The nature of family law and the Family Law Act 1975 (Cth): HSC Legal Studies

What this dot point is asking

This is the first part of the Family option in the Legal Studies Stage 6 Syllabus (2009), which is examined in the 2026 and 2027 HSC. Students learn about the concept of family law, legal requirements of marriage, alternative family relationships, legal rights and obligations of parents and children, and adoption. The "learn to" statements ask you to discuss the difficulty of defining 'family' and the changing concepts of family, distinguish between state and federal jurisdiction in family law, and explain the legal rights and obligations of parents and children, including those derived from international law.

Marriage and alternative family relationships have their own page (legal recognition of relationships). This page covers the concept of family law, jurisdiction, the Family Law Act 1975 (Cth) and its courts, parents' and children's rights and obligations, and adoption. Every Family question is a 25-mark extended response, so this material is the foundation for judgements about the themes: cooperation and conflict, compliance, changing values, law reform and the effectiveness of legal and non-legal responses.

The answer

The concept of family and family law

Family law is the body of law that regulates the formation, operation and breakdown of family relationships: marriage and de facto relationships, the rights and obligations of parents and children, divorce and separation, property and maintenance, child protection, adoption and family violence.

Why "family" is difficult to define. There is no single legal definition. Each statute defines family for its own purposes:

• the Family Law Act 1975 (Cth) uses "member of the family" and, since the Family Law Amendment Act 2023 (Cth) commenced on 6 May 2024, expressly recognises Aboriginal and Torres Strait Islander concepts of family and kinship;
• the Crimes (Domestic and Personal Violence) Act 2007 (NSW) protects people in a "domestic relationship", which includes partners, relatives, people living in the same household and paid or unpaid carers (s 5);
• the Children and Young Persons (Care and Protection) Act 1998 (NSW) recognises relatives and kin who may care for a child.

Changing concepts of family. Until the late 20th century the law recognised only the nuclear family formed by a lawful heterosexual marriage. Recognition has widened in response to changing community values:

• 1975: no-fault divorce under the Family Law Act 1975 (Cth);
• 1980s to 2009: states referred ex-nuptial children and de facto property to the Commonwealth, so children and de facto partners are treated consistently with married families;
• 2008: the Same-Sex Relationships (Equal Treatment in Commonwealth Laws - General Law Reform) Act 2008 (Cth) removed discrimination against same-sex couples and their children in about 85 Commonwealth laws;
• 2010: same-sex couples could adopt in NSW (Adoption Amendment (Same Sex Couples) Act 2010 (NSW));
• 2017: marriage equality (Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth));
• 2024: kinship recognised in the Family Law Act definitions.

The law now recognises nuclear, single-parent, blended, de facto (same-sex and opposite-sex), kinship, ART and surrogacy-formed families. The ABS reported 118,804 marriages and 49,158 divorces in 2025, with a median of 13.4 years from marriage to divorce (ABS, Marriages and Divorces, Australia, 2025).

State and federal jurisdiction

This is a "learn to" statement and a favourite question (2024 HSC Q27(a)).

The Commonwealth's powers. Section 51 of the Constitution gives the Commonwealth power over:

• s 51(xxi) marriage;
• s 51(xxii) divorce and matrimonial causes, and in relation to them, parental rights and the custody and guardianship of infants.

These powers only covered married couples and their children. The states used s 51(xxxvii) to refer extra power:

• children of unmarried parents (NSW: Commonwealth Powers (Family Law - Children) Act 1986 (NSW)); and
• de facto property and maintenance (NSW: Commonwealth Powers (De Facto Relationships) Act 2003 (NSW)), which took effect with the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) from 1 March 2009 (South Australia from 1 July 2010).

Western Australia did not refer these powers. It has its own Family Court of Western Australia (Family Court Act 1997 (WA)), which applies the Family Law Act to married couples and WA law to de facto couples.

The states keep

child protection, adoption, domestic violence orders and offences, surrogacy and ART, births, deaths and marriages registration, relationship registers and succession.

