Professional Documents
Culture Documents
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Goals Introduction
By the end of this session, you should be able to: • Family law deals with the rights and obligations
• Appreciate the statistics in relation to marriages arising from marriage, informal relationships
resembling marriage and relationships involving
and divorces in Australia; and some form of domestic relationship but not
• Have knowledge about the sources of Family resembling marriage, such as relations between
Law in Australia. siblings or patient and carer.
• Family law further deals with the civil
responsibility of parents towards their children,
whether born within or outside any enduring
relationship.
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Other Types of Orders Sources of the Law
• Location Order — to find where a child is living • The Australian Constitution: sets out the powers
• Recovery Order — to return a child to a party of the Commonwealth Government in relations
to marriage, divorce and matrimonial causes
and child support.
• The law relating to the rights of the parties to an
informal or domestic relationship, adoption,
change of name are governed by State and
Territory legislation.
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Overview- Family Law in
Overview
Australia
The Marriage Act 1961 came into full operation on 1 September 1961. Under the Family Law Act 1975, the irretrievable breakdown of marriage is the
• Under the Act, marriages may be celebrated by a minister of religion only ground on which a divorce is granted.
registered as an authorised celebrant, by a district registrar or by other • This ground is established by the husband and wife having lived apart for 12
persons authorised by the Attorney-General. Notice of the intended months or more, and there being no reasonable likelihood of reconciliation.
marriage must be given to the celebrant within 18 months of the marriage, • Applications for nullity of a marriage under Family Law legislation must be
but no later than one month and one day prior to it. on the ground that the marriage is void because of failure to meet a legal
• A celebrant must lodge an official certificate of the marriage for registration requirement such as that neither party be already lawfully married to
to a district registrar in the state or territory in which the marriage took place another person.
within 14 days. • There is no provision for judicial separation under Family Law legislation.
• Since 20 June 1973, the minimum age at which a person may marry without • Successful applicants for a divorce under Family Law are initially granted a
parental consent is 18 years. Persons between the age of 16 years and 18 decree nisi. This becomes absolute after one month unless it is rescinded,
years may marry with parental or guardian consent and an order from a appealed against, or the Court has not declared its satisfaction that proper
judge or magistrate. arrangements having been made for the welfare of children involved.
• Any two persons under the age of 18 years may not marry each other.
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Divorces - Age and Length of
Divorces Involving Children
Marriage
• Of all females granted divorce in 2008, 61.9% were aged under 45 • Over the last twenty years, the proportion of divorces
years. In comparison, only 52.4% of males granted a divorce were in
this age group . involving children under 18 years has been decreasing,
• Median age for males at separation in 2008 was 40.5 years, although this decline has slowed in recent years. The
compared to 37.8 years for females. Median age for males granted proportion of divorces involving children was 48.8% in
divorce in 2008 was 44.1 years, compared with 41.4 years for 2008.
females.
• In 2008, median length of marriage to separation was 8.8 years. In
comparison, the median length of marriage to separation in 2004
was 8.7 years, and in 1999 it was 7.9 years.
• Median length of marriage to divorce was 12.3 years for divorces
granted in 2008. In 2004, it was also 12.3 years, and in 1999 it was
11.3 years.
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Questions?
• break for a leg stretch…
• pray…
NCEIS
• cup of tea…
• convenience stop… FAMILY LAW SERIES
• attend to phone calls/sms…
Marriage
• catch up…
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Discussion About Marriage Requirements of valid marriage
• The law regulating marriage in Australia is • Voluntary union
contained in the Marriage Act 1961 (Cth) which • Life-long union
sets out who may marry, who may perform the • Male-female union
marriage ceremony, how the ceremony is to be
conducted and where and when it may be • A monogamous union
performed.
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Foreign Marriages
• In general, a marriage celebrated overseas is recognised in
Australia as a valid marriage if it is valid according to the laws of the
country in which the marriage took place.
• However, the marriage will not be valid in Australia if:
– either person is still married, ie a polygamous marriage [ss23A(1)(a), Any questions?
23B(1)(a)]
– either person is not of marriageable age
– the parties are within a prohibited relationship
– there was no real consent, see s23B(1)(d)
• A marriage celebrated outside Australia can be proved with an
official extract from the foreign registry. Certificates in a foreign
language must be filed witha translation and an affidavit by the
translator that he or she is competent to translate it.
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Disclaimer
• This presentation is not legal advice.
• This presentation is for education purposes.
