The Family Law Act 1975 is the Law.
Family Law comprises three areas:- Divorce; Children and Matrimonial Property, including property of a de facto marriage.
Since the introduction of the Family Law Act, there has been no requirement for any “fault” or cause in order to apply for a Divorce. The process is simple and the Family Court provides a readily accessible Kit for people wishing to obtain a Divorce easily. If there are children of the marriage under the age of 18 then the Court will need to be satisfied as to the parenting arrangements. In such a circumstance, it is necessary for the applicant party to appear at Court and make submissions.
The concept of "fault" however can impinge upon a property settlement and/or the way a Court might order the care of a child. In this regard, a party to a marriage or de facto marriage who has suffered at the hands of the other party such that their contributions have been rendered more burdensome may be regarded as having made a greater contribution due to that added burden.
Apart from Divorce, the two other areas – Children and Property - can be related insofar as the law provides for an alteration of property interests to be based primarily upon Contributions to the value of the matrimonial pool of assets. Those contributions may be seen as adjustable where one party, eg., maintains the care of children, as a prospective contribution following the breakdown of the relationship, or, where a party has a disability or difficulty in earning a reasonable living.
How, for example, matrimonial property is to be dealt with upon the breakdown of a marriage or de facto marriage is set out under the terms of s.79(4) and modified by ther matters set out in section 75(2). Nowhere, for example, is there a presumption that simply having existed within a relevant relationship somehow entitles a party to an interest in that matriminial property. The words of the Act are clear: "Contributions". Whilst it may be that Contributions can arise in various ways, it is still the legal requirement that there be Contributions.
Due to this requirement, an assessment needs to be made. There is no presumprion of having made any contribution, and certainly no presumption that any assessment commences or involves a predication of equal interests or equal contributions.
Contributions, of whatever kind, should materially, or at least indirectly, create, maintain or improve Property. It is the Contributions to Property that are relevant. Those contributions can include such indirect measures as suppor toward the welfare of the family, this often being in the form of Homemaker and Mother. In this regard, the Marriage (or other relevant relationship) must be seen as a joint matrimonial enterprise: it is that enterprise, and not either of the parties to it, that creates the relevant bounty. Simply by being the breadwinner cannot disentitle the other party despite that other party having provided and contributed all manner of non-financial and otherwise indirect support and value. Again, there must actually have been Contributions.
It is nevertheless stressed that these contributions, whether of material value or of indirect value, must actually contribute to (a) the acquisition, maintenance or improvement of Property, or (b) the Welfare of the family. Simply being in a relationship cannot of itself be considered in any proposed property settlement.
Issues relating the care and maintenance of children, however, are rarely dealt with in this office because we do not provide Legal Aid. For some reason, most Family Law matters do not relate to parenting issues unless there is a grant of Legal Aid in place. Parties who own property, however, are usually ineligible for Legal Aid and are able to settle the issues relating to their children sensibly and without the need for Government intervention. The present, legally aided situation vis childrens' matters results in a whole body of jurisprudence that exists almost exclusively due to Legal Aid funding...
On this point, it is pertinent to refer to the present Senate Inquiry into the operation of the Family Law Courts and possible merging of the Family Court with the Federal Circuit Court. The business of these Courts is said to be stressed to the limit with over-worked judges and long back logs of cases. It is submitted that were Legal Aid to be removed from the equation then these problems would substantially evaporate.