Examine the nature of family law, the legal definition of family, and the role of the Family Law Act 1975 (Cth) and the Federal Circuit and Family Court of Australia

What this dot point is asking

NESA wants you to know what family law covers, how it has changed, and which institutions decide family law matters. Expect a 5-6 mark short answer or as background for a Section IV extended response.

The answer

Defining family

The legal definition of "family" has changed substantially. In the 19th and early 20th centuries, the law recognised only the nuclear family formed by lawful heterosexual marriage. Today, the Commonwealth and the states recognise multiple family forms:

• nuclear families;
• single-parent families;
• blended families;
• de facto couples (Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth));
• same-sex couples (Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth));
• families with children born through assisted reproductive technology or surrogacy;
• Aboriginal and Torres Strait Islander kinship structures, recognised in part through s 60CC(3) of the Family Law Act 1975 (Cth) and state child protection statutes.

The Family Law Act 1975 (Cth)

The Family Law Act 1975 (Cth) is the central piece of Commonwealth family law legislation. Key features:

• No-fault divorce. Section 48 establishes the sole ground for divorce: irretrievable breakdown of the marriage, evidenced by 12 months of separation. Before the Family Law Act 1975 (Cth), divorce required proof of a matrimonial offence under the Matrimonial Causes Act 1959 (Cth).
• Best interests of the child as the paramount consideration in parenting matters. Section 60CA.
• Property settlement. Sections 79 and 90SM. The court applies a four-step process (identify assets, assess contributions, assess future needs, evaluate justice and equity).
• De facto financial matters. Part VIIIAB.
• Family violence. Part VII Division 11. Strengthened by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth).

The Act has been amended substantially over time, most recently by the Family Law Amendment Act 2023 (Cth), which removed the presumption of equal shared parental responsibility (from May 2024) and centred decisions explicitly on the best interests of the child.

The Federal Circuit and Family Court of Australia (FCFCoA)

Until 2021, family law was administered by two separate courts: the Family Court of Australia (established 1976) and the Federal Circuit Court of Australia (established 1999). The Federal Circuit and Family Court of Australia Act 2021 (Cth) merged them. The current structure:

• FCFCoA Division 1 (formerly the Family Court). Hears complex family law matters, including those involving allegations of family violence.
• FCFCoA Division 2 (formerly the Federal Circuit Court). Hears most family law matters in the first instance.

Western Australia retains its own Family Court of Western Australia, established under the Family Court Act 1997 (WA), which exercises both state and federal family law jurisdiction.

Section 51(xxi) and (xxii) of the Constitution

The Commonwealth's power to legislate on marriage and divorce derives from s 51(xxi) (marriage) and s 51(xxii) (divorce and matrimonial causes) of the Constitution. The states retain power over de facto and family violence matters, though they have referred most de facto financial powers to the Commonwealth.

Dispute resolution before court

Most family law disputes are resolved without a court hearing. The Family Law Act 1975 (Cth) s 60I requires parties to attempt family dispute resolution (mediation) before applying for parenting orders, except in cases of family violence or urgent risk. Family Relationship Centres provide subsidised mediation across Australia.