2008 child support reforms shift the burden
of support away from the state and the non-resident parent, towards the resident parent,
usually the mother.

4. After reading the section on child support explain in your own words what are the
connections (or disconnections) between spousal maintenance, child support and parenting

1
Fehlberg, B., & Maclean, M. (2007, 25-28 July). "Changing priorities": Current child support agendas in Australia,
England and Wales. Paper presented at the Law and Society Conference, Humboldt University, Berlin.
orders related to time. What messages does the law's approach to these matters send to
separating parents.

 You have 13 weeks from the date you separate from your partner to apply for child support. If
you do not apply for child support within that time, you can only receive the base rate for
Family Tax Benefit Part A. Used to be 28 days.
 If you were married, applications for spouse maintenance must be made within 12 months of
your divorce becoming final.
o If you were in a de facto relationship, your applications for de facto partner
maintenance must be made within 2 years of the breakdown of your de facto
relationship.
 There is no time limit in respect to parenting matters. You have the ability to
commence court proceedings at any time so long as there is a child under the age of 18 years
of age.
 Disconnection between child support, spousal maintenance and parenting orders in term of
time limits.

5. Explain the formula for computing child support. See part 10.5.1 of the prescribed text
or https://www.servicesaustralia.gov.au/individuals/services/child-support/child-support-
assessment/how-we-work-out-your-assessment/basic-formula

Apart from the formula being difficult to understand, what other observations can you make
about the formula?

 The income formula uses gross taxable income rather than net income. The formula measures
a parent's ability to support children by their share of combined pre-tax income (after self-
support amounts are deducted). However, the parent with the higher income gives up a greater
share of their income in tax. Hence, their ability to support children is over-estimated in the
calculations.

Week 11 – Dependency and the Law – Social Welfare Support

Part I: State Intervention in the ‘Private’ Family:

1. Theoretical Arguments
 (1) Arguments against state interference in the family
o Argument that non-intervention in the private sphere is necessary for the
autonomy of the citizen from state control.
o Personal relations can be better organized by the partners themselves rather
than by the law, i.e. by relying on each other’s altruism or by entering into
explicit contracts.
o Welfare state meddles in peoples’ personal affairs and makes them dependent
on the state – both inefficient and morally undesirable.
 (2) Counter-argument
o By state not intervening, it is actually making a choice and thus, is still
intervening.
 o Understanding that such distinctions are constructed (historically, socially,
politically) means that decisions to not intervene are political choices and have
political consequences
o Eg – value of care work (constructed as private it’s the labour of love; as
public it’s given an economic value)

2. Why Study Social Welfare Provisions in Family Law

 Illustrate the various sources of regulation of the family that are not immediately
apparent from looking at the conventional Family Law legislation or case law
 Illustrates the extent to which the state regulates the family while maintaining the
stance that the family is private and family members should be free to make their own
choices
 In Family Law, family largely treated as private institutions and law only intervenes
when relationship breakdown. However, social welfare shows how families are treated
as public.
 The change in discourse (dependency v autonomy) should be analyzed systematically
to demonstrate that Family law is not a stand-alone area of law and needs to be studied
in a wider context of social policy.
 Provisions in FLA linked to the welfare system (context spousal maintenance, binding
financial agreements, also child support). They illustrate:
o family law serving to protect the public purse
o social welfare is a last resort measure
o paradox created – family law/social welfare informed by the nuclear private
family – continues to reconstruct this family as the normal family
 The Flip Side
o difficulty obtaining welfare/low payments for women obscures the effects of
the sexual division of labour (low social welfare payments devalue care work)
o further obscured by welfare policies that force women to have to seek work –
they have to be autonomous (Social Welfare requirements for mothers to look
for work makes the caring of children invisible).

3. The Welfare State – Origins, etc.

 A welfare state is a state that is committed to providing basic economic security for its
citizens by protecting them from market risks associated with old age, unemployment,
and sickness. Protection is provided by a range of social policies, including health
care, unemployment benefits, and old-age pensions.
 Antecedents in Poor Laws in England – responsibility of the community to provide for
those unable to do so for themselves.
 Balance between social protections (welfare state) and ensuring we do not undermine
the capitalistic economy that is intrinsic to liberalistic democracy.

4. Social Welfare for Women

 WELFARE is a half way measure for acknowledging women’s contributions to care
functions but in no way provides a true valuation of care work.
 Cannot treat welfare dependency of mothers in isolation – BUT it is linked to the
primary care giving responsibilities of women and their consequent incapacities to be
independent wage earners
 You cannot create a fair society or state if you deny the link between care giving and
economic inequality/dependency of women
 Need to recognise that the provision of domestic labour – usually by women – creates
dependency/inequality of carers – and creates independency for other family members
 Reinforces gender roles.