Inconsistency

Under s 109 of the Constitution a valid Commonwealth law prevails over an inconsistent state law (territory laws are subject to an equivalent rule in their self-government Acts). In Commonwealth v Australian Capital Territory (2013) 250 CLR 441 the High Court held the ACT's same-sex marriage Act invalid because the Marriage Act 1961 (Cth) covered the field of marriage.

Why the split matters

A single family can be in several systems at once: an ADVO in the NSW Local Court, parenting proceedings in the Federal Circuit and Family Court, and a child protection investigation by the Department of Communities and Justice. The family court can revive, vary or discharge a state family violence order that is inconsistent with a parenting order (Family Law Act s 68R). ALRC Report No 135, Family Law for the Future (2019), found that this fragmentation causes gaps, delay and risk for children, and recommended that governments consider returning first-instance family law decisions to state and territory courts. That recommendation was not adopted. The Commonwealth instead merged its own courts.

The Family Law Act 1975 (Cth)

The Family Law Act 1975 (Cth) is the main source of federal family law. Its key features:

• No-fault divorce. Section 48: the only ground is irretrievable breakdown, shown by 12 months of separation. It replaced the fault grounds of the Matrimonial Causes Act 1959 (Cth).
• Children (Part VII). The best interests of the child are the paramount consideration (s 60CA), assessed using the s 60CC factors, which the Family Law Amendment Act 2023 (Cth) rewrote with child safety first (from 6 May 2024).
• Property and maintenance. Section 79 (married couples) and s 90SM (de facto couples). The Family Law Amendment Act 2024 (Cth) codified the steps courts follow and required them to consider the economic effects of family violence (from 10 June 2025).
• Family dispute resolution. Section 60I requires a genuine attempt at family dispute resolution before parenting proceedings, subject to exceptions for family violence, child abuse and urgency.
• Family violence. Section 4AB defines family violence as violent, threatening or other behaviour that coerces or controls a family member or causes them to be fearful, including economic and financial abuse, which the 2024 Act made a stand-alone example.

The courts

Federal Circuit and Family Court of Australia (FCFCoA). The Federal Circuit and Family Court of Australia Act 2021 (Cth) merged the Family Court of Australia (1976) and the Federal Circuit Court from 1 September 2021 into one court with two divisions:

• Division 1 (the former Family Court): complex matters and appeals;
• Division 2 (the former Federal Circuit Court): the single point of entry for most family law applications.

The court uses risk screening for family violence (the Lighthouse approach) and a specialist list for high-risk family violence matters (the Evatt List). Most parenting and property disputes are settled by agreement, mediation or consent orders rather than by a judge after a trial.

Non-court responses. Family Relationship Centres, family dispute resolution practitioners, Legal Aid NSW's family law conferencing and community legal centres help people resolve matters without litigation. Non-government organisations and the media influence reform: the media coverage of family violence homicides contributed to the 2023 and 2024 reforms.

Legal rights and obligations of parents and children

Parental responsibility. Each parent has parental responsibility for a child under 18, subject to court orders (Family Law Act s 61C). It means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children (s 61B). It continues after separation unless a court changes it.

Obligations of parents:

• Maintenance. Parents have the primary duty to maintain their children (s 66C). Child support is assessed and collected under the Child Support (Assessment) Act 1989 (Cth) and Child Support (Registration and Collection) Act 1988 (Cth), administered by Services Australia.
• Education. In NSW a child must be enrolled in school from age 6, and must stay at school until Year 10 and then remain in education, training or employment until 17 (Education Act 1990 (NSW)).
• Care and protection. Parents must provide adequate care; neglect and abuse can lead to intervention under the Children and Young Persons (Care and Protection) Act 1998 (NSW), and a parent who fails to provide necessities can commit an offence.
• Discipline. Physical punishment is lawful only if reasonable (Crimes Act 1900 (NSW) s 61AA). Force applied to the head or neck (unless trivial), or force likely to cause harm lasting more than a short period, is not reasonable.