NCEIS
• If you have a specific legal matter, you are
FAMILY LAW SERIES encouraged to seek legal advice.
Divorce
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Basic requirements continued… Applying for a Divorce
• To apply for a divorce, one of the parties must: • Complete divorce application form
– Be an Australian citizen, or • File application
– Live in Australia and regard Australia as his/her • Serve other party (if applicable)
permanent home, or
– Ordinarily live in Australia and have so lived for at • Attend court (if applicable)
least 12 months before applying.
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Not Knowing the Contact Details The Other Party is Avoiding
of the Other Party Service
• The applicant can apply (through affidavit) to the court • The applicant can apply (through affidavit) to the
for dispensation of service (when the court orders that
service does not have to occur). court for dispensation of service
• In application for dispensation of service, applicant must • In application for dispensation of service,
outline attempts made to try to find out contact details of applicant must outline attempts made to serve
the other party, including through mutual friends and
family members. other party
• Dispensation will be granted if court satisfied that • Dispensation will be granted if court satisfied
applicant has made all reasonable attempts to find out that applicant has made all reasonable attempts
contact details of other party and that requiring further
action to be taken or ordering substituted service not to serve other party and that requiring further
appropriate in the circumstances. action to be taken or ordering substituted service
not appropriate in the circumstances
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Arrangements for Children Annulment
• A Registrar will not usually grant a divorce unless suitable • An application for an annulment (also called a decree of nullity) is an
arrangements have been made for the future of any children under application for an order from the court that the marriage be declared
18 years of age [s55A]. invalid.
• What information must be provided on the application? • On what grounds can a marriage be declared invalid?
• Details about the children must be set out on the Application for • Invalidity may result from any one of the following:
Divorce, including: – either partner was not of marriageable age;
• where and with whom they will live; – bigamy (that is, either partner was already married at the time of the
• how the children are supported; marriage ceremony;
• how often they see the other parent; – the people were within a prohibited relationship (such as sisters
• the amount of child support paid; and marrying brothers, parents marrying children, half-brothers marrying
half-sisters);
• their health and progress at school.
– either or both of the parties did not consent (the marriage took place
• Although the Registrar has to approve the arrangements, they do through fraud, duress, mistake or mental incapacity); or
not become orders of the court and are not enforceable by the court. – the ceremony was invalid (for example, the celebrant was not properly
Separate applications must be made for residence, contact and child appointed).
support orders.
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Questions?
• Any questions
NCEIS
FAMILY LAW SERIES
Property Dispute Settlement
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What Sort of Situation Gives
Which Act Applies?
Rise to a Property Dispute?
• My wife just left me and the kids. She says she wants a • Married couples can apply for a property settlement under the Family Law
Act 1975.
divorce. She wants to sell the house, I don’t but I can’t • Unmarried heterosexual couples who separated before 28 June 2001 can
apply for a property settlement under the Property Law Act 1958.
pay the mortgage on my own. What can I do? • Unmarried heterosexual who separated after 28 June 2001 can apply for a
• I have just fled the family home due to domestic property settlement under the Property Law 1958, and if separated since 1
December 2008, can apply for a property settlement under the
violence. I am too scared to go back but I left with Relationships Act 2008 (Vic).
nothing. • Since 1 March 2009, the Family Court has held exclusive jurisdiction in all
States/Territories (except for SA & WA) to determine property and
• My husband and I have separated. We own a home. He maintenance for s/sex and unmarried couples who separated after 1 March
2009 or agree to ‘opt in’ to the Family Court (avoids need to apply to State
tells me that I am not entitled to any of the home as he courts).
has always worked while I have stayed home to look • Same sex couples (domestic relationship) who separated since 01
December 2008 can apply for a property settlement under the Relationships
after the children. Act 2008 (Vic).
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When is property valued for
Property prior to Marriage
settlement
• Where parties have cohabited before marriage • Matrimonial property includes anything owned by either
and their financial affairs have become mixed spouse at the date of their separation, but does not
include property acquired after separation.
together, the Court will take into account the
• However, the date of valuation of property is the date of
financial arrangements during the period of
trial (or date of negotiation), even though this may be
cohabitation when deciding on the division of some months or even years after the separation.
property. • This means that it is in the interests of both spouses to
• If parties contend that their finances and maintain the value of matrimonial property after
property remained separate, they may need to separation, so as to maximise the value available for
produce documentary proof. distribution between them.
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Determining Property Allocation
Time Limits
(cont.)
