Family is difficult to define because of many people living in different kinds of personal relationships which they regard as a family in Australian society. The notion of what constitutes a family has constantly undergone substantial changes over the last thirty years. The Australian Bureau of Statistics defines family as “two or more persons…….who are related by blood, marriage, adoption, step or fostering and who are usually resident in the same household”. The law has taken into recognising and protecting members of alternate family relationships. These relationships include Aboriginal and Torres Strait Islander peoples’ customary law marriages, single-parented families, blended families, same-sex relationships, polygamous marriages, de facto relationships and other family arrangements. Family law relies heavily on the social values of the society it represents.
Divorce is defined as the legal dissolution of a marriage. According to s 48 of the Family Law Act, the only ground for divorce is the irretrievable breakdown of the marriage. Prior to the concept of divorce, married couples had to apply for divorce under the Matrimonial Causes Act 1959 on the ground of “fault”. This meant that in order to divorce, one or both spouses had to prove that they engaged in acts of adultery, cruelty, insanity and desertion. The Family Law Act eventually removed that ground of divorce and established the Family Court. For divorce to legally occur, both parties must live separately and apart for a period of 12 months and then both parties are free to marry another person once the divorce process is complete. If children are involved, all issues involving children have to be resolved before even the dissolution application is approved. Under Part VII of the Family Law Act, any disputes concerning children must be decided in the best interests of the child. The best interests are determined by reference to primary and additional considerations set out in s 60CC of the Act. The primary conditions include a child’s right to maintain a meaningful relationship with both parents and the need to protect the child from harm. Additional considerations include factors that may modify the ability of parents to share the parenting of the child equally, such as views of the child, nature of each child’s relationship with each parent and where the parent lives. Parenting plan is voluntary and both parties must comply.
With disputes to property, if the separating couple reach an agreement as to the allocation of property and want to formalise it and make it binding, they can apply under the Family Court for consent orders. A legally binding order is made if the division of property is fair and equitable. If they cannot come to an agreement, both parties are encouraged to attend a compulsory conciliation conference with a Family Court Registrar to assist in this area. When the court is determining property allocation under ss 75 and 79 of the Act, the court has to consider issues such as age of both parties, income, financial and non-financial contribution to the property by both parties.
Domestic Violence is an issue that family relationships face in Australian Family Law. Domestic violence is personal violence committed against someone with whom the offender has or had a domestic relationship as stated in the Crimes Act 2007. In a survey that was conducted in 2002 and 2003, one-third of women have experienced violence from a current or former partner at some time during their lifetime. This issue is one of the most common forms of assault and is also one that goes unreported. In recent years, there have been changes to the law such as the strengthening of AVOs under the Crimes Act 2007, creating domestic violence offences under the Crimes Act and taking into account family violence in consideration of parenting orders by the Family