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.
A Court’s power to make an order altering the parties’ interest in a property is conditioned upon the Court has found that it is just and equitable to make such an order, the just and equitable requirement permeates the process in which the Court is engaged.
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:
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.”
What is the position in regard to unsecured liabilities? Secured liabilities are easily determined and are taken into account when determining the net relationship assets.
Critical Assessment
Critical to the assessment of the Balance Sheet (the net relationship assets) is a consideration of the argument concerning add-backs.
As a consequence of the decision in Stanford, the practice of “adding-back” notional assets into the pool at Step 1 had been eschewed but that does not mean add-backs are not able to be taken into account.
The issue of add-backs was recently considered by the Full Court in Trevi & Trevi [2018] FamCAFC 173 where the Full Court held
“In Stanford v Stanford, the High Court emphasized as fundamental that consideration of whether it is just and equitable to make a property settlement order begins by “identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property”.
The essence of a claim for attacks is that the asserted sum/s should be added to the value of the existing property interests of the parties and, subsequent to the assessment of contributions, credited to the spending party as part of the value of their assessed entitlements. Doing so does not offend what was emphasized by the High Court.
The three clear categories
“The Full Court held in Omacini and Omacini that attacks fall into “three clear categories”: where the parties have expended money on legal fees; where there has been a premature distribution of matrimonial assets; and “waste” or wanton, negligent, or reckless dissipation of assets.
However, the Full Court also made it clear that an attack does not necessarily occur whenever “a party has expended money realized from the disposition of assets that existed as at the date of separation”, the Full Court describing such a proposition as “unduly simplistic”. An earlier Full Court made the same point, saying that adding back is “the exception rather than the rule”.
The fundamental precept that addbacks are exceptional, reflected in the decisions just referred to, also mirrors what has been said in earlier decisions of the Full Court that, for example, “the Family Court must take the property of a party to the marriage as it finds it” at trial. An important parallel proposition is that the parties do not “go into a state of suspended economic animation” after separation.
Step 2 – Contributions
The contribution assessment is very much a matter of the subjective opinion of an adjudicator. The property jurisdiction is a discretionary one and there is a generous ambit within which a reasonable disagreement is possible.
For ease of comparison and calculation, it will be convenient in assessing the overall contributions of the parties at some stage to place the two types of contribution on the same basis, i.e. on a global or, alternatively, on an “asset-by-asset” basis. Which of the two approaches is the more convenient will depend on the circumstances of the particular case.
However, there is much to be said for the view that in most cases the global approach is more convenient. It follows that the Full Court is quite entitled to prescribe that approach as a guideline in order to promote uniformity of approach within the Court.
Brennan J agreed with the majority and said (at 541):
The present case, however, does not involve the Family Court’s authority to prescribe either a legal rule controlling or a guideline affecting the exercise of discretion. The global approach which the Full Court of the Family Court regarded as appropriate in the present case is not a guideline affecting the order which should be made.
The global approach is no more than a procedure for determining the exercise of discretion. It is a procedure that tends to shorten the hearing so as to avoid sapping the finances of the parties and engendering further ill-feeling between them.
The primary judge’s adoption of the asset by asset approach in lieu of the global approach was not an error affecting the validity of the order which he made. There is no logical foundation for concluding that one approach should produce, at the end of the day, an order different from, or preferable to, the order which the other approach would produce.
Pierce is now considered the authority for the following proposition;
In our opinion, it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all the other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution. In the present case that use was a substantial contribution to the purchase price of the matrimonial home...”
Step 3 – section 75(2) family law act factors
Section 75 (2) is a section of the Family Law Act that determines what a court must consider in making a decision on how to distribute the property and whether to order in contact with the wife at the end of the marriage (known as “maintenance” for the rest of this article).
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.
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”.
Here another guide you may find helpful about Family Law and Social Media
Article Source: https://jamesnoblelaw.com.au/family-law-act-1975/