5. Social Welfare for the Family

 The nuclear family translates into the breadwinner family model in welfare and
employment discourses
o Husband worker/stay-at-home wife
 Early feminist supported such a model
 Later feminist critical – assumption men would support wives/only compounded
dependence
 Rise of the women’s movement in the 1970s in Australia
o equal rights (as workers) and special rights (as mothers)
o but has not achieved equality
 Nowadays presumed to be equal (e.g. shared equal parenting) when that is not case in
reality
 Family continues to be treated as a unit (e.g. a person’s JobSeeker (previously
Newstart payment) is reduced by their partner’s income)
 Gender neutral language used (e.g. Parenting payment) obscures that it is women who
are predominantly single parents
 Neoliberal age:
o The Neoliberal turn in pubic discourse has seen a reassessment of social
security/welfare provisions as illegitimate use of public money – inter alia the
argument is that availability of social welfare payments encourages
dependency and makes people inefficient
o Introduction of mutual obligation programs – welfare no longer seen as a
citizen’s right but as imposing obligations on individuals
o Based on ec policy aimed at reducing social spending will reduce taxes will
increase jobs
o Unemployed were the first targets; then others followed – single mothers,
people with disabilities, Indigenous peoples.

6. Mutual Obligation and Single Mothers

 The mutual obligation regime initially targeted the long term unemployed.
 Began to extend to other groups i.e. men during Howard government.
 Mutual obligation for sole parent pensioners began in 2006 with the coming into effect
of the Employment and Workplace Relations Legislation Amendment (Welfare to work
and other measures) Act 2005.
 The mutual obligation requirements start when the youngest child turns 6 years old.
When that happens partnered parents are also put on the JobSeeker payment.
 Single parents can stay on the Parenting Payment until the youngest child turns 8, but
then they must go on JobSeeker.
 Exemptions from mutual responsibility for primary carers:
o Foster carers
o Home schooling
o Large families
o Kinship care
o Carer of child with disability or medical condition
o Domestic violence/stress due to relationship breakdown
 Centrelink offices apply these exemptions.

7. Statistics
  The gender-neutral language obscures the social reality that most women are primary
carers and even if they are not mothers they face disadvantages in the labor market,
i.e. as a group women in Australia, earn approximately 13.4% less than men in 2021
(improvement).
 This inequality is a result of a complex interaction of factors like women often attract
lesser rates of pay, engage in part-time work and casual work and are concentrated in
lower paid occupations.
 All these effects are further exacerbated when single mothers with children are
expected to engage in paid work.
 In 2012 15% of all families were single parent families
o 81% of these are single mother families – but age of children are increasing.
 As hours of work increase so does tax liability and the need and cost of childcare -
negate the financial benefits of returning to work

8. Mutual Responsibility and Indigenous Peoples

 The notion of mutual responsibility was also extended to Indigenous peoples by the
Howard Government - policy of practical reconciliation - replaced self determination
as the official government policy for indigenous peoples – resurgence of the
paternalism of the ‘protection era’
 Among the extensive measures of control and surveillance imposed on these
communities has been the quarantining of welfare payments – described as income
management
 Payments are made on what is called a BasicsCard (now cashless debit card) and
individuals are prohibited from using it to purchase things such as alcohol, tobacco,
pornography or lottery tickets.
 The aims of income management include: primarily to protect women and children by
reducing harassment for money and ensuring the needs of children are met – but
neoliberal aims to end welfare dependency, foster self-sufficiency and improve money
management (protective and behavioural aims).
 Critique:
o Humiliating for recipients;
o Evidently informed by traditional western notions of family in ensuring
recipients uphold their responsibilities to maintain their children, and with the
corresponding effect of undermining the cultural obligations the recipient may
owe to extended family members.
o Repeating mistakes of the past protection era:
o Paternalistic
o Discriminatory
o Administrative assessment without judicial oversight of capacity to manage
income (as would happen in cases of intellectual disability)

Part II: Family Policy in Australia

1. Role of Family Policies

 Developments in welfare policy and law demonstrate more than just economic
concerns but also:
o Concern about the place of women and men in society (e.g. whether to
promote female employment or homemaker role)
o Increase or decrease population
o Support alternative family structures or not
o Promote education and health etc
2. Welfare Policy in Australia
 20th Century.
o Based on family wage
o Welfare to women based on carer role – child endowment, widow’s pension,
sole parent pension (now parenting payment)
 21st Century
o Slow shift to recognise women as workers.
o The right to request flexible working arrangements (which may include
changes in hours, patterns and location of work) for parents of pre-school or
disabled children. The employer may refuse on reasonable business grounds.
o The right to unpaid parental leave of 12 months for each employee, or the right
to request an additional 12 months unpaid parental leave if one partner does
not use their unpaid parental leave entitlement.
o Tensions exist between policies promoting mothering such as the Baby Bonus:
Having ‘one [baby] for your husband and one for your wife and one for the
country’ and women as workers – paid parental leave.
o Baby Bonus – paid to Australian families when a baby was born. Main purpose
was economic – government was worried people were not having children
anymore – economic incentive to serve an economic purpose – shows other
side of neoliberalism – government will spend money on things they will get
financial return on.

