EXPLANATORY STATEMENT
Family Law Act 1975
Proclamation
This Proclamation sets 11 February 2012 as the date on and from which the Family Court of Australia under paragraph 31(1)(aa) of the Family Law Act 1975 (the Act) may exercise its jurisdiction in respect to de facto financial causes instituted under the Act in New South Wales, Victoria, Queensland, South Australia, Tasmania, Australian Capital Territory, Northern Territory and Norfolk Island.
The Act provides for divorce and the resolution of disputes arising from the breakdown of a marriage and relationships, including disputes over the division of property and parental responsibility for children.
Sub-section 40(1) of the Act provides that the jurisdiction of the Family Court of Australia under the Act shall not be exercised except in accordance with a Proclamation. Sub‑section 40(2) then provides for the power of the Governor-General to fix a date, by Proclamation, from which the relevant jurisdiction can be exercised.
Paragraph 31(1)(aa) confers original jurisdiction on the Family Court of Australia with respect to matters arising under the Act in respect to de facto financial causes instituted under the Act.
The Proclamation was drafted by the Office of Legislative Drafting and Publishing. No consultation was required given the administrative nature of the instrument.
The Proclamation is registered on the Federal Register of Legislative Instruments under the Legislative Instruments Act 2003.
Authority: Subsection 40(2) of the Family Law Act 1975.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Proclamation Family Law Act 1975
This Proclamation is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Proclamation
The purpose of the Proclamation is to enable the Family Court of Australia to exercise its original jurisdiction with respect to de facto financial causes conferred on it in 2008 by the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 to provide for opposite-sex and same‑sex de facto couples to access the federal family law courts on property and maintenance matters.
Human rights implications
The Proclamation promotes the rights of equality and non-discrimination contained in Articles 2 and 26 of the International Covenant on Civil and Political Rights (ICCPR). These Articles are aimed at ensuring that people are treated equally before the law and without discrimination. The Proclamation promotes these rights as it enables the Family Court of Australia to deal with matters concerning de facto financial arrangements upon breakdown of those relationships in the same way as married couples. The Proclamation means that the Family Court can exercise its jurisdiction to provide de facto couples covered by the Act, including same-sex de facto couples, a nationally consistent financial settlement regime.
The Proclamation is also consistent with the right to a fair trial in Article 14(1) of the ICCPR. Without the Proclamation, the financial arrangements between separated de facto couples would be subject to State and Territory law, and these laws vary between jurisdictions. Enabling the Family Court to exercise its jurisdiction minimises jurisdictional disputes and uncertainties that sometimes impede settlement of these matters under State and Territory law.
Conclusion
The Proclamation is compatible with human rights because it advances the protection of human rights.
Overview
The Family Law Act 1975, enacted by the Commonwealth Parliament, was established to provide for the dissolution of marriages and the resolution of disputes arising from the breakdown of a marriage, including those over property division and parental responsibility for children. In 2012, a Proclamation was issued under subsection 40(2) of the Act to allow the Family Court of Australia to exercise its jurisdiction in respect of de facto financial causes instituted under the Act in several states, territories, and Norfolk Island. This was done to provide a nationally consistent financial settlement regime for both opposite-sex and same-sex de facto couples, thereby promoting equality and non-discrimination in accordance with human rights obligations. The Proclamation facilitates access to federal family law courts for de facto couples on property and maintenance matters, ensuring a fair and consistent approach to financial arrangements following the breakdown of de facto relationships.
Scope and Application
The Family Law Act 1975 governs divorce and the resolution of disputes arising from the breakdown of a marriage and relationships, including property division and parental responsibility for children. The Proclamation under consideration sets 11 February 2012 as the date from which the Family Court of Australia can exercise its jurisdiction in respect to de facto financial causes instituted under the Act across New South Wales, Victoria, Queensland, South Australia, Tasmania, the Australian Capital Territory, the Northern Territory, and Norfolk Island. This jurisdictional reach ensures that de facto couples, including same-sex couples, have access to a nationally consistent financial settlement regime through the federal family law courts. The Proclamation is necessary as the Act's sub-section 40(1) mandates that the Family Court's jurisdiction can only be exercised in accordance with such a Proclamation, with sub-section 40(2) empowering the Governor-General to fix the relevant date by Proclamation. The jurisdictional extension under the Proclamation is administrative in nature and therefore did not require consultation, although it is registered under the Legislative Instruments Act 2003. The Proclamation aligns with human rights by promoting equality and non-discrimination, ensuring that de facto couples are treated the same as married couples, and providing a fair trial by reducing jurisdictional uncertainties inherent in varied state and territory laws.
Key Provisions
The Family Law Act 1975, through Proclamation F2012L00240, specifies the date from which the Family Court of Australia can exercise its jurisdiction in respect to de facto financial causes in certain Australian jurisdictions. This jurisdiction, under paragraph 31(1)(aa), was conferred by the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008, and is effective as of 11 February 2012 in New South Wales, Victoria, Queensland, South Australia, Tasmania, Australian Capital Territory, Northern Territory, and Norfolk Island. This legislation allows the Family Court to handle disputes arising from the breakdown of de facto relationships, including those over the division of property and parental responsibility for children, similarly to how it handles disputes from married couples.
The Act imposes specific obligations on the Family Court of Australia, ensuring that its jurisdiction is exercised only as per the terms of the Proclamation. Section 40(1) of the Act mandates that the jurisdiction can only be exercised in accordance with a Proclamation, while section 40(2) empowers the Governor-General to set a date by Proclamation for the exercise of this jurisdiction. This legal framework ensures that the Family Court's actions are consistent with federal legislative intent and provide a uniform approach to de facto financial matters across specified jurisdictions.
Failure to comply with the requirements set out in the Act and the Proclamation can lead to various legal consequences. While the specific offences, penalties, or consequences for non-compliance are not detailed in the Proclamation, the Act generally provides for both civil and criminal penalties. These can include fines and imprisonment for breaches of court orders or other provisions within the Act. The exact penalties would depend on the nature and severity of the breach, as outlined in the relevant sections of the Family Law Act 1975. The Act ensures that those who misuse the court's jurisdiction or who fail to comply with court orders face appropriate legal repercussions.