Rights of children:

• Best interests. In parenting cases the child's best interests are paramount (s 60CA), and courts must consider the child's views (s 60CC(2)(b)).
• Medical decisions. A child who has sufficient maturity and understanding may consent to their own treatment (Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112, applied in Australia in Secretary, Department of Health and Community Services v JWB and SMB (Marion's case) (1992) 175 CLR 218). In NSW, treatment of a child aged 14 or over given with the child's consent is protected (Minors (Property and Contracts) Act 1970 (NSW) s 49). Marion's case also held that some special medical procedures need court authorisation.
• Independent representation. In complex cases an independent children's lawyer can be appointed. Since 6 May 2024 the lawyer must meet the child and give them a chance to express views, subject to exceptions (s 68LA).

Rights derived from international law. The Convention on the Rights of the Child (1989), ratified by Australia in December 1990, is the key source:

• art 3: best interests of the child a primary consideration;
• art 7: the right to know and be cared for by their parents;
• art 9: not to be separated from parents against their will unless necessary for their best interests;
• art 12: the right to express views and be heard;
• art 19: protection from all forms of violence and abuse.

The Convention is not directly enforceable in Australian courts, but the Family Law Act states that an object of Part VII is to give effect to it (s 60B), which courts can use in interpretation.

Adoption

Adoption is a state matter. In NSW it is governed by the Adoption Act 2000 (NSW):

• Paramount principle. The best interests of the child, in childhood and later life, are paramount.
• Open adoption. The Act favours openness: adoption plans can provide for contact and information exchange with birth families.
• Consent. Birth parents must give informed consent after counselling, and may revoke it within 30 days (s 73). A child aged 12 or over who is capable of consenting must consent (s 55), unless the court dispenses with consent.
• Aboriginal and Torres Strait Islander children. The Act applies special placement principles that prefer placement with the child's extended family, community or other Aboriginal people, and adoption is a last resort.
• Who can adopt. Couples (married or de facto, including same-sex couples since 2010) and single people, subject to assessment.
• Out-of-home care. Since the Child Protection Legislation Amendment Act 2014 (NSW), adoption has been part of the permanency hierarchy for children who cannot return home.

Adoption numbers are very low: 155 adoptions were finalised in Australia in 2024-25, 136 domestic and 19 intercountry (AIHW, Adoptions Australia 2024-25). Past practices shape the law. The Commonwealth apologised for forced adoption practices on 21 March 2013, after the NSW Parliament's apology in 2012.

Evaluating the nature of family law

Judgement. The nature of family law has changed substantially to reflect changing values and the rights of children, and the Commonwealth and NSW each respond actively within their jurisdiction. Its main weakness is structural: the split between federal and state systems still leaves gaps where family violence and child protection meet parenting disputes.

In one sentence

Family law is split between the Commonwealth (marriage, divorce, parenting and property under the Family Law Act 1975 (Cth), decided in the Federal Circuit and Family Court) and the states (child protection, adoption, domestic violence and surrogacy), and it has steadily widened its concept of family and strengthened children's rights, although the jurisdictional split still leaves gaps.

Try this

Q1. Outline the legal requirements for adoption in NSW. (4 marks)

• What the marker wants. Adoption Act 2000 (NSW), best interests paramount, consent and the 30-day revocation period, child's consent from 12, Aboriginal placement principles.

Q2. Explain how the referral of powers has changed federal family law jurisdiction. (5 marks)

• What the marker wants. Limits of s 51(xxi) and (xxii), s 51(xxxvii) referrals for ex-nuptial children and de facto property, WA's position, and the effect of consistent treatment.

Q3. Evaluate the effectiveness of the law in recognising changing concepts of family. (8 marks)

• What the marker wants. Changing definitions with statutes and dates, kinship recognition in 2024, gaps from the lack of a single definition, and a clear judgement.