3. Paid Parental Leave

 Paid Parental Leave scheme - introduced on 1 January 2011.
o Eligible working parents can get government-funded pay when they take time
off from work to care for a newborn or recently adopted child. 
o The Paid Parental Leave scheme provides two payments – Parental Leave Pay
and Dad and Partner Pay.
 Parental Leave Pay
o Parental Leave Pay provides eligible working parents (usually birth mothers
who had been in continuous employment for 13 months) with up to 18 weeks
pay at the rate of the National Minimum Wage
 Dad and Partner Pay
o Eligible working dads or partners with up to two weeks pay at the rate of the
National Minimum Wage – they have to be on unpaid leave or not working to
receive the payment.
3.1 Critics of paid parental leave
 Critics of paid maternity and parental leave argue that there is no place for public
funding at all—that having children is a free choice and parents must bear the ultimate
responsibility.
 State funded PPL inconsistent with FLA which privatises the cost of family
relationships.
3.2 Advocates for paid parental leave
 Studies show early return to work can have a negative impact on maternal and child
health; access to maternity leave is associated with reduced incidence of depression in
new mothers; access to maternity leave significantly decreases infant mortality rates

 All these payments share the same rationale that they are to help Australian families
with the cost of raising children.
 All payments are means tested.
  The income threshold for all payments is significantly higher than for other welfare
payments (such as the Parenting Payment), which suggests that these payments
function as ‘middle class welfare’.

Tutorial Questions

1. Why include social welfare policy in the study of family law?

 Illustrate the various sources of regulation of the family that are not immediately apparent
from looking at the conventional Family Law legislation or case law
 Illustrates the extent to which the state regulates the family while maintaining the stance that
the family is private and family members should be free to make their own choices
 In Family Law, family largely treated as private institutions and law only intervenes when
relationship breakdown. However, social welfare shows how families are treated as public.
 The change in discourse (dependency v autonomy) should be analyzed systematically to
demonstrate that Family law is not a stand-alone area of law and needs to be studied in a wider
context of social policy

2. The FLA provides that having the care and control of a child under the age of 18 years
may justify an order for spousal maintenance. In social welfare law the assumption is
that single parents with children should make efforts to enter the workforce when their
youngest child turns 8. Why the difference? Is the difference justified? Why? Why not?
 Difference can be attributed to the neoliberalist approach the government is taking where
welfare is no longer seen as a citizen’s right but as imposing obligations on individuals.
 This is based on economic policy aimed at reducing social spending which will reduce taxes
and in turn, increase jobs.
 The difference can be attributed to the approach family law takes – treat family as a private
institution and encourage cooperation between partners, support each other even after divorce,
compared to the state’s need to reduce social spending.
 Government does not want to spend money on people who are not adding to the economy.

3. Different social welfare payments are available to families (usually mothers) to help with the costs
of raising children.

How can you explain the differences in the payment rates that exist between the Baby Bonus (which is
now called the Newborn Upfront Payment and Newborn Supplement), the parenting payment, and the
paid parental leave payment?

3. Why should an employer or the government pay parental leave? Can it be argued that
the decision to have children is a free choice of the parents and they should be
responsible for the consequent costs? If society is to share responsibility for the cost of
raising children, has the introduction of payments to support families been an adequate
response. Articulate the assumptions underlying your position.
 I definitely think parents should bear the majority of costs to raise children – it is their choice
and I think an obligation inherent in the role of a parent. However, PPL should be paid by an
employer or the government as women have the right to work and enter the workforce again
after undergoing the process of giving birth, becoming a parent for the first time, etc. If the
assumption is that children will grow up to support the elderly and fund their pensions and are
an important part of economic prosperity etc. the mothers giving birth to these children should
have independent financial support (separate from their partner) to undergo this process and
allow for ease during difficult times.
 Also the point that it will improve their mental health
o Studies show early return to work can have a negative impact on maternal and child
health; access to maternity leave is associated with reduced incidence of depression in
new mothers; access to maternity leave significantly decreases infant mortality rates.
5. Last year the Commonwealth government responded to the effects of COVID-19 by
introducing additional Jobseeker (formerly Newstart) and Jobkeeper payments. These have
since ceased, but there has been other economic packages introduced and the base rate of the
Jobseeker payment has been increased. What purpose do such measures serve? Could these
measures be described as supporting families and family members or undermining them?

 I think it can be framed as ‘helping families during these tough times’ but from government
initiatives like Dine & Discover vouchers, decreasing payments once majority of people at
work again, etc. it can be purely to help the economy – as you said in the lecture, the
government won’t spend money unless it is getting something in return.