What is the family law act 1975?
Family law act 1975 is the Laws relating to marriage and divorce and the reasons relating to marriage and with it and otherwise the financial responsibility of the parents of the children and the de-facto relationship and some other matters relating to divorce.
What is the purpose of the Family law act 1975?
The Family Law Act 1975 focuses on the rights of children and the responsibilities that every parent has towards their child instead of the rights of parents. This law aims to ensure that children enjoy a meaningful relationship with each of their parents and are protected from harm.
What does the Family Law Act 1975 do?
The Family Law Act 1975 actually focuses on the rights of children, and also the responsibilities of their parents to have their children, rather than on parental rights. Family Law Act 1975 ensures that children can always enjoy a meaningful relationship with their parents, and also protected from harm.
Determining issues at Family law Act 1975
When the Court makes a determination on property issues it takes into account the provisions of the Family Law Act 1975 and in particular the approach for the determination of an application under section 79 of the Family Law Act.
The principles are well established by authorities (in the marriage of Lee Steere (1985) FLC 91-626; in the marriage of Ferraro (1993) FLC 92-335; in the marriage of Clauson (1995) FLC 92-595 and involves consideration of the following factors where superannuation is not a relevant factor:
What were the assets, liabilities, and financial resources of the parties and values at the time of the hearing;
What were the financial and non-financial contributions made directly or indirectly by or on behalf of each party to the acquisition, conservation, or improvement of the property of the parties?
What was the contribution of each party to the welfare of the family including contributions made in the capacity of homemaker or parent;
What is the effect, if any, of any proposed order upon the earning capacity of each party;
What matters referred to in subsection subjection 75 (2) of the Family Law Act are relevant and what adjustment, if any, should be made as a result of these factors. (this will be referred to later);
Have there been any other orders made affecting a child or either party and is child support payable or likely to be payable in the future for the children of the marriage;
After consideration of these matters, is just and equitable to make the actual orders.
The High Court said in Stanford at paragraph 36 that:
“The expression ‘just and equitable’ is a qualitative description of a conclusion reached after the examination of the range of potentially competing considerations. It does not admit to an exhaustive definition. It is not possible to chart its metes and bounds.”
In terms of what matters might be taken into account in determining whether it is “just and equitable” to make orders altering existing interest in the property, in Bevan, Bryant CJ said in paragraph 84 as follows:
“Just as the expression ‘just and equitable’ does not admit of exhaustive definition it is not possible to catalog the ‘range of potentially competing considerations’ that may be taken into account when determining whether if it is just and equitable to make an order altering property interests.
The High Court in paragraph 42 of Stanford noted:
“In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as a result of choice made by one or both of the parties, the Husband and the Wife are no longer living in a marital relationship.
It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of the property by the Husband and the Wife.
No less importantly, the express and implicit assumptions that underpin the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship.”
Family law act 1975: Disclosure
The Full Court of the Family Court in Kannis & Kannis [2002] FamCA 1150 held that “Whether the non-disclosure is wilful or accidental, is a result of misfeasance, or malfeasance or nonfeasance, is beside the point. The duty to disclose is absolute.
Where the Court is satisfied the whole truth has not come out it might readily conclude the asset pool is greater than demonstrated. In those circumstances, it may be appropriate to err on the side of generosity to the party who might be otherwise be seen to be disadvantaged by the lack of complete candor.” See also Chang and Su (2002) Fam CA 156 and Weir v Weir (1993) FLC 92-338.
Family law act 1975: Superannuation splitting
Prior to the introduction of the superannuation splitting regime into the FLA superannuated spouses often had to trade away an asset in exchange for an asset (superannuation) that may not be realized for many years, resulting in one party with a realized asset such as a house and cash, yet with no retirement income and the other party with no realizable asset but often a significant retirement income.
The superannuation splitting regime brought about a fundamental change to that problem by recognizing superannuation as property and enabling it to be “split”.
Article Source: Best Family Lawyer Brisbane - https://jamesnoblelaw.com.au/family-law-act-1975/