• Length of marriage • A married person can apply for a property
• Contribution to the marriage: settlement from the time of separation.
– Financial
• Salary • A divorced person must file an application for
• Savings property orders within 12 months of the
• Gifts from family members divorce becoming final if he/she wants the court
– Non-financial
• Primary carer to make orders.
• Improvements to home • In special circumstances, a divorced person can
• Unpaid contribution to business apply to the court for a property settlement even
• Future needs (age, health, supporting or being
supported by another person) if more than 12 months have passed since
his/her divorce became final.
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When does a domestic
Domestic Relationship
relationship exist?
• The Relationships Act 2008 (Vic) came into The court will look at:
effect December 2008. Allows people in a • Duration of the relationship (usually two years
‘domestic relationship’ to: cohabitation is required unless there is a child to the
relationship)
• Have their relationship recognised through the
• Nature and extent of common residence
Relationship Register as administered by
• Existence of sexual relationship
Registry of Births, Deaths and Marriages;
• Degree of financial dependence
• Enter ‘relationship agreement’; and • Ownership, use and acquisition of property
• Seek maintenance and property in the event of • Care and support of children
relationship breakdown. • Reputation and public aspects of the relationship
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Time Limits Spousal Maintenance
• An application for a property settlement must be • A spouse does not automatically get maintenance
made within 2 years after the day on which the payments from the other spouse. A separated woman or
relationship ended. man who is not caring for children and who is able to
work will probably not be awarded maintenance.
• A court may grant leave to a domestic partner to
apply for an order at any time after the end of • To obtain maintenance a spouse will generally have to
the two year period if the court is satisfied that show that he or she cannot support him or herself
greater hardship would be caused to the partner properly because of the following criteria:
applying if that leave were not granted than • caring for children, or
would be caused to the other partner if that • an inability to obtain work due to old age, sickness, or
leave were granted. some other reason.
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Disclaimer
• This presentation is not legal advice.
• This presentation is for education purposes.
NCEIS
• If you have a specific legal matter, you are
Children’s Issues encouraged to seek legal advice.
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Purpose of laws relating to
By the end of this training
children in family law
• We should be able to: • The law attempts to assist parents to redefine
– understand how the law works out who the children their relationship to accommodate the future
live with after their parents split up; needs of their children.
– understand what is the role of ‘significant people’ in • Laws were recently changed.
the children’s lives.
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New ‘best interests’
New ‘best interests’ - s60CC
- s60CC(3) includes
• Additional Considerations PLUS
– Any views expressed by the child • The willingness and ability of each other child’s
– The practical difficulty and expense of a child having parents to facilitate, and encourage, a close and
contact with a parent continuing relationship between the child and
– The maturity, sex, lifestyle and background (including the other parent
lifestyle, culture and traditions) of the child and of
either of the child’s parents, and any other
characteristics of the child that the court thinks are
relevant;
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Common myths Parenting Plans
• I pay child support therefore I have a right to see • What are they?
my kids • Are they compulsory?
• I am going to get full custody • What happens if parents don’t want to do
• He said that if I left I would never see my kids parenting plans?
again
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Disclaimer
• This presentation is not legal advice.
• This presentation is for education purposes.
FAMILY LAW SERIES • If you have a specific legal matter, you are
encouraged to seek legal advice.
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Child Support and Child
Training Aim and Objectives
Maintenance
• By the end of this session, you will be able to: • What is the difference?
– Understand the law that applies to child support and
maintenance
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Child Support Agreement Adult Child Maintenance
• Gives parents flexibility in the way they arrange • Under s 66L, Adult child maintenance can be
child support payments and can be used instead ordered by the Family Court if such maintenance
of the CSA making an assessment. required to:
• The amount of child support in the agreement (a) to enable the child to complete his or her
must be at least the amount that would have education; or
been payable using the set formula. (b) because of a mental or physical disability of
• An agreement can only be changed by a new the child.
agreement.
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Questions
• Any questions
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Disclaimer By the end of this session
• This presentation is not legal advice. • You should:
• This presentation is for education purposes. – be familiar with different types of family violence
• If you have a specific legal matter, you are – be aware of family violence indicators
encouraged to seek legal advice. – be aware of how family violence laws and family laws
interconnect
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Information obtained from “The Health Costs of Violence”- Vic Health study- June 2004
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Does the Family Court take into Compulsory family dispute
account family violence issues? resolution
• If there is a family violence order (intervention order) in • Post July 2007, parties must attend family
place, the parties must inform the court of its existence. dispute resolution (sometimes called mediation)
• However, no penalties if the court is not informed. (s 60I)
• The order may apply to a child or a member of the
BUT
child’s family (s 60CF)
• The court should make an order that is: • Exemption re: family violence and child abuse (s
a) consistent with family violence orders and 60I)
b) do not expose a person to an unacceptable risk of
violence: Subject to ‘best interests’ of the child (s 60CF)
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Violence and Family Court
Family Law Injunction
Orders
• Under the Family Law Act 1975 (Cth), the court • When considering where a child should reside, with
whom a child should have contact or any other relevant
has the power to grant injunctions restraining issues, the Family Court must consider as paramount
one party from molesting, assaulting, harassing the best interests of a child. This includes:
• any family violence involving the child or a member of
or interfering with the other party or with the the child's family;
children of the marriage and from entering upon • any family violence order that applies to the child or a
premises occupied by the other party. member of the child's family;
• the need to protect the child from physical and
psychological harm that may be caused by abuse or by
being directly or indirectly exposed to abuse, ill
treatment, violence or other behaviour that is directed
towards or may affect another person.
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Adoption Who can adopt?
• In Australia adoptions are the responsibility of the State • For more information contact the Adoption and
governments. In Victoria, the adoption process is
governed by Adoption Act 1984 (Vic) Permanent Care Team via the Dept of Human
• All adoptions of children by residents of Victoria are Service (Vic): http://www.cyf.vic.gov.au/
conducted through the Department of Human Service.
• Adoption is a legal process where the rights and
responsibilities of the birth parents are transferred to the
adoptive parents. There are two types of adoption: local
(i.e. from within Australia) and intercountry (i.e. from
other countries).
• Private adoptions (i.e. adoptions where a child is placed
with adoptive parents without the involvement of an
agency) are illegal in Victoria.
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Location & Recovery Orders Children taken overseas
• These orders are provided for by sections 67J and 67Q • The 1980 International Child Abduction Hague
of the Family Law Act 1975 and cover the situation Convention provides for the return of children
where a person is prevented from having contact with
from one member country to which they have
their children because the other parent has taken the
children without disclosing their whereabouts. been taken, to the member country of their
• In appropriate circumstances the court can order that origin. These applications are dealt with by a
any body which may have knowledge of the other specialist section of the Victorian Crown
parent's whereabouts to disclose this information to the Solicitor's Office.
court. Such orders are commonly made to obtain
information from Centrelink, the ATO, banks etc
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Any questions?
Family Dispute Resolution
Potential Roles for the Muslim
Community
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Family Dispute Resolution Mediation
• A form of family dispute resolution.
• “a process (other than a judicial process): • Many different models.
• (a) in which a family dispute resolution • Can be described as
practitioner helps people affected, or likely to be – “intervention into a dispute or negotiation by an acceptable,
affected, by separation or divorce to resolve impartial and neutral third-party who has no authoritative
some or all of their disputes with each other; and decision-making power to assist disputing parties in voluntarily
reaching their own mutually acceptable settlement of issues in
• (b) in which the practitioner is independent of all dispute.” (Moore)
the parties involved in the process.” (FLA s.10F)
• Consensus bargaining.
• To be required pre-filing. (s.60I)
• Party control.
• Helping and non-adjudicative.
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Mediation Process Mediation Process
4. Clarifying and exploring issues. 5. Private sessions
– Parties discuss the issues on the agenda. – Each party meets privately with the mediator.
– Feelings and perspectives are exchanged. – Aim is for the mediator to understand how each party
– “Roshan, tell Mohammed how it makes you feel when is feeling about the process and the negotiations.
…” – Opportunity to develop some options, and reality
– Options are generated. check ideas.
– “Mohammed, what do you think you could do – Mediator will challenge entrenched positions and try
differently to …” to encourage compromise.
– Mediators summarise, reframe, repeat, ask questions, – Mediator helps parties to rehearse negotiations.
ask the parties to talk directly to each other.
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Impediments to these
approaches?
• Funding.
• Scoping exercise – Government support.
• Training of Muslims in dispute resolution skills.
• Training of Muslims in issues relating to domestic and Any questions?
family violence.
• Negative view in certain parts of the community that this
is ‘creeping Shariah’.
• Misunderstanding from many parts of the Muslim
community what is mediation.
• Mediation is part of Shariah.
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